Why Biden and Congress can mandate masks if governors refuse to act

 This column originally appeared in The Hill.

With a rising number of infections from the Delta variant across the country, in states such as Florida and Texas where governors have refused to act to protect their populations, can President Biden and the federal government mandate masks or take other actions? The traditional answer from constitutional lawyers is no, and the Supreme Court under Chief Justice John Roberts has made federal action more difficult. But there is one legal option: declare the coronavirus an interference with interstate commerce, allowing the federal government to act.

 

The United States is a country of divided authority between states and the national government.  In many areas, states have far more power than the federal government. “Police power” is the authority to act to protect the health, safety, welfare and morals of the people, the basis of state power to pass criminal laws, housing codes, environmental laws, and even public health measures. Over time, the Supreme Court has upheld broad, inherent authority of states to promote public health, including recent mandatory quarantines and vaccination laws.

 

The United States government lacks police power. Its powers are limited to the text of the Constitution or what is necessary and proper to execute its explicit powers. Without police power, the national government has significantly less authority over many aspects of our lives.  However, Congress has used Article I, Section 8, Clause 3 of the Constitution — the Commerce Clause — to regulate measures that affect interstate commerce. It also has used Article I, Section 8, Clause 1 — the authority to tax and spend for the general welfare — as a tool to induce parties to act under threat of a financial penalty.

 

There is a long Supreme Court history surrounding Congress’s use of the Commerce and Tax clauses as tools of regulation. Yet the simple answer is that, together, they have allowed the national government to prescribe criminal and environmental laws, as well as workplace conditions, and to regulate the sale and distribution of drugs and food products. In upholding the constitutionality of the 1964 Civil Rights Act, for example, the court ruled that decisions by businesses to refuse to serve people of color interfered with interstate commerce. Together, these two clauses have given the national government broad power to act.

 

Yet, these clauses have limits. The Supreme Court has said that, generally, the national government cannot order or, in its words, “commandeer” states to act because of Tenth Amendment or federalism concerns. It cannot tell states directly to lower highway speed limits, for example, or to raise age limits for the consumption of alcohol, or lower blood-alcohol levels for determining when someone is driving while intoxicated. It can, however, offer financial inducements to encourage states to do all this — if the incentives are not coercive.

 

What all this means is that the president and federal government historically have lacked broad public health authority to act and to tell states they must do the same. The Supreme Court compounded this problem in 2012 when it ruled in National Federation of Independent Business v. Sebelius on the constitutionality of the Affordable Care Act. The court decided that Congress lacked authority under the Commerce Clause to mandate individuals to carry health insurance, because not being insured did not interfere with interstate commerce. 

 

The court did uphold the individual insurance mandate under the Tax Clause by arguing that individuals were free to not get insurance, but they then would have to face a tax. The court struck down the part of ObamaCare encouraging states to expand Medicaid eligibility, ruling that the combination of incentives and threats were coercive and violated the Tenth Amendment.

 

Americans should rue this decision. It hampered the expansion of health care coverage and now crimps the ability of the national government to respond to the coronavirus pandemic. Roberts Court conservatives have clipped the wings of governors in California and New York to restrict gatherings at religious institutions, arguing it violates the Free Exercise of Religion. This is a court simply out of touch with realities associated with the coronavirus and the need for strict public health measures. The court’s decisions enable irresponsible behavior by governors who refuse to act during a public health crisis.

 

However, it is indisputable that the pandemic has wrought significant impact on the U.S. economy. We have nearly 18 months of proof that the pandemic impacts interstate commerce. Decisions to not wear masks or get vaccinated can impact interstate commerce, just as much as the decision of a business not to serve people of color was the basis for upholding civil rights laws because those decisions impacted interstate commerce.

 

Not wearing a mask or getting a vaccine arguably affects others more than not getting insurance, and therefore it affects interstate commerce. Given the reality of how COVID-19 is impacting interstate commerce, President Biden and Congress have a good-faith argument that they have the authority to step in and act if governors choose not to.  

Governing by Executive Order: As Obama goes, so goes Trump

This was the week of  the Trump executive order presidency.  Frustrated with his own inability to

govern and work with his Republican Congress, Trump used executive orders to dismantle the Affordable Care Act (Obamacare) regarding contraception, minimum coverage for health plans, and subsidies for the poor.  If the Obama presidency is precedent, it is not clear that Trump has the authority to do all this.  Instead, one legacy of Obama may be passing on to Trump a weaker presidency when it comes to the use of executive orders.

As candidate, Donald Trump criticized Barack Obama for governing by executive order, bypassing Congress and instead leading by fiat. Now that Trump is president executive orders look good to him. Democrats lauded Obama’s efforts to do an end run around Congress, which Republicans condemned. Now the reverse is the case.

Consider first who has used more executive orders.  According to CNN, by October 11, into his first year in office, Obama signed 26 executive orders–the fewest of any president going back to Eisenhower.  Trump has already signed 49–the most since Lyndon Johnson and on pace to be more than any president since Franklin Roosevelt.  Trump has become the executive order president.  For his supporters this is no doubt good–it is a sign of taking charge and being a leader.  But the criticisms that applied to Obama apply to Trump–it is side stepping the Constitution or at the least,  it is illegal or demonstrates contempt for the concepts of checks and balances and separation of powers.

At least this is what many Republican attorney generals thought when Obama was president.  Presidents have no inherent powers.  Their authority derives from either Article II or the Constitution or what Congress has delegated to them via the Administrative Procedures Act and other laws.  Executive orders in many cases carry the force of law and once issued, especially if they go through  a rule making process,  cannot easily be repealed without going though a series of procedures.  When Obama issued executive orders regarding immigration and rules for power plants, Republicans successfully challenged them in court with decisions that limited presidents going forward.  Among the principles these lawsuits established  is that presidents may not use executive orders to sidestep laws made by Congress.

This may exactly be what is happening now with Trump. Unable to get Congress to do his bidding when it comes to repealing Obamacare, he is governing by edict.  In some cases the orders seek to alter Obama executive orders, in others they go against congressionally-authorized law.  But in both cases, Trump  needs to do more than issue an order.  No president, including Trump, can say  “Make it so” like captain Picard from Star Trek, and make it happen.  Already Democratic attorney generals are using the same tactics against Trump their Republican counterparts used against Obama.  Time will tell if the legal results will be the same.

