Democrats Issue Ominous Warning to Supreme Court

For all the claims about President Donald Trump’s dangerous erosion of institutional norms, it is prominent Democrats who are ramping up their threats to pack the Supreme Court unless it starts producing different outcomes on pet issues.

Rule differently on gun control or face restructuring, several Democratic senators warned in a brief filed August 12. Sens. Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Richard Durbin (D-IL), and Kirsten Gillibrand (D-NY), issued the threat in response to the court’s consideration of the constitutionality of a New York City law strictly limiting the transport of guns by their law-abiding owners.

“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics,’” the liberal senators wrote, quoting a Quinnipiac University poll showing that 69 percent of Democrats support court packing. The message from the Democratic senators was not subtle: That’s a nice court you have there. It would be a shame if something happened to it.

Contrary to what the senators are implying, the issue isn’t that the public at large is frustrated with the court. The issue is Democrats. Another recent poll shows that, while 62 percent of Americans have a favorable view of the Supreme Court, that percentage drops to 49 percent for Democrats, according to a recent Pew Research Center survey—the lowest percentage in decades.

Democratic politicians appear to be letting these polls dictate their policy proposals. South Bend Mayor Pete Buttigieg proposed limiting justices’ lifetime terms on the bench, while several other Democratic candidates for the 2020 presidential nomination have already spoken in favor of adding justices to the court.
As the progressive magazine Mother Jones put it: “Court-Packing Went from a Fringe Idea to a Serious Democratic Proposal.”

It’s not the first time Democratic politicians have tried to regain control of the Court by court packing. The Constitution doesn’t fix the number of justices on the court. It ranged from five to ten in the early years of the republic before being codified at nine in the Judiciary Act of 1869.

President Franklin Roosevelt, frustrated that the court had declared key provisions of his New Deal unconstitutional, proposed the Judicial Procedures Reform Bill in 1937. It would have allowed him to appoint as many as six additional justices. Even the Democrats who controlled Congress and his own Vice President opposed the plan.

But while Roosevelt’s plan to increase the number of justices failed, ultimately the pressure Roosevelt brought to bear achieved the desired result. Congress passed a bill that allowed justices who retired to receive full, rather than one-half, pensions. Four justices stepped down within the next four years and another two died, giving him six of the eight justices he eventually appointed. Another justice, Owen Robert, began voting to uphold Roosevelt’s agenda in what has been dubbed the famous “switch in time that saved nine,” on the assumption that his conversion was an attempt to stave off the president’s attempt to reconfigure the court.

Democrat threats to pack the court may be another attempt to threaten justices into changing their votes. Unfortunately, the tactic occasionally works. In 2012, the initial vote of the court regarding President Obama’s signature legislative accomplishment, the Affordable Care Act, was to strike down the law for violating the Commerce Clause. The media, senators and even President Obama began previewing arguments they would use if the court so ruled, calling the court partisan, activist, and illegitimate.

Chief Justice Roberts, worried about the blowback on the court, negotiated a deal with Justices Kagan and Breyer. They voted to overturn the law’s expansion of Medicaid in exchange for him voting to uphold the individual mandate as a tax. Both inside and outside the court, the view was that the chief justice had changed his legal position not on principle but due to public pressure.

However, the Court’s true legitimacy derives from its freedom to make decisions in accordance with law, not in its reaching decisions that will win favor with powerful politicians or media elite. A justice who allows the president or other politicians to change his or her vote does not show independence.

Justice Ruth Bader Ginsburg surprised some recently when she strongly decried court packing for political gain in an interview with NPR’s Nina Totenberg. Noting that the Constitution doesn’t require nine justices, she said it was a bad idea when FDR proposed it, and it’s a bad idea now.

“You mentioned before the court appearing partisan. Well if anything would make the court appear partisan, it would be that. One side saying when we’re in power, we’re going to enlarge the number of judges so we will have more people who will vote the way we want them to. So, I’m not at all in favor of that solution to what I see as a temporary situation,” she said.

The best solution for depoliticizing the Supreme Court is for it to have a smaller role in America’s social, economic, and political life. The high court should determine whether legislation is Constitutional. It should not correct, rewrite, update, or amend statutes, much less tinker with the Constitution itself.

A less political Supreme Court is more probable when Congress legislates clearly and utilizes the Constitution’s amendment process. Much of the temptation for courts to overreach into the political arena arises from the perception that change through the proper channels is not feasible. Democratic senators demanding the Supreme Court take on an activist role is really a declaration of their own incompetence as legislators.

Over the last 30 years, and at several critical junctures, nominations and advise and consent responsibilities have become increasingly politicized. As always, the Constitution’s independent and limited judiciary remains preferable to a hyper political court that is legislating from the bench and subject to the same base political pressures as members of Congress pandering for votes. Similarly, as voters we need to take our responsibility as guardians of the Constitution seriously and elect presidents and senators who demonstrate integrity in dealing with the court.

