texas r1
1ac international law adv
Advantage 1: International Law
It’s on the brink – but judicial pressure grounded in transnational legal
processes can block Trump from dismantling the international order
Koh 10/13 [Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, “The Trump
Administration and International Law,” October 13, 2017,
https://www.buffalo.edu/baldycenter/events/speakers.html#title_775339459]
The most serious argument against my position comes from those international lawyers,
in America and elsewhere, who don’t trust Donald Trump and his administration to get
this right. As should be clear by now, I share this skepticism. But in the international order , there
is only one United States , and regardless of who is president, the U.S. plays a
critical role as a balance wheel of the international system. What the first
eight months of the new Administration have shown —particularly, the blocked Travel Ban and
the unconsummated threats to withdraw from the Iran Nuclear Deal and the U.N. system—is that the U nited S tates is
much bigger than Donald Trump. And this lecture has shown that Donald Trump will shift
on many aspects of his stated foreign policy aims , if subjected to enough
political pressure .207 Our challenge as participants in transnational legal process
is to keep the Trump Administration’s feet to the fire , to demand a Syrian policy and strategy, not
just a set of military strikes, and to seek a pivot to a broader smart power diplomacy that
might resolve the underlying Syrian crisis. And if America’s president is truly serious about pursuing
such diplomacy, he would be wise to revise other aspects of his chaotic early foreign
policy. In particular, he should withdraw his offensive Travel Ban 3.0; do a better job talking and listening to our allies
and working with critical organizational partners like NATO and the European Union; dial back his bombastic rhetoric in
situations of growing tension with hostile countries like North Korea, and be more careful about telling the truth and
respecting our intelligence agencies, so that listeners will actually believe our government when, for example, we accuse
Russia of complicity in Assad’s April 6 chemical weapons strike. If he cannot make these adjustments on
his own, concerted pressure from litigation , allies , and public opinion will be
necessary to make him bend . In recent months, in the so-called “Astana process,” the Russians have
expressed receptivity to the notion that Iran, Russia, and Turkey would be guarantors of so-called “de-escalation zones”
within Syria, authorized to use any necessary force to prevent civilian harm within thosezones.208 The proposal does not
mention chemical weapons, provide any legal rationale, or offer a credible group of guarantors. Nevertheless, it would
make sense for the Trump Administration to seize on Russia’s seeming concession that indicate within Syria are both a
legally and politically available policy option. Ultimately, finding a durable solution to the festering crisis
in Syria will require far more sustained diplomacy than we have seen to date from this
Administration. Surely, an institutional State Department populated by the kind of U.S.
diplomats who brought about Dayton, Paris, and the Iran Nuclear Deal are capable of
finding and concluding creative diplomatic solutions. What remains to be seen is whether this
President and Secretary of State will give them the mandate and discretion to do so.209
III. What’s at Stake Several important lessons emerge from this rapid tour d’horizon. America’s observance of law,
international and constitutional, is preserved not just by the federal political branches and the leaders who lead them at
any particular time, but by an ongoing transnational legal process whose diverse stakeholders elected officials do not
control. Institutional habits, once formed, prove surprisingly hard to break. With respect to international organizations
and regimes, as the old song goes, breaking up is hard to do. And in the 21st century, the better way to produce good
foreign policy outcomes remains Engage–Translate–Leverage, not Disengage–Black Hole–Hard Power. When Donald
Trump took office, he was faced with international and domestic rules that created a persistent default path to compliance
with pre-existing norms. Once in place, the
law became a “guard-rail” for politics, and early signs
indicate that most of those guard-rails are still holding . A new president cannot
simply have his way. Domestic constituencies and interests with institutional authority to push back are doing so,
as are foreign allies with shared interests in preserving rules of law within a painfully constructed international system.
Government bureaucracies long devoted to pursuing solutions to climate change or
do not turn on a dime .210 The United States has become
promoting diplomacy in foreign policy
deeply enmeshed in many multilateral regimes, and exit from those regimes is neither
immediate nor easy. Most fundamentally, many Americans want what many of these
regimes offer, whether it be a nuclear-free Iran or clean energy. So exit, if it is attempted, will be challenged, by
transnational actors committed to the default agenda. And if exit and change are made difficult, the
Administration will have to ask itself “how critical, really, are these policy changes and
institutional exits to the core agenda of this Administration?” Whatever the new Administration
may say to claim that it has fulfilled particular campaign promises, the real question is how much does it really
care about any particular policy initiative, especially when those resisting say, a religiouslybased Travel Ban, are ready to fightback together against a radical policy change from both
the inside and the outside. So even for an Administration that made many promises to win a tumultuous
campaign, enough internal and external resistance to change can make the Administration’s
path of least resistance to stay in and underperform within existing legal
regimes , rather than to absorb the costs of actual violation of standing
international rules and exit from standing international institutions
In battling over all of these issues, what’s really at stake? In brief, our current system of Kantian global
governance versus a cynical system of authoritarian spheres of influence. That is why we
are potentially at such a dramatic moment of change . What is being rejected
now is not just a prior administration’s foreign policy strategy, but a broader political
philosophy of international cooperation , of the kind that philosopher Immanuel Kant talked
about in his great pamphlet, Perpetual Peace.211 Significantly, Kant did not advocate world government and those who
attack Kantian global governance as “world government” are attacking a strawman. What Kant declared instead was that
“[t]he law of the nations shall be founded on a federation of free states”: that law-abiding nations should live
in a law-governed international society, where sovereign states that respect basic values—
democracy, the rule of law, individual freedom, and the mutual advantages derived from peaceful intercourse—engage
in mutual discourse based on respect for domestic and international rule of law in order
to achieve shared outcomes.” Or otherwise put, Engage, Translate, and Leverage. Kantian
global governance is a system that the United States helped to create, and that has
sustained our global leadership role since World War II. It formed the basis for the
United Nations—our system to end war and promote human rights—and the Bretton Wood system to
govern international monetary flows, trade and development through the IMF, WTO, and
World Bank—our system to end global depression and poverty. Kantian global
governance has allowed the U nited S tates to lead a group of like-minded nations to organize
an ambitious multilateral attack on all manner of global problems: e.g., climate change ,
through the U.N. Framework Convention on Climate Change; intellectual property , through the World
Intellectual Property Organization; and global health , through the World Health Organization. For seventy years,
the United States has been the driver, the balance wheel of this Kantian governance system: whether it be in the United
Nations, the World Trade Organization, the Paris Climate Change Regime, or the Iran Nuclear Deal. But as I speak, all of
these historical experiments, as well as the Brexit-led attack on the European Union are under threat of displacement by a
counter-model of Orwellian Spheres of Influence. Remember the nasty and brutish world that George Orwell described in
his haunting1984: where cynical global mega-powers—indistinguishable from one another in their authoritarianism,
totalitarianism, and commitment to disinformation and “fake news”—violate human rights and the rule of law within their
own spheres, while making cynical alliances and manipulating public opinion to make today’s adversaries tomorrow’s
allies.212 Unlike Kant, Trump does not seem to believe in universal rights or accept the notion that everyone can rise
together. His “America First” strategy, most recently repeated in his first United Nations speech, grimly views our
interactions with the world as zero-sum, an approach that inevitably promotes reciprocal self-centeredness on the part of
other powerful nations.
Will we head in this Orwellian direction? Will Donald trump international law? Will he change the
process, will it change him, or will consistent “rope-a-dope” resistance force him to adapt and change course in a more
international law-friendly direction? And as his fragile coalition comes under stress, will it solidify or crumble? The
answer , of course: we shall see , but the early signs give reason for optimism . As this
review has chronicled, in some issue areas, bold public acts of resistance are playing a
critical role in blocking Trump’s initiatives . In other areas, bureaucratic inertia, path
dependence, overly high opportunity costs, and international realpolitik realities, have
posed powerful constraints . In many of these areas, both heroic and mundane constraints can be seen at
work. But the ultimate challenge for those who wish to join forces actively to resist is to
search for, find, and apply political pressure to those critical pressure
points within transnational legal process that can be strategically leveraged
by anti-Trump actors .
And is the rope-a-dope working? While we are still in the early months of this administration, here’s the tally so
far. More than 40 Executive Orders in six months, with little real impact. Fourteen senior White
House officials resigned in 6 months. A stunning loss on repealing Obamacare. Travel ban: twice blocked.
Torture order: never issued. Climate: a claimed withdrawal that will not go into effect until after the next presidential
election. Iran nuclear deal still in place. North Korea: saber-rattling and rhetoric, but no real change
in policy. Russian hacking: continued turmoil, many active investigations. Ukraine: mobilizing
transnational legal process on its own. IS and Syria: borrowing from the Clinton
playbook, but lacking the “smart power” plan that might achieve a real foreign policy.