The Lessons of the Health Care Repeal Failure: It Sucks being an Adult

Scores of lessons are to be had from the failure of Trump and the Republicans to repeal the
Affordable Care Act (ACA or Obamacare).  One of the most important is that governance is hard, or that it really does suck when you are in charge and have to be an adult.  This is the alternative reality that both Trump and the Republicans live in, and it is not clear they have learned anything from their mistakes...and it is also not clear that the Democrats have either.
Obamacare is flawed and it needs to be fixed.  It failed to do much when it came to the overall cost curve facing health care in the US (as a percentage of the GDP) and it created premium problems for those who made too much to qualify for subsidies but who were not employed or rich enough to afford to buy their own insurance.  Many of these individuals were Trump supporters–the individuals left behind by the changes in the American economy over the last generation and which neither political party helped.
However, the Republican goal in repealing Obamacare was never about fixing it.  The same was truth with Trump.  If there was one defining or uniting goal of the Republicans in the 50+ times they voted to repeal the ACA when they knew Obama would veto it, it was that they wanted to obliterate the president’s signature accomplishment simply to deny him a political success.  The same is true for Trump.  It was never about the flaws in the ACA, having a better plan, or even something as noble or principled as ideological belief in free markets and less government, it was simply to play politics, mobilize a hostile Republican base, and simply negate Obama’s legacy.  In Trump’s first six months as president, the few accomplishments he has had have all been aimed at erasing the Obama legacy.  Cancelling the Trans Pacific Partnership, railing against the Iran Nuclear Deal, banning transgender from the military, and arguing that the 1964 Civil Rights Act does not extend to sexual orientation, all had that singular focus.  There was no alternative theory, policy agenda, or grand plan regarding what to do.  The narrative was entirely negative.  All this works, perhaps, when in opposition, but not as a prescription for governance.
Many will point to the divisions between moderate and conservatives within the Republican Party as the reason why the ACA repeal failed.  There is some truth to that.  But in general, the GOP and Trump lack a governing agenda and vision for what they wish to accomplish.  In addition, there is a lack of leadership from Trump down to McConnell and Ryan.   Real leadership, as presidential  historian James MacGregor Burns defines it, is authority guided by principle.  Neither Trump nor  GOP leadership  displays that.  This leadership is about respecting the Constitution, its procedures and rules, it is about understanding checks and balances and separation of powers.  None of this is understood, especially by Trump.  He still thinks he is a CEO and not the president.  His first six months in office  demonstrate a startling ignorance of what it means to govern and there is no indication that he has learned any lessons from his failures.  He thinks, as in the case of a tweet saying transgender are barred from the military–that such pronouncements are governance and binding as law or policy.
The failure to repeal the ACA is a crisis of leadership in many ways.  It was Trump who never had a vision for what he wanted thinking that the art of the deal was s imply threatening and blustering others around.   He never understood how to negotiate.  Moreover, when push came to shove, his misogynist statements about women and saying prisoners of war were not real heroes perhaps came back to hurt him when Susan Collins, Lisa Murkowski, and John McCain voted no.  They had good reasons to oppose the ACA repeal bills, but how much was payback we shall never know.  But for the other Republicans who voted against the repeal, they were among the few adults in the Party who saw the consequences of what the bill would do.  However, for the 49 Senate Republicans who voted for repeal, they still failed to appreciate or care about how what they did would hurt not just Americans in general, but their own constituents.
The infighting in the Trump presidency is further proof of a lack of leadership.  Lacking leadership, everyone is going in their own direction and for their own interests.  No one seems to have loyalty to anyone, and that includes Trump.  The lesson if at all Trump learns from his failures is that others are to blame and that the Apprentice solution–“You’re fired”–is the solution.  Alea  iacta est–the die is cast on this administration and there is no sense that things will get any better.  No one seems to be growing up, taking responsibility, acting like an adult because, frankly, that sucks for this administration.
But the Democrats should not be so gleeful.  They seem in the Trump and GOP failures a 2018 success, but that approach of thinking Republican ineptness as the road to power is what cost them their leadership.  Faintly the Democrats realize that, trotting out a meaningless promise of a “Better Deal,” a narrative devoid of real substance and policy.  Democrats yet again seem to think that being “Republican Lite” is their salvation, instead of their problem.
The lessons of the ACA repeal failure demonstrate that it is hard being in charge.  Governance and leadership ask people to be adults who care about others, who care about the country, and who are capable of looking beyond simple personal self-interest and partisan advantage.  Right now, it is not clear that there are many elected officials in Washington who gets that.

