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  • John Stokes

    John Stokes 12:48 pm on April 17, 2012 Permalink | Reply
    Tags: , health care, healthcare reform, language of politics, Obamacare, , supreme court   

    How the language of politics could doom Obamacare 

    For politicians there are lots of topics that are simply too hot to handle. Social security reform, abortion, gay marriage — these are all crucial issues, but many politicians hate taking strong positions on them. It’s not hard to see why: Do so, and there goes the vote of an entire demographic.

    But if there’s one word, particularly in recent years, that is anathema to more than just one or another segment of the voting public, it’s the “T” word: taxes. At all costs, don’t tell people you’re hitting them with new taxes. Especially if you’re already trying to pass a controversial new mega-suite of laws like . . . say . . . Obamacare.

    That’s precisely what Obama and the Democrats did with their healthcare reform package. They took great pains to tell people that reform did not mean new taxes.

    One of the centerpieces of the bill is what the government calls the “minimum care provision.”  Its opponents prefer to call it the “individual mandate.” Whatever you want to call it, it means (almost) everybody must obtain at least some health insurance by 2014. The government claims this is necessary to keep premiums down once insurers are forced to cover people they otherwise would not.

    So far so good. But once 2014 rolls around, anybody that fails to get minimum coverage will be taxed . . . er, “penalized” . . . to cover their share of the expense. Here’s where things get tricky: Is this sanction a tax (gasp!)? Or is it a penalty? Well, in the law itself, Congress prefers to call it a penalty. This “penalty,” though, is assessed on a person’s tax returns, and the provision is even part of the tax code. It bears all the markers of a tax on those without minimum coverage, but, presumably for political reasons, Congress chose to call it a penalty instead.

    What they perhaps didn’t realize was that their refusal to call the tax a tax might cause problems for the law’s constitutionality.

    Congress has a broad authority under the Constitution to raise taxes. It uses this authority all the time to make people pay for things they might not otherwise want. Whether it be farm subsidies, alternative energy, or national defense, Congress’s tax power let’s them force us to buy things, and there’s nothing we can do about it. But Congress cannot constitutionally impose a penalty on people for refusing to buy a certain product. This is beyond even the reach of the commerce power. It’s a distinction simultaneously very fine and very intuitively obvious — the government can make you (help) pay for other people’s food stamps, but it can’t make you go out and buy broccoli.

    The Sixth Circuit jumped on this distinction, and the lawmakers’ fear of the “T” word, in one of the challenges to the health law (though it eventually upheld the law on other grounds):

    Congress might have raised taxes on everyone in an amount equivalent to the current penalty, then offered credits to those with minimum essential insurance. Or it might have imposed a lower tax rate on people with health insurance than those without it. But Congress did neither of these things, and that makes a difference. . . .

    The individual mandate is a regulatory penalty, not a revenue-raising tax . . . . That is what Congress said. It called the sanction for failing to obtain medical insurance a “penalty,” not a tax. Words matter, and it is fair to assume that Congress knows the difference between a tax and a penalty . . . making it appropriate to take Congress at its word. That is all the more true in an era when elected officials are not known for casually discussing, much less casually increasing, taxes.

    Thomas More L. Ctr. v. Obama, 651 F.3d 529, 550-51 (6th Cir. 2011) (emphasis added).

    Even once the challenge reached the Supreme Court, the government did not push the Justices to uphold the law under the Taxing Clause. Instead they focused on Congress’s broad authority under the Commerce and Necessary and Proper Clauses to regulate what they consider to be economic activity (i.e., participation in the healthcare market, which, the argument goes, all of us do simply because we are entitled to treatment whether or not we can pay, forcing those that can to pay for those that cannot). The merits of that argument are not my point here, but if you’re interested check out SCOTUSblog‘s (very thorough) coverage.

    Instead, what I’m interested in is the fact that the language of politics — avoid “taxes” at all costs — led the government to forfeit perhaps its surest defense of the law. The Sixth Circuit judge said as much in the two paragraphs above.

    At first blush, it seems silly that saying “penalty” when you mean “tax” could be the difference between blatant unconstitutionality and perfect acceptability. But perhaps Judge Martin has a point. Don’t we want to hold politicians accountable for what they say and the language they use to say it? Isn’t that especially so when that language is meant to mislead?

    That seems to be precisely what Judge Martin is doing. He’s telling politicians that he’s going to take seriously what they actually say, especially when there’s reason to believe they mean something different but don’t want to let the rest of us know.