Many strained alliances, both with foreign governments and with Trump’s Republican allies. Little progress on
Trump’s core agenda. And all of that less than a year into a four-year term. In closing, I am
reminded of an old joke by comedian Mel Brooks, playing a 2,000-year-old man. That super-elderly man is asked, “Before
the Almighty, did you believe in any superior being?” His answer: “There was this guy, Phil; and we used to plead, ‘Oh
Phil, don’t kick us; don’t beat us; don’t hurt us.’ Until one day, lightning came out of the sky and struck Phil down. At
there’s something
bigger than Donald Trump . He does not own transnational legal process. He
is just another player in it. But what this lecture should remind you, is that, so are we. As are all the other
which point we realized, ‘There’s something bigger than Phil!”213 Well, in the same way,
transnational actors I have mentioned. In sketching this early picture, I am intensely mindful that the fight is just
beginning. Inevitably, a “rope-a-dope” strategy wears down both sides. While the resistance has won some
impressive early victories, the constant battering by the Trump Administration may have
a longer-term corrosive effect on the health and well-being of our democratic
institutions. And while in Donald Trump’s America, legal guard-rails may be keeping the traffic of power on the road
of law, more or less, in other countries where democratic institutions and civil society are weaker, the news is far darker.
China, Russia, and illiberal democracies like Hungary, Poland, and Venezuela are
emerging not just as spoilers, but as active predators within the liberal international
order. Perhaps our postwar alliance system can preserve and continue to build the international order by keeping these
illiberal states within the guardrails. But as I write, pressure on human rights activism is visibly
growing , not just in these states, but in other democracies takes throughout Europe as well as India. The
language of human rights and democratic sovereignty are increasingly being turned
against the whole idea of external monitoring of domestic compliance with international
law.214
Put another way, the game is on , and the stakes are high . The Fight is in its early
rounds, and the transnational legal saga is just beginning . As you all know from living here
in Topeka, Kansas, the home of Brown v. Board, as Dr. Martin Luther King, Jr., used to remind us, the arc of history is
long but it bends toward justice.215 But it doesn’t bend by itself. We are all participants in transnational legal process. So
it is up to us, as the story of this administration unfolds, to continue to fight to help the arc of history bend in the right
direction.
Failure to constrain Trump causes extinction – nuclear war, climate change,
disease, and prolif,
Baum 16 – Seth, is executive director of the Global Catastrophic Risk Institute, a nonprofit think tank that Baum co-
founded in 2011. Baum’s research focuses on risk, ethics, and policy questions about major threats to human civilization,
including nuclear war, global warming, and emerging technologies, December 9th ("What Trump means for global
catastrophic risk," Bulletin of the Atomic Scientists, Available online at http://thebulletin.org/what-trump-means-globalcatastrophic-risk10266, MSCOTT)
In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear
non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s
former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons.
Now, 30 years later, Trump—following
a presidential campaign marked by impulsive ,
combative behavior —seems poised to become one of those unstable world
leaders . Global catastrophic risks are those that threaten the survival of human
civilization. Of all the implications a Trump presidency has for global catastrophic
risk —and there are many—the prospect of him ordering the launch of the massive
US nuclear arsenal is by far the most worrisome . In the United States, the president
has sole authority to launch atomic weapons . As Bruce Blair recently argued in Politico,
Trump’s tendency toward erratic behavior , combined with a mix of difficult
geopolitical challenges ahead, mean the probability of a nuclear launch order will be
unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be
disobedience by launch personnel—though even this might not suffice, since the president could simply
replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who
refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to
relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense
secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began
talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world.
Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons
operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities
abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is
to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia ,
which both have large arsenals of long-range nuclear weapons and tense relationships
with the United States, are the primary candidates for a nuclear conflagration with
Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai
Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a
war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting
opportunities to improve US relations with Russia. The United States has long been too dismissive of
Moscow’s very legitimate security concerns regarding NATO expansion, missile defense,
and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian
President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO
allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable
opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could
Russia could become aggressive , perhaps invading the Baltic
states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such
an invasion could lead to nuclear war . Additionally, Trump’s pro-Russia stance
could mean that Putin would no longer be able to use anti-Americanism to shore up
domestic support, which could lead to a dangerous political crisis . If Putin fears a loss of
power, he could turn to more aggressive military action in hopes of bolstering his
support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one
of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US
backfire. Without US pressure,
relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home.
Trump has been accused many times of authoritarian tendencies , not least due to his praise
for Putin. He also frequently defies democratic norms and institutions, for instance
by encouraging violence against opposition protesters during his presidential
campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule
against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for
example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the
president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself
becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would
not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government
personnel and the public—compliance that cannot be taken for granted. Already, government officials are
discussing how best to resist illegal and unethical moves from the inside, and citizens
are circulating expert advice on how to thwart creeping authoritarianism. But the
president-elect will take office at a time in which support for democracy may be declining in the United States and other
Western countries, as measured by survey data. And polling shows that his supporters were more likely to have
authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his
supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that
through force of his own personality, he would achieve results where normal elected officials fail.
An
authoritarian US government would be a devastating force. In theory,
dictatorships can be benevolent, but throughout history, they have been responsible for some
of the largest human tragedies, with tens of millions dying due to their own governments
in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of
modern technology, an authoritarian United States could wield overwhelming military
and intelligence capabilities to even more disastrous effect . Return to an old world order.
Trump has suggested he might pull the United States back from the post-World War II
international order it helped build and appears to favor a pre-World War II isolationist mercantilism that
would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating
from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such
a
retreat from globalization would have important implications for
catastrophic risk . The post-World War II international system has proved
remarkably stable and peaceful . Returning to the pre-World War II system risks
putting the world on course for another major war , this time with deadlier weapons .
International cooperation is also essential for addressing global issues like climate
change , infectious disease outbreaks , arms control , and the safe management of
emerging technologies . On the other hand, the globalized economy can be fragile. Shocks in one place can
cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that
are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless,
complete rejection of globalization would be a dangerous mistake. Playing with
climate dangers . Climate change will not wipe out human populations as quickly as a
nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just
as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and
calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore,
giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who
denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy
independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his
energy policy puts more greenhouse gas into the atmosphere—as it may by increasing
fossil fuel consumption—it will increase global catastrophic risk. For all global
catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election
shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe.
His election also offers an important reminder that outlier events sometimes happen. Just because election-winning
politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win.
Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.
The plan solves Judicial recognition of the Right to Healthcare brings courts in compliance
with the tenets of ilaw and mobilizes support for legal rights protections
Yamin 5 [Alicia Ely Yamin, JD, MPH, “The Right to Health Under International Law and Its Relevance to the United
States,” Am J Public Health, 2005 July; 95(7): 1156–1161]
RELEVANCE TO THE UNITED STATES
The relevance of consensually agreed-upon international norms to domestic debates on health policy would be selfevident in most of the world. However, historically the United States has been uniquely averse to accepting international
human rights standards and conforming national laws to meet them.38 The United States is also the only
industrialized country in the world that does not provide a plan for universal health care
coverage and some kind of legal recognition of a right to care .39,40
It was not predestined that the United States should have diverged so greatly from the rest of the developed world in its
attitudes about access to health care. Even after various reform proposals had floundered, in 1944, before Eleanor
Roosevelt and her colleagues included health and medical care in the Declaration, President Franklin Delano Roosevelt
argued that every American was entitled to, inter alia, “the right to adequate medical care and the opportunity to achieve
and enjoy good health.”41(ix) Cold War sentiments undoubtedly played a role in defeating an important proposal by
President Harry Truman for national health insurance, just as they distorted international human rights law.42 A wide
variety of factors have been cited for the continuing failure of the United States to
embrace a national health program, including a lack of class identification and a weak
labor movement, negative attitudes about government, and political-structural
explanations relating to the US constitutional system.43–45
In this context, the discourse of rights can reconfigure public expectations and
commitments . For instance, when access to health care is construed as a matter of right, it
is not dependent on good behavior. Even if there is a widespread belief that ill health is often the result of
poor personal choices, just as this society provides defense counsel to criminal defendants, who
arguably may have exercised poor choices, so too would the state have an obligation to
ensure access to health facilities, goods, and services.1 Further, once health is framed as a
right, the contours of debates about the role of the state and markets shift .