Abandon Trump? The Republican Party Dilemma

No question more perplexes political pundits, the news media, and Democrats than “When will
Republicans abandon Trump?  The simple answer is that the odds of Republicans–both those in Congress and his base–abandoning Trump is like waiting for Godot.  In both cases, one can hope that Godot appears or the Republicans will flee from Trump and impeach him, team up with Democrats, or do something else, but the reality is that it just may not happen.
Now nearly six months into the Trump era the carnage of his presidency persists.  This week the Russian connection revelations continued to mount, depicting  patterns of illegal or unethical collusion between Trump campaign officials and family and Russian nationals if not the government.  Revelations of Trump family conflicts of interest intensify, Trump embarrasses himself and the USA across the world, his travel ban takes another court hit, and his policy agenda including efforts to repeal Obamacare look like one mistake after another.  Allegations  of obstruction of justice engulf the administration as the FBI probe continues, and to many, Trump tweets and alternative facts simply add to a narrative of a largely failed presidency unable to get anything done.  With the Republicans tasting policy victory last fall and only to see it slipping out of the fingers now and facing a potentially fatal 2018 election, why haven’t Republicans abandoned Trump?
Many look to the lessons of Watergate as hope that the GOP will reject Trump.  Back when Nixon was president his resignation was the product of not just political pressure by Democrats but also by notable Republicans in the House and Senate calling for his impeachment or resignation.  Public opinion support for Nixon also eroded, and he could not count on his base to support him in sufficient numbers to prop up his presidency.  Even his own Supreme Court abandoned him in U.S. v. Nixon and the mainstream media was nearly of one voice in going after Nixon. Surely, some assert, this should be Trump’s fate any day.  Not necessarily.
The 1970s is a different era from today.  Most significantly, the level and strength of partisanship today is far more powerful today than then.  Back in the 1970s about one-third of the members of Congress came from swing districts, those which were capable of flipping from one party to another.  The percentage of swing voters–those who split tickets voted or switched from one party to another when voting was about 15% of the electorate.  The Republican and Democratic parties were ideologically more mixed and straight party-line votes the exception and not the rule.
Today, there are fewer than 20 or so seats in the House of Representatives that are swing.  The number of seats  where Clinton won the presidency but a Republican in Congress is very small.  Party-line voting is the norm and not the exception in Congress and the Republicans and Democrats are so polarized such that the most liberal Republican in Congress still votes more conservatively than the most conservative Democrat in Congress.  The percentage of swing voters has dropped to about 5%, with swing meaning now swinging into votes or not voting, and not split ticket voting.  Partisan preferences have hardened, especially at the presidential or national level, and political scientists now note how individuals will change their policy preferences to conform with their party identification, and not vice versa.
Why is all this important?  Despite all of Trump’s problems, partisanship is more powerful than presidential performance.  Republicans have embraced Trump as their president, flaws and all.  This was no different from what the Democrats did with Clinton in 2016.  Despite all the clear warning signs that Clinton was a flawed candidate, Democrats stuck with her no matter what.  Democrats went down with Clinton as the captain of their ship, Republicans may do the same here.
Don’t count on Republicans abandoning Trump.  They still support many of his policy objectives and see a better chance of getting what they want if they are with as opposed to him. They still want to repeal Obamacare and may still succeed.  Consider some one such as Senator Susan Collins.  Depicted as a moderate, yet whenever push comes to shove, she votes the Republican line.  The same might be said of John McCain.  Right now they oppose the yet again revised version of the Senate health care bill and it looks doomed, but the same was said a few months ago about the House bill.
Moreover, don’t count on fear of what could happen in the 2018 elections as a motivating  factor for Republicans.   The latest public opinion polls (Gallup)  still show that 38% of the voters support Trump.  This percentage has not varied much in two months. His core base is still with him.   The Democrats are defending 25 Senate seats in 2018 (23 Democrats and two independents) than Republicans at eight, and there does not seem to be too many swing seats for Democrats to pick up in the House.  Trump’s core base is concentrated in enough congressional seats such that fleeing him there would invite Republican primary challenges from the right.  Finally, Democrats lack a narrative, plan, and strategy for 2018, they are still counting on Trump’s unpopularity to the springboard to victory.  This is Clinton’s 2016 mistake all over again.  Finally, the news media is not universal in  its condemnation of Trump; Fox national news provides alternative facts to the Trump base that reinforces partisan support.
It is possible that the Republicans will abandon Trump, but it is equally possible they will not.  Hoping it will happen is simply like waiting for Godot.

It Sucks Being In Charge: The Lessons of Trumpcare

It’s hard to be in charge of the government.  It comes with responsibility, much like being an adult.
 Taking care of the government comes with a fiduciary responsibility to act with care for the public good, much like being a parent comes with it responsibility to look after children.
This is just one of the many lessons that will not be learned by Trump and the Republicans as a result of their failure to repeal Obamacare.  It was so easy to vote 50+ times repeal it when it did not matter, but once the reality of owning the issue and having to be accountable for it was here, the Republicans simply failed.  They failed in part because they had become the party with a negative narrative.  By that, Trump and Republicans ran successfully in their opposition to the status quo, except they had no alternative vision of how they wanted to govern.
Part of the problem is that many of the Republicans along with Steve Bannon  have a negative theory of the state.  Their’s is not the night watchman state of minimalism, it is even more profound in terms of see the state as the enemy.  It is kind of hard to govern and be in charge when you actually do not like the machinery of power that you are holding and your aim is to dismantle it.    Another problem with the failure to repeal the Affordable Care Act with a Republican alternative is that the Affordable Care Act already was the Republican alternative.  How do you out-Republican the Republican alternative?
But the failure to repeal the ACA goes deeper than health care.  Political power and influence is not stagnant; it either increases or decreases but it never stays the same.  Richard Neustadt’s the power of the presidency is the power to persuade was on full display in the health care fiasco.  Any president, including Trump, should be at the strongest in the first 100 days.  Securing their first legislative victory is important for so many reasons, including showing the political capital one has.  Herr Trump and even Speaker Ryan expended enormous political capital and failed.  Next to immigration, repealing the ACA was the signature theme of Trump and the GOP.  If there was anything they should have been able to do it should have been this.  Yet the failure here was multifold.
For all who elected Trump because he was a total outsider to Washington, guest what?  It takes insiders to govern and to know how to move legislation.  Trump had none of the requisite skills to move legislation.  He also showed the limits of his ability to negotiate when in fact, he did not negotiate. He threatened Republicans legislators and failed.  He is weaker because of that because they are no longer afraid of him.  Presidents, as I have argued, cannot simply order people around and think they will obey.  This is especially true of Congress.  Moreover, as any good negotiator will tell you, real bargaining is a non-zero sum game, it is not about bullying people around.  Trump had nothing to offer anyone to vote for the bill except his wrath and that was not enough.  The art of a deal requires dealing and Trump did not do that.
Trump and the Republicans also seemed to think that a bill that originally took over one year to pass and which had six years of implementation history could easily be replaced in two weeks. This brief time frame was not enough to vet the bill, to build coalitions, to flesh out the unanticipated consequences.  In so many ways it failed to learn the lessons of why health care reform failed under Clinton and succeeded under Obama.
Moving forward Trump seems already bored with health care reform and plans to move on.  He has said the Obamacare will die of its own accord and will do nothing to fix it.  Guess who is most hurt but Obamacare’s failures?  The rural and working class who voted for Trump and the Republicans.  Doing nothing hurts his supporters the most, but had his reforms passed they too would have hurt his supporters the most.
It seems unlikely that Trump has learned anything from his failures here.  Back in 2016 when asked what would happen if Trump or Clinton were elected, I said no matter who would be elected it would produce gridlock and produce no major change from what was happening between Democrat Obama and the Republican Congress..  Here the gridlock is intra-party, because the Republicans really are not a party united by a common vision for government and society.  Instead, they are profoundly divided by their hatred of the status quo and lack a realistic vision of what it means to be in charge and responsible.  It really sucks being an adult.