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How Rent Control Threatens the American Dream

It’s no secret that many parts of the country are experiencing a housing affordability crisis. Homelessness is on the rise in high-cost urban areas and skyrocketing rental prices mean that families have an increasingly tough time making ends meet. This dismal state of affairs is concerning for those who live in these areas already, but a potentially much larger problem, and one that could have effects for generations to come, is the disappearing ability for families across the country to move into these dynamic areas in the first place.

To address these problems, policymakers in California and Oregon (among the worst states for housing affordability) have decided on the one policy choice that is almost universally despised among economists: rent control. The idea has also received support from Senator Bernie Sanders (I-VT), who has made national rent control a key part of his presidential campaign. The quintessential “sounds-good-but-doesn’t-work” policy, rent control is a government-imposed limit on how much landlords can increase rents for property they own. Once signed by Governor Newsom, the California legislation will limit increases in rent to five percent, plus the rate of inflation. Oregon lawmakers passed a statewide rent control law in February that limits rent increases to seven percent, plus the rate of inflation.

Even economists who typically favor government intervention in the economy generally don’t like rent controls because they simply fail to achieve their intended goal of controlling rental costs. Instead of being forced to rent units at below-market rates, landlords facing rent controls often respond by converting their units into condos that can be sold or business properties that are not subject to rent control laws. This ultimately shrinks the supply of units available to rent, driving up the cost of renting for everyone. According to recent research from Stanford University, this is exactly what happened when San Francisco implemented rent control laws in the 1990s—stabilizing rent for a few while reducing the supply of units available for rent by 15 percent and increasing rental costs across the city by 5.1 percent.

Even more concerning is the effect that such policies will have on the ability for families to move into the places where they have a better chance at finding work, moving up the income ladder, and providing their children with the best opportunities to succeed. Although it has been more than a decade since the great recession, America’s economic recovery has been decidedly geographically unequal. Research from the Economic Innovation Group (EIG) has documented a growing divide, since the great recession, between prosperous (typically urban) and distressed (typically rural) communities. For example, employment in prosperous zip codes fully recovered from the recession by 2013 and by 2016 these areas had 3.6 million more jobs than in 2007. Distressed zip codes, meanwhile, by 2016 had 1.4 million fewer jobs than in 2007 and are not expected to ever fully recover. The researchers also note that, “highly populous counties—those with more than 500,000 residents—were far more likely to add businesses above and beyond 2007 levels than their smaller peers.” Between 2007 and 2016, nearly 60 percent of large counties added businesses on net, while only about 20 percent of small counties did so.

Furthermore, recent research from the Equality of Opportunity Project is clear that place matters for the ability of Americans to move up the income distribution across generations as well. For children in poor families, growing up in a county with less concentrated poverty, lower crime rates, a larger share of two-parent families, less income inequality, and better schools has a significant positive effect on future adult income. But despite these disparities in opportunity, Americans are less geographically mobile than ever. In the 1950s, about 20 percent of the population moved every year, but by 2017 only about 10 percent did. Long-distance moves are often job related and the percentage of job seekers relocating for a new position was 41.8 percent in 1986, but just 10.1 percent in 2018. Certainly, there are multiple causes for the decline in geographic mobility, from state-specific occupational licensing requirements to a decline in job switching, but the towering “cost-of-living” barrier is certainly a piece of the puzzle.

Geographic mobility is a crucial part of the economic dynamism that enables the American Dream. There is a very real shortage of affordable housing across America’s most dynamic areas, but rent control is an ineffective solution to this problem. Instead, policymakers should address the root of this problem, the lack of housing supply, by reforming zoning rules, eliminating onerous mandates on new construction, and allowing housing supply to meet demand. Rent control is a band-aid style solution imposed from the top down, it will not address the housing affordability crisis and is almost certain to make housing even less affordable for Americans seeking opportunity.

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Walmart Reforms Healthcare

Most of the current debate over healthcare focuses on which third party will pay for healthcare, instead of focusing on increasing access, improving quality, or decreasing costs for patients. Surprisingly, Walmart has stepped up to help change the conversation by opening a new type of health clinic in one of their stores.

The delivery of high-quality care requires the combination of several components, among them, access to healthcare providers. For those living in impoverished urban or rural areas, access to healthcare providers can be limited. With the closure of 64 rural hospitals between 2013 and 2017, only 82 percent of Americans now live within 10 miles of the nearest hospital.

On the other hand, over 90 percent of Americans live within 10 miles of a Walmart. Walmart has begun the process of rolling out healthcare clinics in stores that would offer patients low cost medical, dental, vision, and mental healthcare.

Walmart’s innovation is to clearly list and compete on prices, something currently missing from the healthcare industry in America. This transparency helps uninsured and low-income patients that are concerned about out of pocket healthcare costs. They currently have prices listed on their website offering $20 flu tests, $30 annual adult checkups, and $45 vision exams. They will be staffed by licensed medical professionals trained to handle a wide array of treatments.