Despite discontent with inefficiencies and poor quality of care in many industrialized countries, the
government’s obligations with respect to health care are well entrenched in society as
well as law in most of the developed world.39,40
The U nited S tates has undertaken international legal obligations relating to the right to
health. The United States is a party to the International C onvention on the E limination of all Forms of
R acial D iscrimination (Race Convention), binding itself to take measures to eliminate racial disparities in public health
and health care.14 In other cases, the president has signed treaties signaling the government’s intent to be bound by the
as a
signatory to the ICESCR , the C onvention on the E limination of All Forms of D iscrimination A gainst
W omen, the Convention on the Rights of the Child, and others, the United States is bound
not to contravene object or purpose of those treaties , an obligation that becomes relevant
provisions in the future, but the Senate has not given its “advice and consent” for ratification. Nevertheless,
in, inter alia, assessing US trade and aid policies to the extent that these have health impacts.46
Further, despite the notoriously thin legal grounding for any right to health
care in
domestic law, discrete aspects of health—including health care—are already construed in terms
of judicially protected rights in the United States. For example, in addition to entitlements to health
coverage for defined population groups at the federal level, the Emergency Medical Treatment and Active
Labor Act imposes some obligations for the screening and treatment of persons coming
to the emergency department of any hospital participating in the federal Medicare program.47 Federal
courts have also been active in ensuring that the conditions and treatment of patients in
psychiatric hospitals comply with constitutional standards.48 Also, certain states have been less
reluctant than the federal government to impose an affirmative obligation to provide services to under-served
populations.49
Moreover, constitutional law can and does change to accommodate changes in public
perceptions and political philosophy. As Archibald Cox argued, accepting that government is
“not merely about policy but also has affirmative obligations to satisfy basic necessities of
citizens [ including medical attention ] is the next great challenge of North
American constitutionalism .”50(p118–119) Invoking legal realism, Cass Sunstein goes further,
suggesting that “ with a modest shift in personnel ” on the Supreme Court, economic
and social rights, including health, “could well be included in our
constitutional understandings , and certainly in the nation’s constitutive
commitments, which is where they belong.”41(p108)
Even if—especially if—such a “shift in personnel” is not immediately forthcoming, human rights as
enshrined in i nternational law offer a powerful alternative discourse to the
prevailing market-oriented one through which to understand and mobilize
public concern regarding issues such as disparities in treatment and access to care in
the United States.10,41 Public consciousness can precede and encourage legal
recognition , which in turn reinforces public awareness of concerns in terms
of rights .41
For example, the implementation of the right to education is surely deeply flawed in the United States, and experiments
with privatizing aspects of education through charter schools and voucher systems may hold appeal to some in the face of
gross inefficiencies.51 Nonetheless, in contrast with notions about health care, the notion that everyone
has a right to basic education as a prerequisite for sustaining a democratic society is now
well ingrained in American culture, as well as in law.52 Yet constitutional recognition of the
idea that the federal government has a role to play in adopting proactive measures to
ensure some degree of equality in basic education is only 50 years old, which suggests
that consciousness of health as a right might be susceptible to a similarly
dramatic shift.
In the immediate term, well-established standards relating to nondiscrimination and equal
protection are extremely relevant to creating accountability for aspects of the right to
health in the United States.53 For example, once a state has taken steps to implement health rights,
such as through Medicaid, courts are obligated to ensure that it is done in a nondiscriminatory
manner, which affords judicial protection .54
The plan emboldens the judiciary to enforce human rights standards --Court scrutiny supplements legislative and executive decision-making without
overstepping its bounds
Flood and Gross 14 [Colleen M. Flood is a Professor in the Faculty of Law, University of Ottawa, Aeyal Gross is
an Associate Professor in Tel Aviv University’s Faculty of Law, also a Visiting Reader at SOAS, University of London,
“Litigating the Right to Health: What Can We Learn from a Comparative Law and Health Care Systems Approach,” Health
and Human Rights Journal, December 2014 2:16]
How should courts approach health rights litigation?
What, then, is the best approach to litigating
health-related rights? A right to health care is
an important feature of any health care system. However, courts in adjudicating health
human rights need to frame that right in the context of the larger equity and
solidarity goals of a public health care system. There are enormous pressures to fund all health care,
all services, and to pay exorbitant prices for drugs and treatments often of very limited effectiveness.
One danger with a rights-based approach is that it can reinforce the individual demands for high-priced treatments, thus
exacerbating the difficulties governments have in running fair and efficient health care systems. Consequently, courts need
to be careful when second-guessing governmental decision-making in this regard. On the other hand, we
recommend careful judicial scrutiny of initiatives that are unequivocally reductions in
equality and access—for example, measures taken to reduce access on the part of the poor through copayments, or to de-insure vulnerable groups, such as refugees or other migrant groups.
Our research has shown that in some of the Latin American countries we reviewed, and a number of European countries
where EU law prevails, courts tend to be more ready to intervene on an individual application seeking, for example, access
to a new drug or therapy.30 We contend that in this domain, courts should exhibit restraint and be cautious about secondguessing decision-makers who are striving to balance community needs with individuals needs/wants within a universal,
public system.
On issues of individual application for specific goods and services, we support the middle route of administrative review
for procedural fairness and for reasonableness in decision-making. We see this route being favored in the UK, Israel, and
South Africa, and in a single New Zealand case; the Brazilian Supreme Court also shows some movement in this direction.
This kind of judicial approach resonates with the “accountability for reasonableness” framework that Norman Daniels first
put forward, calling for a principled and transparent process for priority setting.31 The judicial process itself is
deliberative in character and thus can foster accountability for reasonableness on the
part of those charged with safeguarding access to health care: it requires the parties
to bring evidence and reasoned arguments to the courts ; it requires the
courts to provide reasoned arguments for its decision ; and the record of
dissenting arguments fosters public discussion.
Much ink has been spilled trying to determine a fair basket of services in terms of the
minimum core, to give content to a “right to health.” In truth, such offerings must
change over time as technologies and the health needs of the population change. Thus, for example, it may well be
fair to refuse public funding for dialysis treatment in a poor country, yet it will not be considered fair in a country with as
many resources as Canada.32 This means that courts, in adjudicating a right to health, are likely to be
most effective in ensuring that public decision-makers follow a fair process in
decision making, weighing the interests of individual needs with the importance of
fairly distributing limited public resources across the whole population.
In contrast to the appetite on the part of courts (in some countries) to hear individual petitions vis-à-vis health related
rights, courts tend to be much more reluctant to intervene in larger policy questions, particularly those directed at the
structure of the system such as, for example, a challenge to a policy implementing co-payments or removal of insurance
coverage for certain segments of the population, such as migrant workers and refugees.33
We do see that if governments take progressive measures to, for example, introduce a universal mandate for health
insurance (as has happened in Taiwan and the US), then the courts will (even if only just) uphold governmental policy.
However, they are much more reluctant to overturn governmental policy that is retrogressive.
We argue that a
properly framed right to health could and should embolden courts
to take a close look at policy measures that are clearly retrogressive, and push systems
towards a commitment to universal, public health care that secures access on
the part of those most in need—not because courts can replace policy decisions, but
rather because they should scrutinize whether these decisions adhere to human
rights standards . This need is even more apparent in systems with gross inequities between those left in the
public system or uninsured and the minority that benefit from a private system; courts should analyze health
human rights claims with a view to improving this redistribution problem.
We, of course, do not underestimate the difficulties inherent in this endeavor and agree with Paul Farmer that the health
and human rights movement cannot pin all its hopes on legal battles, but must also focus on broader solidarity and,
pragmatically, the provision of services for those in need.34 However, wherever possible, courts should both
protect and assist the democratic process of establishing universality , equal
access , and reasonable coverage for health care. In adjudicating upon health related rights, courts
should keep firmly in mind the overall equity and equality agenda underpinning health
human rights. Scrutiny of decision-making through the lens of health equity and equality
will better achieve the inherent values of health human rights laws.
Only judicial enforcement can institutionalize ilaw within American
jurisprudence
Saito 2 [Natsu Taylor, Professor of Law, Georgia State University College of Law, “MID-ATLANTIC PEOPLE OF
COLOR LEGAL SCHOLARSHIP CONFERENCE: The Plenary Power Doctrine: Subverting Human Rights in the Name of
Sovereignty”, 2002, lexis]
Today, the human rights idea is universal, accepted by virtually all states and societies regardless of historical, cultural,
ideological, economic, or other differences. It is international, the subject of international diplomacy, law, and institutions.
n5
The United States was one of the earliest proponents of the basic principle that state sovereignty cannot override basic
human rights or humanitarian law. n6 Following World War II, the United States was the leading advocate among the
Allied Powers of incorporating this principle into the London Charter, justifying the criminal trials held at Nuremberg and
Tokyo on the grounds that German and Japanese leaders were personally responsible for violations of established
international law even when their conduct was in compliance with, or mandated by, domestic law. n7 The United States
was also instrumental in ensuring that [*1117] this approach was subsequently ratified by the United Nations as binding
international law. n8
The United States is frequently criticized for its reluctance to ratify human rights agreements or to
accept the jurisdiction of international decision-making bodies. n9 However--with the exception of
a few voices, such as that of Senator Jesse Helms--the U.S. government does not generally justify its actions with
the argument that sovereignty permits the violation of basic human rights. n10 Instead, it typically responds that it
does not need to bind itself to international human rights instruments because the U.S.
legal system provides not only full justice but more protection than international law. n11
The United States' failure to comply with the most fundamental tenets of international law
with respect to many people and peoples under its jurisdiction is not merely a result of its
failure to ratify human rights conventions or participate in international institutions.
Even when the U nited S tates becomes a party to multilateral treaties or acknowledges
relevant customary law, U.S. courts frequently refuse to enforce international law ,
particularly when it is violated by congressional or executive action. Instead of
recognizing that domestic courts are the most important forum for the
enforcement of international law n12 or [*1118] taking seriously the Constitution's mandate that treaties are
part of the supreme law of the land, n13 federal courts have created a vast array of judicial
doctrines that render international law nearly meaningless within U.S.
jurisprudence.