Politics, Lies, and Videotape: Rumor and Journalism in Era of the Social Media

“Let me tell you one truth–I always lie.”

Truth seems to be one of the main casualties of the social media.  There appear to be Facebook facts and real facts.  Facebook facts are those circulating across the social media.  They are stories which are not true, partially true, or simply the spinning of some pseudo-facts taken out of time and context. Often this manufacturing of facts is innocuous.  But increasingly as politics and partisans have discovered the social media as a tool for campaigning, it has become  a major source of political rumor and propaganda.  One would hope that the mainstream media, especially as it covers the social media, would correct these distortions, but that no longer appears to be the case.
There are two interesting political  stories driving Facebook and the media this Christmas weekend.  The first are stories that the Clinton camp is worried that it could lose Iowa and New Hampshire in the next couple of months.  The second story is that NBC’s Chuck Todd claiming it is not the media’s job to correct GOP lies about Obamacare.

Clinton Losing Iowa and New Hampshire?
Consider the Clinton story first.  I first saw a Facebook post on December 26, 2015 describing how Clinton was worried about losing the first two states in the Democratic Party presidential contest.  Clicking on the link it was to an article in Politico form September when the polls were much closer and in fact in looked as if Sanders was closing in on Clinton.  Several other  other Facebook posts had similar links to similar older articles or polls showing close races.  That was then, now is now.   Stories from four months ago do not reflect the present which show Clinton still leading Iowa and a closer race in New Hampshire.  Granted there is some evidence of a new Sanders’ effort to close the gap, and granted that Sanders may prove to be better at the GOTV than Clinton (a real possibility), but recirculating old articles from four months ago and passing them off as reflecting current reality is simply a lie.
A second basis for this Facebook fact is an apparent Clinton e-mail to supporters right before  Christmas saying she could lose Iowa or New Hampshire.  Clinton could be prescient but keep in  mind the context of the letter.  It is a fundraising letter begging for money and encouraging her supporters to turnout.  Her letter is no different than any other fundraising letter from a non-profit claiming that the sky is falling.  Candidates all the time seek to get money out of people by claiming that it is an emergency, they are about to lose, or that time is running out.  They do this–as do many organizations–that if they are in the lead there is a sense of complacency that led to people not giving or showing up to vote.  Crying wolf is a great motivation tool.  One should read her letter as simply that–it is an effort to make sure her supporters continue to give and show up to vote.

Chuck Todd, Corporate Journalism, and Obamacare
A second story making the rounds is an interview by NBC’s Chuck Todd saying it is not the job of the media to correct the Republican lies about Obamacare.  Did Todd actually say that?  Here is what he said in an interview.

Ed Rendell: Chuck. I think you are dead right. I think the biggest problem with Obamacare. It’s not a perfect bill by any means was the messaging. If you took ten people from different parts of the country who say they’re against a bill and sat them down. I’d love to have ten minutes with them and say, tell me why you are against the bill. If they told you anything, it would be stuff that’s incorrect.
Chuck Todd: That’s right.
Rendell: Incorrect.
Todd: But more importantly, it would be stuff that Republicans have successfully messaged.
Rendell: Absolutely.
Todd: Against it. And they won’t have even heard. they don’t repeat the other stuff. because they haven’t heard the Democratic message. What I always love, people say it’s your folks’ fault in the media. it’s the President of the United States fault for not selling it.

First, it is not so clear that Todd said it is not the job of the media to correct GOP lies.  In the context here Todd acknowledged Republican lies but also said the Democrats have done a bad job messaging and selling the Affordable Care Act.  This is one plausible reading of what Todd said.  Second, this interview took place back on September 18, 2013–more than two years ago.  Why is the story rerunning today?
Second, assuming Todd did say what some claim then of course he is wrong.  The very job of traditional journalism is to seek and publish the truth.  The entire enterprise of democracy depends on a robust and active press publishing the truth.  They are to be the watchdogs for the people, publishing the truth, exposing corruption, reporting to hold the government accountable.  That is the purpose of the First Amendment.  The Jeffersonian ideal of the people ruling requires an educated public and that is where the press comes in–publish the truth.
Truth is not reporting what both or several sides say–being fair and balanced.  Truth may be something entirely different than what any partisan says.  This used to be the rule of what one learned in journalism schools, but it no longer seems to be the practice of real journalism which does simply report what everyone says and then leaves it up to the public to decide.  This is not journalism–this is simply operating as a communications organ for different sides (and not all the sides as is evidenced by how much Sanders is ignored).  Journalism is not public relations or corporation communications but that point seems to be lost in the era of for-profit journalism.
And now what makes all this worse is how journalism seems increasingly  to be echoing or amplifying the distortions found on the social media.  If anything, the ethics of real journalism should rise above the lack thereof of the social media.   Perhaps if real journalists stopped trying to imitate and repeat the social media facts and corrected them, confidence in them would be better than it is now, and the public would be better informed than it is now.

The Death of Political Reform and Innovation in Minnesota Politics

Whatever happened to the spirit of reform and innovation in Minnesota government and politics?

            At one time this state was a leader in reform of all types.  We were once at the forefront  of government ethics and campaign reform, a leader in education innovation, and an agent of change when it came to health care policy among other areas.  But for a generation or more the state seams stalled, devoid of serous reform and instead caught in the grips of either incremental, none, or a reversal of course.  Why and how it did happen?

            First, think of the innovation and progress that marked the state from the 1970s on.  The state was at the center of creative ideas for education reform.  Open enrollment, charter schools, and magnets, many of these ideas originated in Minnesota.  While yes, some of these reforms have turned  out to  be less successful than hoped, but they did represent bold experiments with education.  Similarly, Minnesota was at the center with the creation of managed health care and HMOs as ways to increase access and decrease health care costs.  The state was once also a leader with programs to extend health care to children and the poor.

            Another area where the state was a leader was in addressing fiscal imbalances across a rapidly growing metropolitan area.  We know that nationally and in Minnesota there are huge fiscal disparities across the cities and suburbs when it comes to funding many services, especially education, and there are also many problems regarding unplanned growth and the siting and placement of low income housing and the residential discrimination that comes with that.  Measures such as the Fiscal Disparities Act and the creation of the Met Council were supposed  to address these problems.

