Let By-Gones Be By-Gones and the Court Be Congress?

                I am returning to the Affordable Care Act (ACA) with this post. Particularly I wish to expand on my opinion about the Act’s severability (If you want some background on the particulars of severability you can go back a few posts and read my post Severability and Possible Judicial Power Grab? Or you could go to any news site and find at least something on it.) I digress; there are a number of brain-twisting qualifications to consider when asking if, hypothetically, the individual mandate is declared unconstitutional, is the rest of the bill able to (or should it) stand on its own?

                The other two main entities of the ACA besides the individual mandate are “guaranteed-issue” and “community-rating.” These two entities are extremely popular with the majority of Americans; simply because these provisions give more people access to health care and particularly to “fair” health care, or so it is said. I won’t bother trying to decide if that is a true assertion, but I can say that there are more than a few Americans that believe it is. The provisions’ popularity was not over-looked by the government either; the government actually argued during oral arguments before the Supreme Court that the bill was NOT severable if the individual mandate was declared unconstitutional. (One has to wonder if this argument wasn't made in part as an effort to use public pressure to nudge the court to accept the individual mandate.)
                Which leads me to my next point: If I were a Supreme Court Justice (Lord help me), the first thing I would have to consider is the protection of the Court. What I mean by that is that the Court is an independent entity, and if they are swayed to either uphold the individual mandate or declare the rest of the Act (particularly the guaranteed-issue and community-rating) severable from it because they were bowing to public opinion, the Court would be entirely worthless. Worthless because it is charged with being objective and unbiased in applying the Constitution, (granted, not something easy to do). Yet if the Court allows the will of the masses move it, how can it protect the rights of the minority, protect the rights of the government, the rights of businesses, the rights of you and I, or the Court itself; how can it be considered anything other than a tool? Thus as a Supreme Court Justice I would probably have to exercise judicial restraint and say, “Since there is no severability language present in the bill, the entire Act must fall because a severability clause allows for provisions in the Act to survive without the ‘heart’ of the bill present and without one it cannot be assumed that those provisions can stand on their own. You can’t have it both ways.” Besides it would make sense that if the other provisions in the bill are so incredibly popular, they could surely be put in a new bill rather easily, right?  After all, the Court's opinion could specifically delineate the provisions that are unconstitutional and clarify that the remainder of the bill falls due to the lack of a severability clause.
                In conclusion, while I do think that the “guaranteed-issue, community-rating,” along with the majority of the rest of the Act (excluding the individual mandate) are certainly not unconstitutional and even positively progressive, the statute as a whole must fall. Judicial activism is not necessarily a bad thing mind you, but severability clauses exist for the purpose of laying out Congressional intent. The Court is separate and independent of Congress; the Constitution gave the power to make laws to Congress and the power to review those laws to the Court. They were not made to mix those together with one or the other. Checks and Balances. Declaring that part(s) of the bill can stand without clear legislative intent written in via a severability clause is, in essence, “writing” the law, which is entirely different from “reviewing” the law.

The 'Obstacle' for "Crisis of Education"

My colleague’s March 26^th post “Crisis of Education in America” calls for increased funding for K-12 education to address the nation’s dropout and literacy problems and also to better prepare students for college-level work.  While I think that more funding for K-12 education can certainly be put to good use, I want to point out that K-12 education is primarily governed and financed at the state and local level.  On a nationwide basis, only 9.5% of total K-12 revenue is from federal sources.

Clearly the federal government has an established presence in education; however, I think that my colleague’s plea for additional dollars, presumably federal dollars, needs to be put in perspective of the current federal role in education, both in terms of policy/regulation and financial commitment.  If Congress were to provide significantly more federal funding for K-12 education, those dollars would likely be accompanied by a significantly expanded federal policy-setting and regulatory role.  States, particularly Texas, would probably take a dim view of additional federal education mandates.  For example, when part of the federal economic recovery funding was set aside for competitive grants, known as Race to the Top, Texas was one of five states that refused to apply for funding because of the perception of federal invasion of the state’s role in education.  In that case, preferential scoring was given to the applications of states that agreed to adopt federal curriculum standards for reading and math, remove caps on the number of charter schools, and so forth.  Likewise the federal government has been steadily backing away from the politically unpopular accountability requirements under No Child Left Behind by offering waivers of the requirements, for which more than half of states applied.  So, even at the current level of federal funding for K-12 education, there is overwhelming resistance toward federal policy-setting and regulatory roles.

And then we come to the level of financial commitment.  Let’s assume that a level of funding at least equal to state and local government funding for K-12 education would guarantee something like an equal federal say in education policy-setting and regulation.  Based on a report by the Census Bureau, in 2009, states contributed $276 billion to K-12 education, local governments $259 billion, and the federal government $56 billion.  So, it would take at least an additional $204 billion annually for the federal government to get in the range of an equal financial commitment.  Naturally there would also need to be consensus on just how to distribute so much additional funding and requirements for the state and local governments to maintain their current levels of funding.  Given Congress’ recent track record on passing a budget, there would seem to be nearly insurmountable odds against a coalescence of the political will necessary to pass an increase in excess of 350% of current federal K-12 education spending.

To be succinct, an increase in “spending” on K-12 education means the federal government has to pump money into it via its only revenue source:, what Justice Stephen Beyer called “the life blood of the government:” taxes. And, as I mentioned above, an incredible amount of taxes would have to be generated. (ask yourselves; who are, or will be soon, taxpayers, would you be willing to increase your taxes to meet this extraordinary sum?)

 Let me reiterate that I, too, find the statistics presented by my colleague troubling.  However, given both the historically limited role of the federal government and the current resistance both to any expansion of the federal education-related footprint and to a lack of consensus on spending in general, I think that citizens would be better advised to be active in pursuing accountability for results and enhanced levels of funding at the state and local level.