These self-imposed judicial limitations include the declaration of some treaties or treaty provisions as "non-self-executing"
and the consequent refusal to enforce them in the absence of enabling legislation; n14 the "last-in-time" rule under which
later-enacted federal laws are enforced even if they put the United States squarely in violation of its treaty obligations; n15
the "political question doctrine" under which certain issues are declared "non-justiciable" because they address subjects
delegated to Congress or the Executive; n16 the "act of state" doctrine under which courts refrain from judging the actions
of other sovereigns, n17 and the refusal to allow prosecution of actions against the U.S. government on grounds of
sovereign immunity. n18 The combined effect of these doctrines is that U.S. courts are not
effective fora for the redress of violations of international [*1119] law; thus, the
United States violates a fundamental principle of c ustomary i nternational l aw, articulated in
Article 27 of the Vienna Convention on the Law of Treaties, that a "party may not invoke the provisions of
its internal law as justification for its failure to perform a treaty." n19
1ac economic rights
Advantage 2: Economic Rights
America’s rejection of economic rights entrenches domestic and global
income inequality --- that demoralizes populations, fomenting instability
Stark 15 [Barbara Stark, Professor of Law and John DeWitt Gregory Research Scholar, Maurice A. Dean School of
Law, Hofstra University, Fall, 2015, “HOW THE AGE OF RIGHTS BECAME THE NEW GILDED AGE: FROM
INTERNATIONAL ANTIDISCRIMINATION LAW TO GLOBAL INEQUALITY,” 47 Colum. Human Rights L. Rev. 151,
Columbia Human Rights Law Review, lexis]
The scope of international human rights law differs from that of domestic civil rights law both geographically and
substantively. Geographically, international human rights have been adopted by countries all over the world.
Substantively, as discussed above, international human rights include economic and social rights
as well as civil and political rights. As described in section A., below, the geographical scope of international
human rights made them indispensable to a postwar United States eager to establish itself as a world power. To assure the
rest of the world of its commitment to international human rights, the U.S. federal government--for the first time since
Reconstruction--stood up to the southern states and sent federal troops to Little Rock to uphold the international norm
against racial discrimination. n71
However, as explained in section B., below, because
of our long-standing antipathy toward
economic rights , the version of "international human rights" promoted by the United
States has never included economic rights. As a result, economic rights have been increasingly
marginalized internationally, especially since the United States emerged as the sole
superpower. By rejecting economic rights, the United States has effectively cut off
international human rights law at the knees. This Part concludes with a caveat on economic
rights, which were never as powerful as their proponents had hoped, nor as radical as their detractors had feared.
A. Human Rights Versus States Rights
After World War II, the United States proclaimed its commitment to human rights. But persistent segregation in the South
and the denial of basic civil and political rights to American Blacks undermined these claims. The Soviets exploited
American racism, broadcasting over 1,400 photographs of the American civil rights struggle to an appalled world. n72 As
Vicki Goldberg describes the Soviet campaign: "Those pictures of dogs and fire hoses were published in Europe, Africa,
India, Japan. Photographs were especially powerful in countries where large parts of the population could not read." n73
As legal historian Mary Dudziak has explained:
At a time when the United States hoped to reshape the postwar world in its own image, the international attention given to
racial segregation was troublesome and embarrassing . . . . Accordingly, efforts to promote civil rights in the United States
were consistent with, and important to, the more central U.S. mission of fighting world communism. n74
As set out in a Justice Department's amicus brief in Brown v. Board of Education, n75 desegregation was a Cold War
imperative. n76
While the executive branch was concerned about the international reaction to domestic practices, n77 Congress was
concerned about the domestic reaction to international lawmaking. An excerpt from the debate in the U.S. Senate Foreign
Relations Subcommittee on the Genocide Convention reveals both Congress' general distrust of international human
rights law and its more specific concern about the possible impact of that law on domestic civil rights:
The traditional concept of international law was that of the relation of states to each other--as Hamilton put it, the relation
of sovereign to sovereign. A determined effort is now being made, following the Nuremberg Trials, to change that concept
to the relations of states and individuals in the states, thereby imposing individual liability for international law and
creating unknown individual rights . . . .
If there is to be a succession of treaties from the United Nations dealing with domestic questions, are we ready to
surrender the power of the States over such matters to the Federal Government? . . . The report of the Civil Rights
Committee appointed by the President, after considering the division of power over civil rights between the Federal
Government and the States, in two places refers to the added power which may be given to Congress in the field of civil
rights if the human rights treaty is ratified and approved. n78
Many in Congress were emphatically not "ready to surrender the power of the States over [civil rights] to the Federal
Government"--and certainly not to the United Nations. They supported Senator Bricker's proposed amendment to the
United States Constitution, which would require an Act of Congress before any human rights treaty could become law in
the United States. n79 The Bricker Amendment was narrowly defeated by "vigorous lobbying by the Eisenhower
administration and its concomitant undertaking . . . not to adhere to human rights treaties." n80 Even as international
antidiscrimination norms compelled the federal government to send the National Guard to Little Rock n81--and, later, to
enact the Civil Rights Acts of 1964 n82 and 1968, n83 and the Voting Rights Act of 1965 n84--conservatives in Congress
were able to keep international human rights from becoming domestic law. n85 The United States refused to even ratify
the Civil Covenant until the end of the Cold War. n86
The federal government, which had allowed the Fourteenth Amendment to be put on hold by the Supreme Court decisions
in The Slaughter-House Cases n87 and The Civil Rights Cases, n88 finally stood up to Jim Crow. n89 It had no choice
under international human rights law, which unequivocally rejected racial discrimination.
B. Human Rights Versus Civil Rights
1. Not Here
Many in the civil rights movement understood that economic rights were necessary for
racial equality. Martin Luther King, Jr., for example, drafted an "economic and social Bill of
Rights," which included "the right . . . to a decent job, the right to a minimum income . . .
the right of a decent house and the free choice of neighborhood,. . . the right to an adequate education . . . the
right to the full benefits of modern science in health care." n90 Malcolm X explicitly linked the struggles of
American Blacks to the struggles of once-colonized peoples in Africa. n91 Many labor leaders, intellectuals, and
progressives urged the United States to recognize the full panoply of international human rights, including economic and
social rights. n92
These individuals were ruthlessly persecuted and blacklisted as "communists" by Senator
Joseph McCarthy and his followers. n93 In 1960, for example, Fred Koch, a founder of the John Birch Society, n94
published a pamphlet called A Business Man Looks at Communism, in which he wrote: "The colored man looms large in
the Communist plan to take over America." n95 Before McCarthy became an embarrassment, his blacklists and purges
had gutted the American left. n96 Disillusionment with the Soviet Union finished the job. n97 As David Richard observed
almost thirty years ago, "[u]nfortunately, the [socialist and Marxist perspectives on political philosophy]
have traditionally been excluded from serious political discussion in this country. This
lacuna, exacerbated by recurrent red-baiting, deprives us of serious discussion of the full range of
democratic political alternatives on the left." n98 Economic rights were fatally
weakened , with grave consequences for the United States and the world. n99
2. Not Anywhere
There was no need for economic rights in the American conception of human rights; free
markets and economic development would assure prosperity for all. n100 As Elizabeth
Mandeville explains:
[Following World War II, there were] two new grand efforts in international cooperation and relations--the human rights
movement, which sought to assure that these political and civil rights were globally afforded and protected, and the
development movement, which sought to create standards of living and institutions of support in the development world
to foster economies (and thus societies) in which these freedoms could be guaranteed. n101
Those who met at Bretton Woods in 1944 established the Bretton Woods Institutions to finance reconstruction in Europe
after World War II. In 1960, the International Development Association ("IDA") was established within the World Bank to
focus on the needs of the poorest states. n102 By promoting economic growth through trade, the assumption was that
poverty and inequality would be reduced and eventually eliminated. n103 This approach became known as the
Washington Consensus. n104 As Kerry Rittich explains, the Washington Consensus assumes "that the implementation of
efficiency enhancing rules is an uncontentious goal, that everyone stands to gain from free trade, that property and
contract rights are the paramount legal entitlements, and that rule-based regimes 'level the playing field' and ensure
fairness among otherwise unequal parties." n105
"Free trade," i.e., the elimination of tariffs, quotas and other barriers to trade, is a major component of the
Washington Consensus. n106 However, as Joseph Stiglitz points out, even when it makes "the
country as a whole better off, it results in some groups being worse off." n107 It has also been
argued that free trade benefits developed states at the expense of developing states. n108
The rules for world trade are established through periodic negotiations or "rounds" of talks among World Trade
Organization ("WTO") members, whose agendas are set by the wealthy industrialized states. For instance, the Uruguay
Round promised a "Grand Bargain" in which the less developed countries ("LDCs") would accept new rules on intellectual
property, investments, and services in exchange for a reduction of agricultural subsidies and textiles quotas in the
industrialized states. n109 However, while the Grand Bargain benefited the industrialized states, poor countries located in
sub-Saharan Africa lost $ 1.2 billion. n110 Industrialized countries made no concessions on agricultural subsidies and left
textile quotas in place for ten years. n111 The United States opened its markets to African cotton producers in 2005, n112
but the United States is not a major cotton importer. n113 Instead, cotton subsidies make the United States the world's
largest cotton exporter and effectively make competition impossible for the developing states. n114
In a study sponsored by Oxfam International, Kevin Watkins and Penny Fowler state that the WTO Member States'
elimination of subsidies would be the most effective and far-reaching measure to improve human welfare in the
developing world. As they explained:
If Africa, East Asia, South Asia, and Latin America were each to increase their share of
world exports by one per cent the resulting gains in income could lift 128 million people
out of poverty . . . . If the nations of the WTO were to adopt one and only one human welfare measure, elimination of
[subsidies in trade barriers] should be the measure. n115
"[r]ich countries have cost poor countries three times
more in trade restrictions than they give in total development aid ." n116
Indeed, according to Stiglitz,
Five years after the WTO's Uruguay Round, protesters disrupted the next round of negotiations, which were scheduled to
begin Seattle in 1999. Following the debacle of the "Battle in Seattle," the WTO convened in a more remote location, Doha,
Qatar, to avoid large protests. n117 Although the Doha Round was touted as a "development round," again, there were few
real concessions to the developing states. n118
Andrew Guzman and Chantal Thomas question how effectively the WTO could support the developing states and their
people, even if that were its objective. n119 As Olivier De Schutter, the UN Special Rapporteur on the Right to Food, noted
in 2011, "the WTO continues to pursue the outdated goal of increasing trade for its own sake rather than encouraging
more trade only insofar as it increases human wellbeing. It therefore treats food security policies as an unwelcome
deviation from this path." n120 By 2011, the financial crisis in the United States had become a food crisis in much of the
world. De Schutter addressed the WTO a month before a key summit:
Trade did not feed the hungry when food was cheap and abundant, and is even less able to do so now that prices are skyhigh. Global food imports shall be worth 1.3 trillion USD in 2011, and the food import bills of the least developed countries
have soared by over a third over the last year. The G20 has acknowledged that excessive reliance on food imports has left
people in developing countries increasingly vulnerable to price shocks and food shortages . . . . The WTO must now do the
same. n121
He was ignored.