            And then there is the basic area of campaign finance, ethics, and political reform.  Yes recently the state did pass legislation expanding early voting, but with this notable exception, serious reform  ended a generation ago.

             The high point was 1994 when the Senator John Marty pushed through a package of reforms that placed Minnesota at the political forefront.  Minnesota had a first-in-the-nation ban on lobbyist gifts to legislators, limits on contributions from PACs, lobbyists, and big donors, spending caps tied to participation in public financing, a political contribution rebate system, and among the best disclosure laws in the country for political spending, lobbyist, and legislator conflict of interest.  The state attracted interest from across the country as a model for how to run clean government.  But then something funny happened–reform ended.

            Legislators, lobbyists, and special interests hated the Marty reforms.  They missed the lobbyist paid-for-parties and junkets, contributors did not like the disclosure of their activities, and legislators hated having to disclose all of their personal financial dealings and not being able to accept gifts in return for doing people favors.  It seemed all the politcos just did not like the idea of  a democracy where the voice of the people ruled and where public officials were accountable to voters.  So the legislature and the governors since then have simply ignored reform.

            It first started in the late 1990s when Democrats in the Senate fought hard to repeal or modify the gift ban law.  It began with “You really can’t buy a vote with a cup of coffee” statement and continues today with assertions that the lack of civility and increased partisanship at the Capitol is caused by the inability of legislators to get drunk together at lobbyist-sponsored soirees at the Kelly Inn.  It then came with refusals to act on other reforms being enacted in other states.  Proposals for  conduit fund disclosure, limits on contributions to parties and caucuses, increased lobbyist disclosure  both in terms of dollar amounts and regarding what specific legislation lobbyists were talking to legislators about.  The tobacco settlement and disclosure of their documents revealed a vast circumventing of ethics laws, showing how special interest money found its way into the private businesses and charities of legislators.

            Proposals to create a non-partisan redistricting commission were rejected, as were laws to declare it a conflict of interest for legislators to sponsor or vote on bills that favored parties they accepted contributions from.  Revolving door legislation to restrict  legislators from cashing in on their connections and friendships for a year after leaving office was also defeated in 1999, despite the fact that then Speaker Sviggum sponsored the legislation.  Later in 2005 then newly elected House member Tom Emmer introduced a package of campaign finance and ethics reform laws that I had drafted back when I was with Common Cause.  The Senate Democrats under Roger Moe refused to give any of the bills a hearing and in the House Republicans and Democrats worked together to kill them.  Consistently and in a bi-partisan fashion political reform was ground to halt.

            Not only has Minnesota refused to reform but it has moved backward.  At one point Governor Pawlenty killed the political contribution rebate fund and Republicans have consistently sought to abolish it permanently.  The gift ban law has been weakened, and in 2013 in a bill pushed by then legislator and now Secretary of State Steve Simon, campaign contributions to candidates were dramatically increased and disclosure laws weakened.  And there has been a bipartisan defunding and weakening of the Campaign Finance and Public Disclosure Board, rendering it statutorily one of the weakest and arguably least effective in country, despite the best intentions of its staff. 

            Of course, we should not forget the fact that the House and Senate Ethics Committees are largely partisan and ineffective and have long since lacked the will or desire to police the behavior of their members.  And we should not forget that we have a state legislator who  is also chair of the Iron Range Resources and Recovery Board, taking a job with a group that lobbies the legislature.  The IRRRB is also being investigated for making partisan patronage decisions in making economic development loans.  Finally, we should not ignore, as the Pioneer Press reported, that since 2002 60 ex-legislators have served as lobbyists or that across the state of Minnesota many local governments do not have binding ethics laws that regulate the behavior of local officials.

            What is all of this result of this assault on political reform?  First, Minnesota has fallen to the back of the pack when it comes to reform and ethics.  The best accounting of the current sorry state of Minnesota’s political ethics laws comes from the non-partisan and well respected Center for Public Integrity.  In its 2009 study on legislative financial disclosure laws, Minnesota receives an F grade, coming in 40th among the 50 states.   In 1999 the same study ranked Minnesota 35th and in 2006 39th.  A steady fall.  Minnesota is deficient in the range of disclosure it asks of legislators and also in terms of them updating that information.  A second 2012 study by the Center measured political accountability and risk of corruption in the state.  Minnesota received a D+ grade, finishing 25th among states.  Notable in this study, Minnesota receives a D- when it comes to effective conflict of interest laws, a D on political financing, and an F on lobbyist disclosure.  Minnesota simply stinks when it comes to political reform. 

            The second result of this failure to reform is an entrenching of special interests in state politics.  Both the Republicans and Democrats have their donors and special interests that entrench political positions, exacerbate polarization, and make political compromise near impossible.  In 2014, $64,000,000 was spent by lobbyist principals to influence legislation at the Capitol.  Combine that with political contributions to candidates, parties, and caucuses, and independent expenditures, and in excess of $80,000,000 or nearly $400,000 per legislator was spent in 2014 to affect legislation or state elections.  No wonder nothing can get done at the Capitol, it is locked down by special interest money that makes it impossible to act.  This is why Minnesota has had two shut downs in the recent past and why it now appears possible that the state is hurling toward another.

            The collapse of political ethics and government reform in Minnesota is directly connected to its failures in governance and why it is no longer a reformer in other areas in the way it once was.  MNSure might be a success when it comes to the number of people who get insurance, but its rollout was a mess and the only reason we have this reform is because of Obamacare.  The old education reforms of charter schools and open enrollment had produced new racial segregation and failed to address the achievement gap because they were not improved upon.  The Fiscal Disparities Act has been gutted and the Met Council weakened and turned into noting more than a patronage tool for governors and a developers.  Minnesota has a failed budget process that is again repeating itself.  And it is unable to make badly needed reforms to infrastructure funding and  local government aid.

            What reform has come down to in Minnesota is money. Republicans seem to think reform is simply cut taxes or spending.  Or in the case of education, Republicans, along with Terri Bonoff, attack teachers' seniority or unions or otherwise bleed schools or other institutions with the idea that less money will force reform.  Contrary wise, often Democrats think that simply more money is the solution.  More money  for education, for example, is needed, but how that money is spent and for whom are more critical issues.

