Sunday, May 7, 2017

The AHCA as a Betrayal of our Hopes and Aspirations for the Republic

Trump and GOP Leaders after passage of AHCA
Evan Vucci/AP
Sandy Levinson, professor of law at the University of Texas, is a powerful critic of our constitutional disorder. In a blogpost at Balkanization, he laments the manner in which Paul Ryan and the GOP Congress rammed through a bill to undo the Affordable Care Act last week. It's a symptom of our constitutional disorder he suggests.

Our constitutional disorder is built on a gerrymandered, polarized, and unrepresentative House of Representatives, and a Senate where 103 million people living in four states (CA, TX, NY, FL) are represented by 8 senators, while 101 million people living in 35 smaller states are represented by 70 senators. It is a system where our president was elected by a minority of voters, and where that minority holds all the levers of power. And our disorder is presided over by politicians whose loyalty runs to party, not to country; by politicians who don't know how to think about the good of the country.

It was not so at our founding. The 13 original states were unequal in size and population, but the three regions (Atlantic, mid-Atlantic, and South) were relatively equal in political representation, and the discrepancy of voters between the largest state, Virginia, and the smallest, Rhode Island, was not nearly so pronounced. These days, the population ratio between CA and Wyoming--with two senators each--is 66:1; the population ratio between Virginia and Rhode Island in 1790 was just 10:1.

In addition to having more equal representation among the states in Congress at our founding, we had leaders who took process more seriously than what we witnessed last week, says Levinson. We had leaders who took their role seriously, who took arguments seriously, and who took the deliberative process seriously. Levinson points to the Supreme Court's holding in McCulloch v. Maryland, upholding the right of Congress to charter the First Bank of the United States. What justified the decision in part, and what may have tipped the scale for Chief Justice Marshall, suggests Levinson, was that Congress and the President took their deliberation seriously. They fought hard, but they gave a full airing to the issues.

We fancy ourselves a Republic. "Whatever a 'republican form of government' might be said to mean," says Levinson, "it is hard to escape the view that the seriousness of the debate and the conscientiousness displayed by our first President in attempting to understand the deep issues of constitutionality [of charting the First Bank of the U.S] as well as public policy instantiated it."

Process matters, says Levinson. Good will matters. Some knowledge about the details of what you're voting on . . . or, absent that, some trusted intermediaries who have knowledge, matters.  Being able and willing to defend your position with integrity and basic honesty matters.  

Whatever anyone can say about the merits of the "American Health Care Act" rammed through the House this week, the process was deeply cynical. It completely discounted the role of argument--no hearings were held on the bill, it was rammed through before the non-partisan Congressional Budget Office could "score" it--there was no conscientiousness on display, no desire to meaningfully understand the deep and complicated issues of public policy involved in reordering one-sixth of our economy, and no commitment to basic honesty.

The raw exercise of power exhibited by Paul Ryan, Kevin McCarthy, and their GOP colleagues--to very uncertain ends--has betrayed our hopes and aspirations for the Republic.

Here is Levinson.
     "Although Hanna Volokh, among others, has suggested that legislators must in effect be responsible for actually reading and understanding the laws they vote for, in the modern world that would be a de facto impossible burden. Yet we would like to think that at least a critical mass of legislators are in fact well informed, and, just as importantly, are trustworthy in describing with some degree of accuracy what is in a bill and answering with relative honesty the questions of potential adversaries of the legislation. Similarly, the “authority” of presidents and Supreme Court justices is presumably based on something more than the sheer fact that they inhabit their particular offices. . . . 
     "With the bill just rammed through the House of Representative by Paul Ryan and his minions. . . There were no hearings whatsoever on the bill. There was no willingness to wait a week for the Congressional Budget Office to “score” the bill and provide presumptively accurate predictions about the actual number of people who would lose their insurance coverage, and so on. It is literally incredible to believe that more than a very few members of the Republican majority who voted for the bill could pass an exam on its major features. There were simply no truly trustworthy “briefers” who could possibly have devoted sufficient time to understanding all of the complexities involved in upending what is roughly one-sixth of the US economy—i.e., the medical services industry—not to mention the actual human lives who depend on that industry for their succor. . . . . 
     "So there is a genuine “legitimacy” crisis at the national level of government. We have as President a raving narcissist . . . (whose) election was the result of an indefensible electoral college system. . . . Partisan gerrymandering, though not the only explanation of the virulent polarization of that institution, is surely part of it. The so-called “Freedom Caucus” is the creation of Republican zealots who want to make sure that the November elections are irrelevant. And Paul Ryan has indicated that he has no interest whatsoever in the actual process of legislation. Getting the support of the Freedom Caucus (plus the repeated willingness of vaunted Republican “moderates” to cave and support their “party leaders”) plus supplying gigantic tax cuts for the 1% were the only thing that mattered to this devotee of Ayn Rand. . . . 
     "As always, the key question facing us is “what is to be done” as we realize, more and more, that our political system is a clear and present danger to us all. . . . . We are simply lightyears from the political system that was, more or less accurately, described by John Marshall in McCulloch. Madison, Hamilton, Jefferson, and Washington were indeed giants who took their role as leaders of the fragile new nation with the utmost seriousness, even if one pays full attention to their more human-all-too-human aspects set out in Michael Klarman’s magnificent study. . . .
Legislators need to ask themselves, what are they about?  We voters must demand answers, and pay attention.  Together we can and must do better.

Follow me on Twitter @RolandNikles

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