The Washington Consensus promised that free markets and free trade would bring
wealth and prosperity. And they have--but mostly for investment banks and hedge funds.
Goldman Sachs, for example, reported that its profits--$ 1.93 billion--doubled in the second quarter of
2013. n122 As explained in Part III, there is more global wealth than ever, but most of it
is owned by the already wealthy .
A few years later, in 1974, the Group of 77 drafted the UN Declaration on the Establishment of a New International
Economic Order (NIEO). n129 The NIEO affirmed the rights of the former colonized states to nationalize foreign-owned
companies. n130 Most of the developed states, however, viewed the NIEO as confiscatory, n131 and rejected it. n132 This
reflected the growing clout of the United States, and its rejection of socialism, which it persisted in conflating with
economic rights. n133
As Upendra Baxi explains:
[T]he paradigm of the Universal Declaration of Human Rights is being steadily
supplanted by a trade-related, market-friendly, human rights paradigm . . . . [This]
insists . . . upon the promotion and protection of the collective rights of global capital in
ways that 'justify' corporate well-being and dignity over that of human persons. n134
Robert Howse, focusing on the West, is less critical: "[B]y the end of the Cold War, the old struggle between right and left
over the governance of the economy and the redistribution of wealth within the advanced liberal democracies had yielded
to a new pro-market consensus." n135
III. ECONOMIC RIGHTS AND GROWING INEQUALITY
The Washington Consensus promised that globalization and free markets would improve human well-being where badlymanaged, bureaucratic, or corrupt social welfare schemes had failed. This seemed plausible, if not entirely convincing,
until 2008. This Part first describes how the United States' economic recession became a global
recession. It then explores the relationship between the global recession, ongoing in most of the
world (and even for many in the United States), and the extreme, unprecedented global
inequality described by scholars like Piketty. While the relationship between the recession and
inequality is complex, unregulated, globalized financial markets exacerbate both. Part III
concludes by describing some post-recession responses by different states, including those overwhelmed by refugees and
those crippled by "austerity," and by non-state actors, such as ISIS, eager to exploit growing instability.
A. The Great Recession
1. Made in America
In 2007, the subprime mortgage market collapsed in the United States. Because lenders, such as Countrywide, made their
money from the fees generated by transactions, they had been encouraging unqualified buyers to assume mortgage
obligations that they would never be able to pay off. n136 Subprime lending was not that risky, it was thought, as long as
the residential real estate market remained strong and housing costs continued to grow. By taking out low interest
mortgage equity loans that enabled them to spend despite stagnant income, homeowners also invested in the bubble. n137
The subprime mortgages themselves were sold to investment firms and repackaged. They were sliced and diced and
rebundled into derivatives, complex securities created by investment banks and hedge funds. Most of these "innovative"
new instruments were unregulated and there was no legal obligation to secure them. When they failed, accordingly, there
were no reserves backing them. Even those that were regulated were highly leveraged. Investors were allowed to take out
100 percent mortgages--i.e., they had no equity in their homes. n138 Ratings agencies, such as Standard & Poors, whose
fees were paid by the investment banks, still gave them triple A ratings. n139 Government regulators, like everyone else,
were unconcerned.
Then the housing bubble burst and the entire market tumbled. The now-underwater mortgages, the "toxic assets," were
impossible to isolate because no one knew how to unbundle the complex new derivatives. So the bottom fell out, and oncevenerable investment firms like Bear Sterns and Lehman Brothers collapsed. Markets panicked, triggering a
global recession.
2. The Global Recession
As Stiglitz explains in Freefall, n140 the
U nited S tates economy constitutes such a large proportion
of the global economy that when it dives, it takes the rest of the world with it. Accordingly,
the U nited S tates exported its recession because it had already exported its philosophy of
deregulation. n141 One quarter of United States mortgages were held by foreign banks. n142 The
Great Recession spread like wildfire because globalization had already eliminated the barriers that might have slowed it.
n143
Those in low-income countries were especially vulnerable to the Great Recession. n144 They
were quickly hit by the collapse in global demand. n145 Remittances--which dwarf foreign aid-from the United States and Europe dwindled. n146 The crisis hit especially hard because "structural
adjustment programs" ("SAPs"), foisted on developing states by the IMF, had already
weakened social safety nets. n147
Because of SAPs, and other initiatives n148 promoted by the Washington Consensus, it is increasingly left to private aid
groups to run the food banks, clinics, and schools in poor countries throughout the world. Like international
human rights advocates, these groups recognize the importance of meeting basic human
needs. Unlike such advocates, however, some of these groups explicitly reject
international antidiscrimination norms. Rather, they espouse ideologies grounded in religious or gender
discrimination, or discrimination on the basis of sexual orientation. n149 Hamas, for example, has won the hearts and
minds of the Palestinians in Gaza by feeding, nursing, and educating people neglected by their government for the past
twenty years. n150
B. Extreme Inequality
This section first sets out the parameters of the stunning inequality--in which the top 1% increasingly distances itself from
the bottom 99%--with which we live. This growing inequality applies to both income and wealth. n151
Second, this section briefly suggests why this growing economic gap matters, in terms of quality of life--and for those
closer to the bottom than the top, for life itself. Increasing inequality, moreover, results in decreasing mobility; those at
the bottom are likely to stay there. This section concludes by returning to the problem of pervasive gender discrimination
introduced in Part I., n152 used as an example in Part II., n153 and returned to here to illustrate the impact of growing
inequality.