            So reform and innovation is largely dead or un-creative.  Dead because reform got caught in a partisan  crosshair and dead because the reforms most needed--government ethics and money and politics--stalled.

Burwell v Mata: Or the Fate of Obamacare and Same-sex Marriage

Let us speculate on the fate of two cases,   King v. Burwell (Affordable Care Act subsidies to health care exchanges run by the federal government) v Mata v Holder (same-sex marriage).

Given Justice Thomas’ dissent in the Alabama same-sex marriage stay some are speculating that Justice Roberts will vote to make it 6-3 in holding that the Constitution protects a right to same-sex marriage.  Assuming that is correct, there may be a several possible reasons for his vote.

Obviously one answer is that he thinks this is the correct constitutional answer.  Second, the Chief Justice is engaged in some smart politics and strategic decision making.  Should he vote to rule that same-sex marriage is protected under the Constitution he is in the position to write or assign the majority opinion.  He of course could assign the opinion to Kennedy (assuming which I do that he is the fifth vote) or he retains the right to pen the opinion himself, thereby giving him more leverage over what the Court opinion is or simply to ensure that the decision is at least 6-3, thereby strengthening its legitimacy.

Another scenario: He is leaning toward striking down the federal subsidies under the ACA.  This is not an impossible scenario and given rumors that he switched his vote in 2012 regarding the constitutionality of the mandate, it is possible that now he write a 5-4 opinion striking down the subsidies on statutory interpretation grounds.  Thus, voting to support same-sex marriage under the Constitution gives him some political capital or deflects away from his decision in Mata invalidating the federal subsidies.

Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision

Five votes.  Five Catholics.  Five men.  One decision.  Potentially millions of American women denied contraceptive coverage.  This what the recent Hobby Lobby decision is about, but it also reveals three deeper problems–the sexism pervading the current Supreme Court along with its religious parochialism, a serious problem with the role that religion has come to occupy in American society, and the elevation of corporate rights and power that is strangling American society. 
    Burwell  v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby  contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA).  In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
    First, the majority opinion looked to the text of RFRA.  The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The first question was whether the law’s reference to “person” also included corporations.  The Court said yes.  It did that by making two arguments.  One was to ask how a dictionary defined the word.  Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships.  The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations.  Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
    Second, the Court argued that creating a religious exemption under RFRA for a corporation  had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate.  Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
    So think first about the sexism of the decision.  Five male Justices rule that it is ok for an employer to deny women contraceptive coverage.  Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women.  This is bad enough.  But the sexism is even worse–it is about not getting a clue.  Contraceptives are not just about birth control–they are about women’s health.  Many of the drugs used to prevent pregnancies also address other women’s health issues.  I doubt the Justices understand this (even if they care).  One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
    But the sexism is compounded by the Catholicism and religiosity of their votes.  All five guys in the majority are Catholics.  The Catholic Church opposes not just abortion but birth control.  These five Justices seemed simply to vote the sexist Catholic party line in their decision.  But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law.  The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law.  When the First Amendment was written it declared that “Congress shall make no law establishing a religion.”  But RFRA and the five Justice majority appear to have done that.  We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
    Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United.  The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals.  Here, when the rights of corporate owners clashed with female workers it was the former who won.  More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy.  He was correct.  The powers given to property and corporations under the Roberts Court come at the expense of American democracy.  It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power.  Hobby Lobby is just another example of how some have confused the economic and political marketplaces.

Political Arithmetic: Why Math Sucks for Obama and is Important for Ranked Choice Voting

Political science students think math sucks, and so do many politicans!  Yet the fate of Barack Obama, Obamacare, and Rank Choice Voting all resident in their numbers.  Let’s think about how this is the case.

Obama and Obamacare
    Health care reform and Obamacare is really all about numbers.  This has been pointed out several times in the past.
    Health care reform is a necessity in the United States.  America spends about 19% of its GDP on health care or about $2.97 trillion dollars annually.  France is the next most expense at 11.6% of its GDP and it has universal coverage.  America’s population is aging.  Right now the a median age in the US is 37, expecting to rise to 38.7 over the next 20 years as Baby Boomers age. With that aging comes increased health care costs.  US GDP expenditures on health care will continue to rise to well over 20% unless something is done.  Thus, reform of health care was a major priority for Obama.  If we could achieve near universal coverage and cut health care spending even to the level found in France (a one-third reduction in spending), that would free up near one trillion dollars per year to invest in the economy or simply to save.
    For Obamacare to work one needed to achieve near universal coverage by getting many young healthy people otherwise not insured into the health care market.  Increase the insurance pool of those healthy and the insurance markets set up with the health care exchanges will work.
    Yet all of this is now falling apart because of other political math.  The federal health care exchange web site is a mess, producing confusion and too few people who have signed up.  Additionally, after candidate Obama promised the American public if they liked their health care plan they could keep it, millions are receiving notice that their current plan is being cancelled.  The president’s approval rating is falling, over 50% think he is not trustworthy, and his own Democrats in Congress are worried about 2014 and want to act.  Thus, last week Obama issues an executive order asking insurance companies to keep their old policies in effect for one more year.  In essence, Obama is delaying by one year requirements for Obamacare, similar to requests pressed by Republicans only a few weeks ago during the shutdown.
    Here is the math rock and hard place Obama is behind.  First, the request to the insurance companies is merely a request and not an order.  Second, how will cancelled policies be reinstated?  Third, the request is only for a year, thereby pushing the cancellation problems into the center of the 2014 elections.   Thus, the order to delay Obamacare is the product of political necessity but it solves little.  Morever, by pushing the delay it potentially upsets the actuarial numbers that insurance companies need to make the policies work at their current rates.  If people keep their current policies then those enrolled in the new health care exchanges may see their rates go up even more.
    Finally, Obamacare was originally supposed to increase coverage by several millions.  Best estimates by the Census Bureau (as I discussed recently in a blog) are that the numbers of people who will actually gain coverage will be far less than thought and because so little thought was given to increasing the supply of doctors and health care providers there are indications that costs will increase over time.  Bottom line: there is little evidence that Obamacare will trim health care expenditures, bend the cost curve, or really lead to a dramatic increase in the numbers insured, beyond certain populations.
    Okay so here is one last number and thought.  What do we do in a post Obamacare world if the Affordable Care Act collapses on itself?  What if one had simply taken the original 2,000 page law and instead did three things: 1) Allow young adults to stay on their parents policy until  age 26:  2) bar denial of coverage for pre-existing illnesses; and 3)   Allow anyone to enroll in Medicaid and pay for its benefits?  My guess is that this legislation would have totaled about 100 pages and achieved far greater results than Obamacare.