    If the language of politics can be used to mask an unpopular proposal, then it should have to be used subsequently to defend that proposal too. To put it differently: If you want to bamboozle the voting public with deceptive language, by all means do so. Once you’ve made your bed, however, you have no choice but to lie in it.

    Oh, and when I say “lie,” there is no pun intended.

     
  • Sandeep Prasanna

    Sandeep Prasanna 11:25 am on March 30, 2012 Permalink | Reply
    Tags: , , english only, foreign language, german american, , mexican american, nebraska, supreme court, tucson   

    “Inimical to our own safety”: regulating heritage languages 

    With the country waiting for the Supreme Court to release its decision on the constitutionality of the Patient Protection and Affordable Care Act, I thought it would be fun to revisit an older Supreme Court decision — one where the Court directly considered the benefits and disadvantages of foreign language learning.

    I was inspired to check out this case, Meyer v. Nebraska, 262 U.S. 390 (1923), by a section in Lane Greene’s fantastic book You Are What You Speak: Grammar Grouches, Language Laws, and the Politics of Identity, where Greene described it in the context of fervent “English-only” activism in the US.

    The suit in Meyer v. Nebraska was brought against a teacher who had been caught teaching German reading skills to a 10-year-old child in a parochial school in Nebraska. This was back when German was still commonly spoken in the Midwest by recent immigrants. The relevant statute read in part as follows:

    Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language than the English language.

    Section 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade …

    [The statute discusses penalties.]

    Section 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.

    Prior to the U.S. Supreme Court taking up the case, the Nebraska Supreme Court affirmed the validity of the statute. They wrote:

    The Legislature had seen the baneful effects of permitting foreigners … to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. …

    It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. …

    The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state.

    The U.S. Supreme Court reversed the decision of the Nebraska Supreme Court, holding that the statute infringed on the rights guaranteed by Section 1 of the Fourteenth Amendment (“… [n]o state shall deprive any person of life, liberty or property without due process of law…”). Specifically, the Court held that the statute unfairly infringed on the teacher’s right to teach, as part of his occupation, as well as the right of parents to engage that teacher in instructing their children.

    Moreover, they noted that the sole purpose of the statute was to inhibit the teaching of modern languages alone, even though, they note, “Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Later, they write that foreign language learning is “not injurious to the health, morals or understanding of the ordinary child.”

    But, lest you think the Supreme Court was being too progressive, they still warn:

    The desire of the Legislature to foster a homogeneous people … is easy to appreciate. Unfortunate experiences during the late war [World War I] and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration.

    Still, the means used were too intrusive, they concluded.

    I’m in Tucson, Arizona, right now, working on a handful of legal projects with U.S.-Mexico border human rights organizations. The small-town reasoning evident in the Nebraska Supreme Court’s decision — foreign languages are bad, and they are dangerous for our youth and for American ideals — are alive and well today, not least in Tucson, where many people regard the exercise of Mexican-American pride as an assault on the US itself.

    The Tucson Unified School District board recently decided to remove its Mexican-American studies courses in response to a finding by the Arizona Schools Chief that the program promoted racial disharmony. Regulating identity in our schools and fostering homogeneity with dire warnings of a multicultural dystopia don’t seem to have gone out of vogue yet, 89 years after Meyer‘s implicit remonstrances.

    But, as Lane Greene writes, there’s nothing to fear from the teaching of heritage languages — because they’ll probably be lost within two generations, anyway, through the inexorable march of the American monoglot machine. As an Indian-American, I can offer anecdotal support — for better or worse, few among my cohort speak our heritage languages fluently, and those who do still speak English fluently. Of course, anecdotes aren’t data, so here are hard numbers: Hispanics in America today are learning English more rapidly than German Americans at the turn of the century — 95% of surveyed second-generation Hispanic children located in the heavily Hispanic areas of San Diego and South Florida spoke English fluently, and 40% spoke no Spanish. Hardly the bilingual disharmony English-only activists warn of.

    Greene writes:

    It is, to put it simply, nearly impossible to raise a child in the United States without the child learning English; it would require isolation from the outside world bordering on child abuse. Children born in America, and even those arriving at a young age, inevitably pick up English.

    This fact, of course, does little to quiet the English-only activists.