1. Growing Gaps in Income and Wealth
In the United States, according to a recent study by the Pew Research Center, "the medium net worth of upper income
families reached $ 639,400 in 2014, nearly seven times as much as those in the middle, and nearly 70 times the level of
those at the bottom of the income ladder." n154 While the rich are getting richer, the poor are getter poorer. Another
recent study by Emmanuel Saez and Gabriel Zuclu-nan showed that "[t]he rise in wealth inequality is almost entirely due
to the rise of the top 0.1 percent wealth share, from 7 percent in 1979 to 22 percent in 2012." n155 At the same time, "[a]
poor household actually had a higher median net worth 30 years ago ($ 11,400 in 1983) than it counted last year ($
9,300)." n156
The quality of life for Americans in the bottom 90% is rapidly getting worse. According to a
2013 study by the Institute of Medicine and the National Research Council, compared to 16 other developed countries,
"American men ranked last in life expectancy . . . and American women ranked second to last." n157 Death before age 50
accounted for two-thirds of the difference for men, and one-third of the difference for women. n158 The study showed that
"[y]ounger Americans die earlier and live in poorer health than their counterparts in other developed countries, with far
higher rates of death from guns, car accidents and drug addiction." n159 Reversing historic trends, lifespans for
uneducated whites are decreasing, with "the steepest declines . . . for white women without a high school diploma, who
lost five years of life between 1990 and 2008." n160
The global data is more complicated. Economists argue about the merits of measuring absolute poverty--those living
below a particular baseline, such as $ 1.25 per day--versus relative poverty--those living below the national or regional
mean. n161 This is reflected in the range of views on the parameters of global inequality. The most recent report from the
World Bank, for example, shows a broad reduction in extreme poverty. n162 While there has been a small drop in the
number of people living below $ 1 per day, however, "[t]he number of people living between $ 1.25 and $ 2 has almost
doubled from 648 million to 1.18 billion between 1981 and 2008." n163 As World Bank economists Shaohua Chen and
Martin Ravallion put it, there are "more relatively poor people in a less absolutely-poor world. n164
Branko Milanovic, senior scholar at the Luxembourg Income Study Center, argues that, "[f]rom a global perspective, two
decades of globalization have produced what 'seems like a fairly benign outcome.' If you look at the world as a single
nation, income inequality has, in fact, declined. Income in the middle has grown faster than at the top." n165 Princeton
economist Angus Deaton counters: "[f]or every country with a catch-up story there has been a country with a left-behind
story." n166
While extreme poverty has been reduced globally, income inequality within countries has increased almost everywhere.
n167 The United States appears to be an unlikely exception. Although Piketty recently noted that, in terms of salary and
inequality in the United States is "probably higher than in any
other society at any time in the past, anywhere in the world ," n168 in fact, inequality
compensation packages,
has actually decreased slightly since the Great Recession. n169 As George Washington University research professor Steve
Rose has shown, the income of the top 1 percent has not yet returned to its 2007 peak. n170 As commentator David
Leonhardt observes, this suggests that, "Washington's recent efforts to fight inequality--as imperfect and restrained as
they've been--have made a bigger difference than many people realize." n171 This is not to say that the 1 percent is hurting.
As set out in the Equilar 100 C.E.O. Pay Study, conducted for the New York Times, the median compensation of a chief
executive in 2013 was $ 13.9 million, up 9 percent from 2012. n172 Piketty attributes two-thirds of the
increase in American inequality over the past forty years to the growth of such
"supersalaries." n173
Half of the decline in the extreme poverty rate, furthermore, is attributable to China. n174 Excluding
China, the number of people living below $ 1.25 a day is no lower in 2008 than it was in 1981. n175 But growth in China is
slowing. n176 Nor do the Bank reports take into account the costs of that growth, including environmental degradation.
n177 According to The Lancet, China's outdoor pollution contributed to 1.2 million premature deaths in 2010, or 40
percent of the worldwide total. n178 An American science journal reported in July 2013 that life expectancy in northern
China had fallen by five years because of air pollution. n179
Investment banks, hedge funds, currency traders, and the superrich, meanwhile, continue to
exploit ad hoc arrangements. The G-20 has resisted the "global economic governance"
called for by the U.N. Commission of Experts on Reforms of the International Monetary and Financial System. n180 In
2009, Miguel d'Escoto, then President of the United Nations General Assembly, called for "new global institutions,
authorities and advisory boards." n181 He was ignored." n182
2. So What?
unprecedented extreme inequality described above is dangerous . For
individuals at the bottom, inequality is often fatal : whether they are killed by the
Ebola virus in West Africa, in hospitals without adequate resources or training to care for patients, n183 or dying
of diabetes on Rikers Island . n184 Infant mortality is thirteen times greater for babies born in lowThe
income countries than for those born in high-income countries, n185 and life expectancy is seventeen years shorter (62
versus 79). n186
Extreme inequality is demoralizing, especially when there is little hope of
improvement for the worst off. Janet Yellen, chair of the Federal Reserve, warned that the relatively
few
opportunities Americans have to improve their economic status may be becoming even scarcer, noting that "it
is appropriate to ask whether this trend is compatible with values rooted in our nation's history, among them the high
value Americans have traditionally placed on equality of opportunity. . . . [M]obility is lower in the United States than in
most other advanced countries." n187
Blacks have been hit especially hard. According to a recent study by Janelle Jones and John Schmitt from the Center for
Economic and Policy Research, the jobless rate for recent black college graduates last year was 12.4 percent versus 4.9
percent for whites." n188
A demoralized citizenry is destabilizing . As FDR explained in his 1944 State of the Union Address,
"[p]eople who are hungry and out of a job are the stuff of which dictatorships are
made. " n189 Now they join the workers paid minimum wage by big box stores and fast
food chains. n190 They are the market--and the bottom-rung dealers--for the heroin
flooding New England. n191 They are the troops the United States has been sending to Afghanistan and Iraq for
the past thirteen years. n192 Some of them join the growing list of unarmed black men killed by
white police, triggering massive protests throughout the U nited S tates. n193
The destabilizing impact of extreme inequality is not limited to the United States, nor to any
state's internal affairs. As Chinese historian Zhang Lifan points out, extreme inequality also poses
risks to foreign relations : "[T]he political establishment needs the public to turn
their rage toward foreign countries" because anger over the widening gap between rich and poor in China has
reached 'crisis levels." n194 After the attack on Charlie Hebdo and the kosher market in Paris and the discovery of terrorist
cells in Belgium, the European Parliament convened an emergency meeting. n195 They sought to coordinate efforts to
address the :threat posed by increasingly alienated Muslim youth, 5000 of whom are estimated to have joined ISIS or Al
At current levels , commentator Roger Cohen suggests,
inequality is destabilizing the entire world . n196
Qaeda in the Arabian Peninsula (AQAP).
Scenario 1 is the economy
Inequality puts damaging strains on all aspects of the economy – strong
consumer spending is necessary to avert slow growth
Bar-Yam ’17 – Complex Systems scientist studying social and economic systems, president of the
New England Complex Systems Institute (Yaneer, “Steering the economy toward growth”, 11/7/17, My
Student Voices, https://mystudentvoices.com/steering-the-economy-toward-growth8f208a8b8a7b)//CW
The Federal Reserve is responsible for regulating the economy so that there isn’t too
much inflation or high unemployment. The “Fed” primarily relies upon a single control
valve—adjusting interest rates charged to banks. However, in recent years, this solution has
proven to have very little impact, with many years of high unemployment following the
financial crisis. Even now, there is weak economic growth and high underemployment.
In the New England Complex Systems Institute’s latest paper [1], we study economic activity through the
flow of money. We discovered it is not enough to consider the overall activity of the
economy. Instead, we must consider two dominant flows, highlighted in red in Fig. 1. On the left is
the Labor loop. Workers receive wages and use them to buy products and services. The
second flow on the right is the Capital loop. Investors, particularly wealthy individuals,
invest in new equipment and facilities to produce goods and services, and they receive
returns on their investments. As the economy grows, the flow in these loops increases. However, how much
each of them increases is important because they have to be balanced against each other.
Right away, we see that a single control mechanism cannot both lead to growth and
achieve balance between these two flows. Relying on only one control is like driving a car with only a gas
pedal and brakes, without a steering wheel.
Figure 2 shows a plot of the economy between 1960 and 2015. The
two axes are consumption and
investment. We see that if there was a balance between the two flows, the trajectory
would go straight to the upper right, causing both wage earners and investors to benefit
from rapid growth. However, what we see is that the economy has zigzagged back and forth
for decades. Each red dot indicates a recession or financial crisis. The Fed has repeatedly forced
the economy back on track by lowering interest rates, but like a car with no steering, we keep running back into the
guardrail beyond which the economy does not work.
How did we get here? Our analysis shows there have been two major regimes since 1960.
Before 1980 too much money was being injected into the Labor loop. Consumers had
more demand than investors could supply, and inflation was on the rise. After 1980, we
entered a new regime that favored investors. The change in regime was likely due to tax changes
implemented during the Reagan presidency, cutting taxes on investments. We see that this change was a
good idea, but it went too far and has remained in place for too long.
The continuing economic imbalance has had major consequences, including
limited economic growth and massive consumer debt. Before 1980, consumers saved
money as they didn’t have enough goods and services to buy. After 1980, consumer debt increased (See Fig. 3). The
opposite is true about investors who borrowed before 1980 and saved afterwards, as there was not enough opportunities
to invest in. Note that consumer debt and investor savings are now in the trillions of dollars.
We see that the dramatic rise of inequality in recent decades is a direct impediment
to economic growth . With severe limits on consumer demand, investors don’t have anything to
invest their savings in and are unable to gain further returns.
A single control mechanism is insufficient for restoring balance to the economy.
Furthermore, the usefulness of the Fed’s preferred mechanism has been exhausted.
Figure 4 shows interest rates and inflation rates since 1960. Today interest rates are basically at zero, not
because of the financial crisis directly, but because of the ongoing need to promote
economic activity in the face of deepening debt. Rates can’t be lowered any further. Special methods,
known as quantitative easing, used in the financial crisis may not be reliable over the long term.
What happens if we keep doing the same thing? Figure 5 is a zoomed in version of Figure 2, focusing on the trajectory of
the economy between 2007 and 2015. The
dramatic measures taken since the financial crisis
moved the economy back on course, but it is already starting to veer back to
the recession “guardrail.” If nothing is changed, the ineffective zigzagging from
recession to recession will continue or get worse.