It can feel weird to treat healthcare like just another transaction. For many in the healthcare industry, treating diseases is a form of service for others. Many professionals treat it as a calling rather than just another job—and with people’s health and lives in their hands, that perception is tough to argue. However, consumers shopping around for which services best meets their needs, with both a price and quality comparison, is healthy for competition. Competitive pressure helps incentivize firms to reduce costs, employ new technologies or management techniques, and pass those lower prices on to consumers even as quality improves. This graph from the American Enterprise Institute (AEI) demonstrates how in industries that face stronger competitive pressure, products like automobiles, clothing, TVs, and toys have fallen in price compared to wages, unlike hospital services and medical care which face little price competition.

As the costs of healthcare continue to rise, this transparent pricing will help put downward pressure on prices, now that patients can see them before scheduling an appointment. By removing individuals from the decision-making process through opaque pricing, third-party payers face no pressure to reduce prices for consumers. The bureaucracy of third-party payers adds more people to the payment process, which naturally increases costs as more people are involved in handling the money. While insurance is important for unexpected and expensive procedures, for predicable, routine procedures it simply adds costs. Walmart’s transparent pricing can help fix this.

In healthcare, innovation can take many forms and even new practices that seem impractical to us before implementation can be a valuable test of new management techniques and industrial organization. Countless inventors or business leaders were told their ideas were crazy before they revolutionized their field. Ford laughed at Lee Iacocca’s Minivan idea, and James Dyson was told his idea for a new type of vacuum was ludicrous, but both became incredibly successful.

This experiment by Walmart is a new way to focus on convenient healthcare delivery in a cost-conscious way. Obviously, experimentation in healthcare treatments themselves pose risks for the patient. But rather than experimenting on people, this innovation is an attempt to develop a better method of delivering care. This type of low risk innovation should be encouraged as a means to develop more efficient methods of delivering healthcare.

In addition to helping lower prices, offering healthcare services in a Walmart location could help improve healthcare utilization. How many times have you or your friend gone into a Walmart or Target “just to get one thing” and ended up spending an hour buying things you didn’t come in for? Offering healthcare services in this location could help encourage people who feel a little sick, but wouldn’t make the trip just to the doctor’s office, to stop in for a quick appointment.

Another way that Walmart could encourage healthcare utilization is if their clinics reduced wait times. Long wait times deter patients from scheduling a visit until their symptoms worsen, which can result in serious complications. The expansion of telehealth services provides a poignant example of how more convenient care helps encourage patients to use healthcare services. For instance, when veterans were offered telepsychiatry as an option to treat PTSD, their usage of the services were much greater than when they were forced to schedule a face to face appointment with a psychiatrist during the day.

Walmart’s innovation is not the first of its kind; outside of the U.S., the Narayana hospital system has experienced success with a similar model. Narayana has succeeded by employing different management techniques than those used in the U.S. healthcare system, which has helped them reduce the cost of healthcare services significantly. For instance, a heart bypass surgery that costs $100,000 in the U.S. costs between $1,000-2,000 for Narayana. Like Walmart, they also view medicine as a business, making the prices clear for patients and focusing on reducing costs so that more patients are able to receive medical care.

The thought of low-cost or budget healthcare carries a stigma of low quality to match the reduced price tag. However, when gains in productivity due to innovation are passed on to consumers, lower costs do not translate to lower quality.

By focusing on low, transparent prices, Walmart’s new health clinics have the potential to help slow runaway healthcare costs, which continue to increase. Providing a convenient, low-cost alternative can only help patients. Patients have varying needs, budgets, and locations, and healthcare should reflect that. Walmart’s innovation is a potential welcome disruption that could help bring competition to healthcare, and increase access to the care patients need.

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IN BRIEF

TAX-RETURN FISHING EXPEDITION: "President Donald Trump lost his bid Monday to shield his tax returns from the Manhattan District Attorney's office, which subpoenaed them as part of an investigation into 'hush payments' to Stormy Daniels and Karen McDougal." (ABC News)

SCOTUS RECONVENES: "The justices are returning to the Supreme Court bench for the start of an election year term that includes high-profile cases about abortions, protections for young immigrants and LGBT rights," the Associated Press reports. Be sure to check out The Heritage Foundation's comprehensive overview.

NEW WHISTLEBLOWER: The Associated Press reports, "A second whistleblower has come forward with information about President Donald Trump's dealings with Ukraine." The report further reveals, "Crucially, the new whistleblower works in the intelligence field and has 'firsthand knowledge' of key events." According to Sen. Lindsey Graham, "This is Kavanaugh all over again."

IMMIGRATION PROCLAMATION: Trump signs order to prevent taxpayers from subsidizing healthcare for legal immigrants (The Daily Wire)

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