     
  • The Diacritics

    The Diacritics 10:01 pm on October 12, 2011 Permalink | Reply
    Tags: , debate, election, john, , necessary and proper, supreme court   

    Necessary and Proper: the Supreme Court aren’t linguists 

    (Posted by John)

    As I watch the beginnings of the Republican presidential primary season unfold, there’s one mantra I’ve heard espoused time and again: our government is too big. With debates about spending and entitlements (not to mention the health care law) as fierce as they’ve been in my lifetime, the question of the appropriate role of government appears to be coming to a head in a serious way.

    One clause of the Constitution, in particular, has had massive influence on this debate. That clause is the Necessary and Proper Clause. The Necessary and Proper clause says that Congress has the authority “to make all laws which shall be necessary and proper for carrying into execution [its enumerated powers].” This is basically a mandate for Congress to do the things that it needs to do in order to carry out its explicitly stated powers (e.g. levying taxes). The real debate, though, is how wide a mandate this clause actually grants. And as it turns out, answering that question depends greatly on…you guessed it, linguistics!

    What’s the right interpretation?
    So what does necessary and proper actually mean? For most people, and particularly those keen on limiting the scope of government, it means that any act Congress wishes to justify under the Necessary and Proper clause must be both necessary and proper. The “and” requires that both conditions be satisfied in order for an act to be authorized.

    This makes some sense. If I say “John and Sandeep have written posts for The Diacritics blog,” I mean that both John and Sandeep write posts, not just one or the other of them. This interpretation puts severe limits on what the government can do, too: anything that is not necessary to the execution of some explicitly stated Constitutional power is prohibited. Lots of people believe this to be the correct interpretation. And for those who do, the federal government has a long history of greatly overstepping its legitimate authority.

    But lets look a little closer at what this interpretation of the Necessary and Proper clause entails. What, for example, happens when there is more than one possible method by which Congress could undertake to levy taxes? If there are multiple options, any of which would suffice, precisely none of them is necessary. Thus, on the “strict and” interpretation of the Necessary and Proper clause, whenever there are multiple courses of action, Congress may not choose any of them. In my opinion, this is not a desirable outcome. It’s not that Congress is never allowed to pass a law to carry out an explicitly stated power. It’s that Congress may only do so when there is one option and one option alone. If this reading is to be a tenable one, some kind of work still needs to be done.

    There’s another legitimate, but lesser-known, interpretation of “[the authority to make] all laws necessary and proper” that doesn’t suffer from the “strict and” defect. To get at it, consider the following: God loves all creatures great and small. Obviously this does not mean “God loves all creatures that are both great and small.” This is a nonsense sentence. It is actually parsed something like: “God loves all creatures great and [all creatures] small,” or “God loves all great creatures and all small creatures.”

    Why, then, is it not legitimate to read “all powers necessary and proper” to mean “all powers necessary and all powers proper”? This reading is at least plausible, and it doesn’t suffer from the “strict and” problem of limiting action whenever there’s a choice. This is also the reading that proponents of larger government (perhaps only implicitly) might adopt.

    What the Court has said
    The Supreme Court has, over the course of our nation’s history, ranged across the spectrum in its reading of the clause. Unfortunately, they generally aren’t the greatest of linguists, despite the fact that John Marshall’s famous McCulloch v. Maryland opinion does recognize the “strict and” problem. His solution to it is, essentially, reading the word “necessary” out of the Necessary and Proper clause. He adopts a purposive understanding: for Marshall, if the underlying goal of the act was to carry out some explicitly stated power, you were probably good to go. This meant that Congress couldn’t enact laws under the pretext of, say, regulating interstate commerce, but with the actual purpose of, say, prohibiting intrastate child labor. While this is not a linguistically plausible reading, it is perhaps a decent one from a policy standpoint: it avoids the “strict and” limitation on government but does try to set out some limit on federal power.

    The Court has treated this reading variously since then. Up until the New Deal Era, the Court was serious about keeping the federal government out of purely intrastate commerce, for example. But as we know, for most of the 20th Century, the Necessary and Proper clause was read as an essentially unlimited federal mandate. The Court ruled that the underlying purpose of a statute no longer mattered, and that any action that, considered in the aggregate, had an affect on interstate commerce was within the scope. Whether you use a Kleenex when you sneeze, taken across the entirety of the population, without doubt affects interstate commerce, and thus could have been regulated.

    Only recently has the Court begun to walk this unlimited mandate back. We’ll see how their reading evolves over the course of the next decade, as the debate about government’s size rages on.

    In the end, whichever reading you choose is fine by me. But it will be interesting to see what those in Washington, presidential candidates and Supreme Court alike, have to say on the topic.

     
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