To avert this future crisis, we need to start steering the economy in a more
constructive direction. The excess of money flowing into the Capital loop
should be diverted to the Labor loop. It doesn’t help to increase the uninvested
savings of the wealthy through more tax cuts. Reducing taxes for the low and middle income earners,
increasing wages and social benefits and relieving debt for Labor will fuel new consumption, allowing for increased
Alleviating the strain of inequality will restore balance to the
economy, leading to beneficial growth for everyone.
returns on investment.
This course correction should be done with careful guidance so that we don’t under- or
oversteer the economy. There are several possible levers for change, including tax reform,
consumer and student debt relief, minimum wage increases, and adjustments to
entitlement programs. A solution that will promote effective, persistent economic growth will reqiure careful
analysis of economic flows.
Slow growth causes international conflict – especially with Russia and china
Drezner 16 [Daniel, Professor of International Politics, Tufts; Nonresident Senior Fellow, Brookings. “Five Known
Unknowns about the Next Generation Global Political Economy.” Project on International Order and Strategy at
Brookings. May, http://www.anamnesis.info/sites/default/files/D_Drezner_2016.pdf]
The erosion of the trade and demographic drivers puts even more pressure on
technological innovation to be the engine of economic growth in the developed world. As one
McKinsey analysis concluded, “For economic growth to match its historical rates, virtually all of it must
come from increases in labor productivity .”78 Growth in labor productivity is
partially a function of capital investment, but mostly a function of technological
innovation. The key question is whether the pace of technological innovation will sustain
itself.¶ This remains a known unknown. The pace of innovation relative to global population has slowed
dramatically over the past fifty years.79 Consider that the developed world still relies on the same general purpose technologies of
modern society that were originally invented 50-100 years ago: the automobile, airplane, telephone, refrigerator, and computer. To be sure, all of these
technologies have improved in recent decades, in some cases dramatically. But nothing new has replaced them. And even these improvements have not necessarily
had dramatic systemic effects. For example, the average speed on a passenger aircraft has actually fallen since the introduction of the Boeing 707 in 1958, because
of the need to conserve fuel. For all of the talk of “disruptive innovations,” the effect of these disruptions on both the business world and aggregate economic
growth have been exaggerated.80¶ At present, many of the fields that seem promising for innovation—nanotechnology, green energy, and so forth—require
massive fixed investments. Only large institutions, like research universities, multinational corporations and government entities, can play in that kind of game.
Joseph Schumpeter warned that once large organizations became the primary engine of innovation, the pace of change would naturally slow down. Because large
organizations are inherently bureaucratic and conservative, they will be less able to imagine radical innovations.81 What if the “secular stagnation” debate is really
just a harbinger of a deeper debate about a return to pre-19th century growth levels?¶ An obvious counter to this argument is that the pace of technological
innovation in laptops, smart phones, tablets, and the Internet of things has accelerated. This is undeniably true—but the problem is that the gains in utility have
not been, strictly speaking, economic. Most of the important innovations that we think about with respect to the Internet—Facebook, Twitter, Wikipedia, YouTube
and so forth —are free technologies for consumers. As Tyler Cowen argues, “The big technological gains are coming in revenue-deficient sectors.”82 They generate
lots of enjoyment but little employment. The largest and most dynamic information technology firms, like Google and Apple, hire only a fraction of the people who
worked for General Motors in its heyday. At the same time, Internet-based content has eroded the financial viability of other parts of the economy. Contentproviding sectors—such as music, entertainment, and journalism—have suffered directly. The growth of “sharing economy” firms like Uber and Airbnb that
develop peer-to-peer markets are causing similar levels of creative disruption to the travel and tourism sectors.83 The rapid acceleration of automation is also
leading to debates about whether the “lump of labor” fallacy remains a fallacy—in other words, whether displaced workers will be able to find new employment.84¶
A slow-growth economic trajectory also creates policy problems that increase the
likelihood of even slower growth . Higher growth is a political palliative that makes
structural reforms easier . For example, Germany prides itself on the “Hartz reforms” to its labor markets last decade, and has
advocated similar policies for the rest of the Eurozone since the start of the 2008 financial crisis. But the Hartz reforms were accomplished during a global
In a low-growth world, other
economies will be understandably reluctant to engage in such reforms.¶ It is possible that concerns about
economic upswing, boosting German exports and cushioning the shortterm cost of the reforms themselves.
a radical growth slowdown are exaggerated. In 1987, Robert Solow famously said, “You can see the computer age everywhere but in the productivity statistics.”85 A
decade later, the late 1990s productivity surge was in full bloom. Economists are furiously debating whether the visible innovations in the information sector are
leading to productivity advances that are simply going undetected in the current productivity statistics.86 Google’s chief economist Hal Varian, echoing Solow from
a generation ago, asserts that “there is a lack of appreciation for what’s happening in Silicon Valley, because we don’t have a good way to measure it.”87 It is also
possible that current innovations will only lead to gains in labor productivity a decade from now. The OECD argues that the productivity problem resides in firms
far from the leading edge failing to adopt new technologies and systems.88 There are plenty of sectors, such as health or education, in which technological
But the possibility of a
technological slowdown is a significant “known unknown.” And if such a slowdown
occurs, it would have catastrophic effects on the public finances of the OECD
economies. Most of the developed world will have to support disproportionately large numbers of pensioners by 2036; slower-growing
economies will worsen the debt-to-GDP ratios of most of these economies, causing
further macroeconomic stresses—and, potentially, political unrest from increasingly
stringent budget constraints.89¶ 2. Are there hard constraints on the ability of the developing world to converge to developed-country
innovations can yield significant productivity gains. It would foolhardy to predict the end of radical innovations.¶
living standards?¶ One of the common predictions made for the next generation economy is that China will displace the United States as the world’s biggest
economy. This is a synecdoche of the deeper forecast that per capita incomes in developing countries will slowly converge towards the living standards of the
advance industrialized democracies. The OECD’s Looking to 2060 report is based on “a tendency of GDP per capita to converge across countries” even if that
convergence is slow-moving. The EIU’s long-term macroeconomic forecast predicts that China’s per capita income will approximate Japan’s by 2050.90 The
Carnegie Endowment’s World Order in 2050 report presumes that total factor productivity gains in the developing world will be significantly higher than countries
on the technological frontier. Looking at the previous twenty years of economic growth, Kemal Dervis posited that by 2030, “The rather stark division of the world
into ‘advanced’ and ‘poor’ economies that began with the industrial revolution will end, ceding to a much more differentiated and multipolar world economy.”91¶
Intuitively, this seems rational. The theory is that developing countries have lower incomes primarily because they are capital-deficient and because their
economies operate further away from technological frontier. The gains from physical and human capital investment in the developing world should be greater than
in the developed world. From Alexander Gerschenkron forward, development economists have presumed that there are some growth advantages to “economic
backwardness”92¶ This intuitive logic, however, is somewhat contradicted by the “middle income trap.” Barry Eichengreen, Donghyun Park, and Kwanho Shin
have argued in a series of papers that as an economy’s GDP per capita hits close to $10,000, and then again at $16,000, growth slowdowns commence.93 This
makes it very difficult for these economies to converge towards the per capita income levels of the advanced industrialized states. History bears this out. There is a
powerful correlation between a country’s GDP per capita in 1960 and that country’s per capita income in 2008. In fact, more countries that were middle income in
1960 had become relatively poorer than had joined the ranks of the rich economies. To be sure, there have been success stories, such as South Korea, Singapore,
and Israel. But other success stories, such as Greece, look increasingly fragile. Lant Prichett and Lawrence Summers conclude that “past performance is no
guarantee of future performance. Regression to the mean is the single most robust and empirical relevant fact about cross-national growth rates.”94¶ Post-2008
growth performance of the established and emerging markets matches this assessment. While most of the developing world experienced rapid growth in the
previous decade, the BRICS have run into roadblocks. Since the collapse of Lehman Brothers, these economies are looking less likely to converge with the
developed world. During the Great Recession, the non-Chinese BRICS—India, Russia, Brazil, and South Africa—have not seen their relative share of the global
economy increase at all.95 China’s growth has also slowed down dramatically over the past few years. Recent and massive outflows of capital suggests that the
Chinese economy is headed for a significant market correction. The collapse of commodity prices removed another source of economic growth in the developing
world. By 2015, the gap between developing country growth and developed country growth had narrowed to its lowest level in the 21st century.96¶ What explains
the middle income trap? Eichengreen, Park and Shin suggest that “slowdowns coincide with the point in the growth process where it is no longer possible to boost
productivity by shifting additional workers from agriculture to industry and where the gains from importing foreign technology diminish.”97 But that is insufficient
to explain why the slowdowns in growth have been so dramatic and widespread.¶ There are multiple candidate explanations. One argument, consistent with Paul
Krugman’s deconstruction of the previous East Asia “miracle,”98 is that much of this growth was based on unsustainable levels of ill-conceived capital investment.
