Biden’s two big obstacles | thearticle

“Well, here’s hoping it’ll be all over soon. Biden is doing his best to steer a delicate path between Progressives who would like ‘Medicare for All’ and moderates/independents who have no

desire to lose their existing insurance, rotten and expensive though it may be. The real issue is whether the Democrats will be able, come the time, to implement any of their policies? The

first obstacle is that they need to win four additional Senate seats to take control of the upper chamber — not so easy when you realise how skewed the Senate is. Wyoming, with a population

of less than one million, and other rural small states, has two Senators to elect, as does California with a population of just under 40 million. The more urbanised States, which typically

support federal government programs, are grossly under-represented. And not all Senate seats are up for election this year; senators serve for six years. If Republicans retain control of the

Senate, under majority leader Mitch McConnell, then we are looking at another four years of gridlock and blocked legislation. So watch out for the results in Arizona, Colorado, Maine and

North Carolina. The second obstacle is far worse, though slow acting — the Supreme Court. In what I call a normal country, parliament debates and passes legislation which then becomes the

law of the land; if you, the voter, do not like this legislation then, when the time comes, throw out the representatives and elect a different set. The ability to do this gives democracy

the edge over any other political system. Unfortunately, the US Constitution means things are a little different. An excellent example is the precarious fate of the Affordable Care Act

(ACA), otherwise known as “Obama Care”. This health care insurance legislation was originally passed by the Democrats, after a huge struggle (won by one vote in the Senate). It benefits at

least 20 million people by enabling them to have subsidised health insurance. After the Senate passed into Republican hands there were about 50 attempts to repeal the law. The ACA survived,

although it was modified by the removal of the individual mandate. Everyone lacking health insurance — private, public, whatever — had to pay a small fee to help support the costs of this

provision. Congress cancelled this unpopular mandate. Certain Republican states which did not want to expand Medicaid — the program for the really poor — took the informal mandate to the

courts, claiming it was unconstitutional and won. How can that be? Article 1 of the Constitution, section 8, defines federal powers at some length: Congress can collect taxes, coin money,

build roads, and establish rules for naturalisation and so on, lots of good stuff. However, you will not be surprised to learn that this venerable document does not mention the regulation of

health care insurance. Constitutional Originalists, judges who think all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted”,

believe that healthcare questions devolve to the States. Chief Justice John Roberts saved the ACA a few years ago by declaring that the mandate is the same as a tax, so it falls under

Article 1. But with the mandate eliminated, that argument is no longer valid. All Democrats and fair-thinking people are outraged by Trump’s recent nomination of Amy Coney Barrett to the

Supreme Court. Mitch McConnell refused to even consider Merrick Garland, who was nominated by Obama nine months before the 2016 elections. Now a Republican Senate have used Trump’s last days

to push Barrett onto the Supreme Court, replacing the progressive Ruth Bader Ginsberg, because they had the votes to do it. Why do we care? Because Barrett is a dedicated conservative and,

like her mentor Judge Scalia, an Originalist and a Textualist — someone who ignores the intention of the law, the problem it was intended to remedy, or significant questions regarding former

legal judgements. The logical conclusion of this is that, if the original document of 1787 does not mention a particular power of the federal government, then it doesn’t exist. The Senate

held four days of hearings with Barrett, but it was pretty pointless because she refused to give her views on anything, including previously decided cases. This got tedious: all the

non-answers were along the lines of “I can’t say because somebody might predict how I would rule”. And, of course, she refused to express any views on climate change, which she described as

a controversial political question. Her conservative views will also be expressed in opposition to LBGTQ rights and environmental legislation. Her appointment to the Court will give a

conservative majority of 6-3. The situation for Biden and the Democrats (if they win both houses) might be compared to that of Roosevelt in the 1930s when he was struggling to enact

progressive legislation, such as social security. How did we end up in this situation? Congress has become very dysfunctional and has hardly passed any legislation in the past four years,

apart from Trump’s big tax cut. The Constitution (Article 1, section 8) states quite clearly that Congress shall “make all laws which shall be necessary and proper for carrying into

Execution the foregoing Powers”. Yet it seems increasingly that Congress prefers _not _to make any laws and to wait for the courts to decide critical issues such as gay marriage or

immigration laws. There always exists a large minority of people or organisations who prefer to file a court case when they are unhappy with some outcome. This is not a happy way to run a

country. Personally, I think the social networks such as Facebook and Twitter share much of the blame. It used to be that opposing political sides got together informally and hammered out a

compromise. That useful activity does not occur anymore, because the mere fact that somebody was talking to the other side would get out. There would be cries of rage from the extremists on

both sides. Is anything fixable? It would take very radical action and a willingness to enact another couple of Amendments to the Constitution. State’s Electors in the Electoral College

matter more than the popular vote for President in the election. They should be abolished as an anachronistic relic from the 18th century. The Senate composition should be changed to more

closely represent the size and population of each state. For example, each state gets one Senator _plus_ an additional number of Senators based on the size of the state. Can you imagine,

presidential candidates hardly visit, or care about, the issues of California’s nearly 40 million people while they go to Ohio twice a week? What kind of a democracy is that? A MESSAGE FROM

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