Is running the US government based too much on ‘norms’ –  and not enough on rule of law?

Vox article heading

I read the Vox article Are We In a Constitutional Crisis Yet? with a mix of interest, curiosity and concern. While all of the 13 law professionals interviewed agree that we’re in a difficult situation in regards to how the United States government is being run today, some say we’re not in a Constitutional crisis until the president refuses to obey a court order – an order which could be issued if Congress’ demands for information relating to its task of rounding up materials needed to impeach government officials are ignored.

The article’s easy to read format helped me understand the subject of impeachment much better, and appreciate the difficulties inherent in handling proceedings against a sitting president who has little apparent respect for the laws and procedures which form the norms by which America lives and works. Note: Impeachment is a process known by the term ‘indictment’ when charges are made in a court setting, rather than a government one.

The legal opinion voiced in the article that best captured my attention, points out that a central problem which has repeatedly arisen in regards to Donald Trump’s flouting of the rules governing the behaviour of top US government officials, may stem from the fact that many of the rules are more guidance and suggestion – what NYU law professor Melissa Murray calls ‘norms’ – than they are codified legal requirements.

Prof Murray writes:

It seems like we’ve been careening from constitutional crisis to constitutional crisis as this administration has repeatedly refused Congress’ oversight requests. The fact that this involves an impeachment inquiry — Congress’ ultimate check on the Executive — amplifies the sense that this is different from what preceded it. “THE LETTER FROM THE WHITE HOUSE IS A POLITICAL STUNT THAT MISINTERPRETS THE CONSTITUTION, IGNORES RELEVANT PRECEDENTS, AND DEFIES COMMON SENSE”

So does this leave us in a constitutional crisis? Maybe. But to my mind, the thing that is most concerning about all of the administration’s frequent clashes with Congress is that they make clear how much we rely on norms, rather than rules (whether constitutional or not), for the government to operate effectively and efficiently. 

In the past, when the administration and Congress disagreed over oversight requests, they negotiated a mutually agreeable outcome, and failing that, resorted to the courts to resolve the dispute. The norm of interbranch negotiation and resolution has fallen by the wayside with this administration. It’s unclear whether it can be resurrected going forward. The abrogation of the norms on which the exercise of constitutional powers depend might be the real constitutional crisis here.

Congress clearly does not require the president’s permission or agreement to impeach him. Georgia U law professor Diane Marie Amann points out, “…the White House cannot just refuse across the board to cooperate with subpoenas. Persistence may result in a finding of contempt of Congress, a federal crime punishable by up to a year in prison.” But it is also not clear at all whether there exists an individual in any branch of the US government or judiciary who would feel him/herself empowered to arrest and jail the POTUS.

Our deepest problem may be more the enforcement of law, when it comes to high-profile government official, than it is a matter of identifying either legal violations – or their remedies.

Obamacare is fair – and now constitutional!

Today, the Supreme Court justices announced through the SCOTUS blog that Obama’s Affordable Care Act (ACA) is constitutional and will be upheld as US law. The court’s decision hinged on the question of whether Congress has the power to force people to buy anything and was upheld on the basis that the government has the free right to impose taxes, and Obamacare (as the act is popularly known), does just that. The victory provides another shining example of how brilliant the president’s team is. Despite aggressive push-back from conservatives opposing the law, the legislation drafted by the White House team does what most of the people of the United States want it to do: it uses the constitution to protect and help its citizens. This is a true victory for America and a great day in Kimilandia.

Excellent, balanced coverage of reactions to the ruling was provided by The Nation. At 12:15pm, President Obama listed the benefits of ACA in his speech to the nation. If you would like to know exactly what Obamacare is and what it does for the American people, watch this clip.

My social media posts on Facebook and Twitter tell the rest of the story:

Kimi Wei Individual mandate has survived as a tax! 30 million people without health insurance now will get it.

Kimi Wei Chief Justice Roberts of SCOTUS joined the left for Affordable Health Care provision vote http://www.scotusblog.com/

Kimi Wei Young people often don’t get health insurance thru jobs, so parents pay their healthcare bills. It helps that Obamacare lets parents to keep them on their own insurance policy to age 26. http://www.democracynow.org/

Kimi Wei Law regulates insurance industry and requires those WHO CAN AFFORD to do so, to buy health insurance.

Kimi Wei Basis of SCOTUS’ decision to uphold Affordable Health Care bcs it taxes (not fines) people for no insurance http://www.scotusblog.com/cover-it-live/ #p2

Kimi Wei Remarkable: Kennedy sided with Right and Roberts broke from conservatives and voted in favor.

KimiWei “Can’t let perfect be the enemy of the good”. It’s not perfect, but that wasn’t the question SCOTUS decided.

KimiWei Democracy in the US was upheld. What a great way to start my day.

Some background

The Christian Science Monitor points out that people are already being forced to buy healthcare

Conservatives like to argue that health care is not a right. But, in fact, it is. For years, federal law has required most hospitals to accept patients into their emergency rooms whether or not the sick and injured have the means to pay. If you run your car off the road and break your leg, the EMTs don’t demand to see your insurance card or ask, “credit or debit?” They trundle you off to the nearest hospital–which must fix you up…

This care is, of course, not free. Those of us who are insured pay for it. Indeed, the medical business survives on the black art of cost-shifting—that is to say, spreading the costs of those who can’t (or won’t) pay to those who can.I can’t help but wonder if states barring the mandate could find themselves with no insurance coverage at all. Here’s why: Insurers would still be required to sell to all comers and still could not underwrite for health status (another key provision of the new health law). If they must sell to all, but only the sick buy, the insurance market will fall into what is happily called the death spiral. Premiums will keep rising as only those most in need of insurance buy, until coverage becomes unaffordable for nearly everyone and insurers finally abandon the market. Remember, in the health debate it was the insurance industry, not those wacky Democrats, that demanded tough penalties for non-buyers.

An article in The Nation reviewing this issue concluded: Obama’s healthcare is constitutional.

Although the challengers focus their attack on the individual mandate, that provision cannot be separated from the act’s prohibiting insurance companies from denying coverage or charging higher rates based on “pre-existing” medical conditions. No one contests Congress’s constitutional authority to enact that overwhelmingly popular protection from dubious insurance practices. But without the individual mandate, the nondiscrimination protection would be unworkable. People would have a powerful incentive to wait until they get sick before they buy insurance, because they could not be penalized for doing so. Such “free-riding” would defeat insurance’s purpose of spreading risk. As one expert told Congress, health insurance cannot work if people can delay buying it until they are on the way to the hospital. Several states have tried to prohibit discrimination against those with pre-existing conditions, but the reforms have failed everywhere they have been enacted without an individual mandate. (Only in Massachusetts, where the protection is coupled with a mandate, has the reform been sustainable.)