Ranked Choice Voting
    RCV in Minneapolis was all about math too. Some numbers to consider.
    First, had the rules of ballot access been that one needed 500 or more signatures to appear on the ballot for mayor then (based on the final votes on election night) only ten individuals would have qualified as candidates.  Something needs to be done to ensure that only serious candidates who have some support appear on the ballot and many cite the $500 ballot access fee in St Paul as an example.  However, that $500 fee may be unconstitutional.  The Supreme and other courts have struck down excessive ballot access fees as unconstitutional.  Most jurisdictions do fees with alternative signature requirements. This is the better math for Minneapolis–$500 or 500 signatures.
    Second, at 11 PM on election night it was clear that the bottom 29 or 30 candidates mathematically could not win the mayor’s race.  This means that had city charter allowed for it, one could have simply eliminated them on the day after the election, transferred their votes, and the race would have been called then.
    Third, the reason there are no voting machines to do the automatic tabulation is also a product of math.  No two cities seem to run RCV the same way, precluding vendors from making machines that can be approved by the Department of Justice for use in elections.

    Overall, do the math!  Politics is often about numbers that do or do not add up.

Obamacare: Republican Tragedy, Democrat Farce

By now everyone knows that federal roll out of the Affordable Care Act (Obamacare) health care exchanges has been a disaster. But Obamacare is also a tragedy and a farce.  A tragedy because it is a horrible policy, a farce because it is now forcing Democrats to defend what was essentially a Republican idea.
    The Affordable Care Act is a Republican idea.  Obama himself acknowledged that during his 2012 presidential campaign, repeatedly reminding Mitt Romney that the Affordable Care Act was based significantly upon the policy he signed into law as Massachusetts governor.  But Romneycare’s origins goes back to the 1990s–a policy alternative to the Clinton’s failed healthcare proposals.
    The problems with the Affordable Care Act rests with two original design flaws in the law.  First, the legislation was meant to appease business groups and build on an existing system of health care insurance.  There were too many moving parts, too much capitulation to the industry for the law to work. It was essentially a free-market approach to delivering insurance, giving big insurance companies the opportunity to make more money by selling insurance to the uninsured.  The profit motive of private interests and the free market would solve our health care crisis.  This belief lead to a second and more fundamental problem residing in the assumption that economic markets and competition can deliver health care in an efficient, equitable, and affordable fashion.  The fact that the current health care delivery and insurance system is the most expense in the world with 48 million uninsured and mediocre outcomes attest to that.  The Affordable Care Act is a testament to a foolish belief that market mechanisms will solve health care problems. 
    The Affordable Care Act assumes that consumers can make choices about health care and will buy insurance if affordable.  It assumes that insurance companies will offer policies if markets exist.  The law assume that consumer choice and vendor competition will produce savings.  None of this was true before and there was no reason to think that it should have worked under this act.  If anything, the Affordable Care Act speaks to the limits of free market approaches to delivering vital government services such as health care.  No one in their right mind thinks the US military should fights wars and make a profit doing it, or that police and fire departments should let market mechanisms determine how the bad guys are caught and fire put out.   But Obamacare is a quintessential business pro-business free market idea.  Even the subsidies for the poor are pro-business–if individuals cannot afford health care the government will subsidize it–with the money going to private business.  What a windfall for the private insurance profit margin!
     If these design flaws were not bad enough, the Act has three other problems in terms of cost, coverage, and outcome.  First, the Act does little to address costs.  Currently the US spends 19% of the GDP on health care–we have by far the most expensive health care delivery system in the world.  The next closest are countries such as Canada and France at around 12% GDP, but with universal coverage.  Obamacare is supposed to reduce costs by insuring everyone, thereby reducing emergency room visits and encouraging people to visit doctors before a problem gets too serious.  There are also some provisions in the Act that are supposed to cut costs and in general the entire concept of the health care exchanges is that competition will pressure down costs.  All great theory, but as pointed out in a terrific recent article in special issue of Public Administration Review devoted to Obamacare, these ideas have little empirical foundation and actually most of them were already shown to be ineffective in reducing costs when the Act was being debated.
    Maybe short-term health care costs will go down but there is no evidence that longer term Obamacare will “bend the cost curve.”  On top of that  throwing millions of new consumers into a market with no plans to increase the supply of primary care doctors and nurses means there will be pressure to serve more people with existing resources.  The Act also does nothing to address the going health care needs of aging Baby Boomers who will pressure the health care delivery system.  In effect, the law fails to account for the demographic forces significantly driving up health care costs in the system.
    Additionally, Obamacare is far from universal coverage.  Remember initially that out of fear that universal coverage would lead to illegal aliens jumping the fence along the Mexican border to get free medical care in America ,the 12 million or so undocumented individuals living in America are not eligible for coverage, leaving them with the choice to self-deport themselves back to Mexico.  Many Republican states are also choosing not to extend Medicaid coverage.  The result?  While currently about 83% of individuals in America have health care insurance from their employer, through government, or purchased privately, at best Obamacare will push coverage up to about 90%.  At best, the Affordable Care Act does not even cut in half the number of uninsured in America.  It makes a good dent, but passage of the Act expended so much political capital to achieve so little.
    Finally, the Act does little to address the root cause of so many health care problems–poverty and poor life style choices.  Poverty leads to a host of problems that increase health risks, including malnutrition and homelessness.  But Americans are fact and lazy–we eat, drink, and smoke too much.  Obamacare does nothing to address these issues, problems that health care officials say we need to if we are to really reduce costs and improve outcomes to make America more healthy.  In effect, the act does almost nothing to address preventive or public health issues, again adopting a free market approach that individuals should be free to make their own health care choices.
    Despite all these problems, Democrats and their media apologists defend the law.  They say the law can be fixed or improved over time.  That the law was the camel nose under the tent to further reforms or that–to use the great line that often justifies bad laws–“The good should not be victim to the perfect.”  The reality is that Obamacare was a bad law or idea from the start–it was a bad Republican proposal that the Democrats have now embraced.  Couple the original design flaws along with so many self-inflicted wounds in implementation and so many problems forced upon Obama (a massive Republican effort to destroy a law they originally embraced) and one has a recipe for Democrats going down in 2014 or 2016 because of Obamacare.
    Thus the tragedy and the farce of Obamacare might also have an irony too it–Democrats are embracing a Republican idea and may lose politically because of it and Republicans who originally designed the ideas for Obamacare are now opposing it and may win politically.

Members of Congress have an ethical and legal duty to fund the government

The political thinker and Irish Member to the British Parliament Edmund Burke once famously declared the duty of a legislator as between being a delegate and doing what constituents demand versus serving them by exercising one's best judgment.  But there is at least another duty that legislators have and that is a legal if not an ethical duty to comply with their own laws and to support the government they were elected to serve.

               The importance of stating this duty asks under what occasions, if any, are members of Congress permitted to disobey a law as a matter of conscience?  This is the question posed by House Republican efforts to repeatedly defund the Affordable Care Act (ACA or Obamacare) and force a partial governmental shutdown.  In effect, do legislators have a right to disobey and obstruct a law they do not support?  Do they have a right to civil disobedience?  While in general civil disobedience is an important act to test the constitutional values and justice of a society, this is not an option open to members of Congress, at least on this issue and for the reasons Republicans give.

               The relationship between law, justice, and civil disobedience has a long history in the west.  Sophocles' Antigone tells the story of a woman who buried a deceased brother in defiance of the king Creon who ordered her not to do so.  Her decision to defy was premised, in part, upon  concepts of justice and religious grounds, contending that her duty to disobey rested upon a higher law from the gods.  Similarly, Socrates’ trial and defense of his philosophizing invoked a duty to a higher law that justified defiance of human law. St. Augustine was one of the first Christian writers to argue that human laws that are unjust really are not laws.  St. Thomas defined a legal tradition that declared that human law must conform with God’s natural laws of justice, inspiring a generation of political theorists including John Locke who articulated a right to revolution against governments that violated natural rights and laws.  In all of these cases, civil disobedience invoked as an appeal to some higher law or rules of justice that dictated defiance of the law.

               The United States as a country is a product of civil disobedience.  The dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of Independence were acts of civil disobedience, providing the case for why some laws were unjust and should be ignored or defied.  The abolitionists,  including Henry David Thoreau and John Brown, so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and even violence were viewed as proper acts of conscience.  And then of course Rosa Parks, Martin Luther King, Jr., and the many African-Americans who protested segregation by sitting at “Whites' only” lunch counters or who crossed the Edmund Pettus bridge also felt civil disobedience was an appropriate stance to take to challenge laws that thought were wrong.  In all of these cases, appeals to personal conscience, personal morality, or to religious or other values dictated the choices of individuals to defy the law.  But the question is, do legislators have this same right?  May they defy a law they do not support?  Do they have a right to shut down the government?

               Think first about the right of individuals to engage in civil disobedience.  Political theorist John Rawls argued that civil disobedience has a constitutional role in a just society.  It is an appeal to the shared values of a community, aiming to persuade a majority that it is wrong.   Civil disobedience is not an appeal to political expediency or self-interest. It is not a legal right, but an appeal to justice.  Citizens have a general duty to obey the law, but in some cases some feel that the law is wrong and must defy it.  But they do so first with the aim of changing the law and second, cognizant that they face legal retribution for their defiance.  The act of civil disobedience has the potential to change the law because one is willing to go to jail or be punished for one’s act.

               But private citizens are different than legislators and they may have less right to defy laws they dislike.  First, members of Congress not only have a general duty to obey the laws they have authored, but they have taken an oath of office to obey the law.  This current oath commands members of Congress to defend Constitution, accepting this obligation freely, without reservation, and with the help of God.  Such an oath imposes on them a special duty-above and beyond that of a private citizen—to obey laws.  Does that mean congressional members have no recourse to object to laws they dislike?  Of course not.  They can move to repeal the laws they dislike.  House Republicans have tried that 40 plus times when it comes to Obamacare.  The power to legislate and change laws gives them a tool that mere citizens lack.  While one can question the political reasons or wisdom for repeated votes to repeal the ACA, do that is the right of legislators.

 But there is a difference between trying to repeal a law one does not like and defying it.  This is what House Republicans are doing in seeking to defund Obamacare, pushing the government in to a partial shutdown, and perhaps risking a default on America’s debts come October 17.  For good or bad Obamacare is the law of the land—it has not been repealed and it has not been declared unconstitutional.  Members of Congress are under a legal and moral duty to fund laws and programs that they have authorized, even if personally they voted against the laws.  One of the most basic principles of American democracy is majority rule.  Majorities get their way so long as they do not violate the constitutional rights of minorities.  Majority rule settles decisions until such time as a majority reaches a different conclusion. Similarly, majority rule is the rule of Congress.  At some point votes and elections have settled issues and it is time to move on.  This is the case with Obamacare.

Moreover, Republican efforts to defund Obamacare are not premised upon shared constitutional values or principles of justice.  The decision is based on dislike of the law, Obama, or government in general.  Or it is based on political expediency--appealing to what their constituents want or what will appeal to their electoral base--and not on a sense of higher justice.  Or perhaps it is based on  private conscience or belief that the law is wrong.  All these may be great reasons to seek to repeal the law, but they are not proper grounds for refusing to perform one's specific duty to support a law that has been legally adopted in a democratic society.  Contrary to what she make think, Congresswoman Michele is not Rosa Parks--her reasons for opposing Obamacare are not based on appeals to justice and higher laws, but instead on personal and political expediency.

In general members of Congress do not have a right of civil disobedience to oppose laws they have a duty to uphold.  They are not like ordinary citizens exercising the right of civil disobedience.  Finally, legislators who object to the ACA do not have a right to defund Obamacare and hurt the rest of the country with a government shutdown.  In doing that they are not facing legal retribution for their actions as would ordinary citizens face by defying the law.  These members of Congress are taking a political stand, not an ethical one, and they do not have the right to do that.