Economies that allocate large shares of GDP to investment can generate high growth rates, particularly in capital-deficient countries. The sustainability of those
growth rates depends on whether the investments are productive or unproductive. For example, high levels of Soviet economic growth in the 1950s and 1960s
masked the degree to which this capital was misallocated. As Krugman noted, a lesser though similar phenomenon took place in the Asian tigers in the 1990s. It is
plausible that China has been experiencing the same illusory growth-from-bad-investment problem. Reports of overinvestment in infrastructure and “ghost cities”
are rampant; according to two Chinese government researchers, the country wasted an estimated $6.8 trillion in “ineffective investment” between 2009 and 2013
alone.99¶ A political explanation would be rooted in the fact that many emerging markets lack the political and institutional capabilities to sustain continued
growth. Daron Acemoğlu and James Robinson argue that modern economies are based on either “extractive institutions” or “inclusive institutions.”100
Governments based on extractive institutions can generate higher rates of growth than governments without any effective structures. It is not surprising, for
example, that post-Maoist Chinese economic growth has far outstripped Maoist-era rates of growth. Inclusive institutions are open to a wider array of citizens, and
therefore more democratic. Acemoğlu and Robinson argue that economies based on inclusive institutions will outperform those based on extractive institutions.
Inclusive institutions are less likely to be prone to corruption, more able to credibly commit to the rule of law, and more likely to invest in the necessary public
goods for broad-based economic growth. Similarly, Pritchett and Summers conclude that institutional quality has a powerful and long-lasting effect on economic
growth—and that “salient characteristics of China—high levels of state control and corruption along with high measures of authoritarian rule—make a
discontinuous decline in growth even more likely than general experience would suggest.”101¶ A more forward-looking explanation is that the changing nature of
manufacturing has badly disrupted the 20th century pathway for economic development. For decades, the principal blueprint for developing economies to become
developed was to specialize in industrial sectors where low-cost labor offered a comparative advantage. The resulting growth from export promotion would then
spill over into upstream and downstream sectors, creating new job-creating sectors. Globalization, however, has already generated tremendous productivity gains
in manufacturing—to the point where industrial sectors do not create the same amount of employment opportunities that they used to.102 Like agriculture in the
developed world, manufacturing has become so productive that it does not need that many workers. As a result, many developing economies suffer from what Dani
Rodrik labels “premature deindustrialization.” If Rodrik is correct, then going forward, manufacturing will fail to jump-start developing economies into higher
growth trajectories—and the political effects that have traditionally come with industrialization will also be stunted.103¶ Both the middle-income trap and the
regression to the mean observation are empirical observations about the past. There is no guaranteeing that these empirical regularities will hold for the future.
Indeed, China’s astonishing growth rate over the past 30 years is a direct contradiction of the regression to the mean phenomenon. It is possible that over time the
convergence hypothesis swamps the myriad explanations listed above for continued divergence. But in sketching out the next generation global economy, the
implications of whether regression to the mean will dominate the convergence hypothesis are massive. Looking at China and India alone, the gap in projections
between a continuation of past growth trends and regression to the mean is equivalent to $42 trillion—more than half of global economic output in 2015.104 This
a growth slowdown in
the developing world can have a feedback effect that makes more growth-friendly
reforms more difficult to accomplish. As Chinese economic growth has slowed, Chinese leader Xi
Jinping’s economic reform plans have stalled out in favor of more political repression.
Follows the recent playbook of Russian President Vladimir Putin, who has added diversionary war as another
distracting tactic from negative economic growth. Short-term steps towards political
repression will make politically risky steps towards economic reform that less palatable
in the future. Instead, the advanced developing economies seem set to double down on
strategies that yield less economic growth over time.¶ 3. Will geopolitical rivalries or technological innovation alter the
gap is significant enough to matter not just to China and India, but to the world economy.¶ As with the developed world,
patterns of economic interdependence?¶ Multiple scholars have observed a secular decline in interstate violence in recent decades.105 The Kantian triad of more
democracies, stronger multilateral institutions, and greater levels of cross-border trade is well known. In recent years, international relations theorists have
stressed that commercial interdependence is a bigger driver of this phenomenon than previously thought.106 The liberal logic is straightforward. The benefits of
cross-border exchange and economic interdependence act as a powerful brake on the utility of violence in international politics. The global supply chain and “just
in time” delivery systems have further imbricated national economies into the international system. This creates incentives for governments to preserve an open
economy even during times of crisis. The more that a country’s economy was enmeshed in the global supply chain, for example, the less likely it was to raise tariffs
after the 2008 financial crisis.107 Similarly, global financiers are strongly interested in minimizing political risk; historically, the financial sector has staunchly
opposed initiating the use of force in world politics.108 Even militarily powerful actors must be wary of alienating global capital.¶ Globalization therefore creates
powerful pressures on governments not to close off their economies through protectionism or military aggression. Interdependence can also tamp down conflicts
that would otherwise be likely to break out during a great power transition. Of the 15 times a rising power has emerged to challenge a ruling power between 1500
and 2000, war broke out 11 times.109 Despite these odds, China’s recent rise to great power status has elevated tensions without leading to anything approaching
war. It could be argued that the Sino-American economic relationship is so deep that it has tamped down the great power conflict that would otherwise have been
in full bloom over the past two decades. Instead, both China and the United States have taken pains to talk about the need for a new kind of great power
relationship. Interdependence can help to reduce the likelihood of an extreme event—such as a great power war—from taking place.¶ Will this be true for the next
generation economy as well? The two other legs of the Kantian triad—democratization and multilateralism—are facing their own problems in the wake of the 2008
financial crisis.110 Economic openness survived the negative shock of the 2008 financial crisis, which suggests that the logic of commercial liberalism will continue
But some international relations scholars doubt the power of
globalization’s pacifying effects, arguing that interdependence is not a powerful
constraint .111 Other analysts go further, arguing that globalization exacerbates financial volatility—which
in turn can lead to political instability and violence.112¶ A different counterargument is that the continued
growth of interdependence will stall out . Since 2008, for example, the growth in global
trade flows has been muted, and global capital flows are still considerably smaller than
they were in the pre-crisis era. In trade, this reflects a pre-crisis trend. Between 1950 and 2000, trade grew, on average, more than twice as
to hold with equal force going forward.
fast as global economic output. In the 2000s, however, trade only grew about 30 percent more than output.113 In 2012 and 2013, trade grew less than economic
output. The McKinsey Global Institute estimates that global flows as a percentage of output have fallen from 53 percent in 2007 to 39 percent in 2014.114
While the stock of interdependence remains high, the flow has slowed to a trickle. The Financial
Times has suggested that the global economy has hit “peak trade.”115¶ If economic growth continues to outstrip trade, then the
level of interdependence will slowly decline, thereby weakening the liberal constraint on
great power conflicts . And there are several reasons to posit why interdependence might
stall out. One possibility is due to innovations reducing the need for traded goods. For example, in the last decade, higher energy prices in the United States
triggered investments into conservation, alternative forms of energy, and unconventional sources of hydrocarbons. All of these steps reduced the U.S. demand for
imported energy. A future in which compact fusion engines are developed would further reduce the need for imported energy even more.116¶ A more radical
possibility is the development of technologies that reduce the need for physical trade across borders. Digital manufacturing will cause the relocation of production
facilities closer to end-user markets, shortening the global supply chain.117 An even more radical discontinuity would come from the wholesale diffusion of 3-D
printing. The ability of a single printer to produce multiple component parts of a larger manufactured good eliminates the need for a global supply chain. As
Richard Baldwin notes, “Supply chain unbundling is driven by a fundamental trade-off between the gains from specialization and the costs of dispersal. This would
be seriously undermined by radical advances in the direction of mass customization and 3D printing by sophisticated machines…To put it sharply, transmission of
data would substitute for transportation of goods.”118 As 3-D printing technology improves, the need for large economies to import anything other than raw
Geopolitical ambitions could reduce economic interdependence
even further.120 Russia and China have territorial and quasi-territorial ambitions beyond
their recognized borders, and the United States has attempted to counter what it sees as
revisionist behavior by both countries. In a low-growth world, it is possible that leaders of
either country would choose to prioritize their nationalist ambitions over economic
growth. More generally, it could be that the expectation of future gains from interdependence—
rather than existing levels of interdependence—constrains great power bellicosity.121 If
great powers expect that the future benefits of international trade and investment will
wane, then commercial constraints on revisionist behavior will lessen . All else equal,
this increases the likelihood of great power conflict going forward.
materials concomitantly declines.119¶
Declaring wealth a suspect class revitalizes campaign finance restrictions
and promotes progressive taxes
Gilman 14 [Michele Gilman. Professor of Law and Director, Civil Advocacy Clinic, Co-Director, Center on Applied
Feminism, University of Baltimore School of Law, B.A. 1990, Duke University; J.D. 1993, University of Michigan Law
School, “A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality,” Utah Law Review,
2014 Utah L. Rev. 389, lexis]
C. The Impacts of Economic Inequality
While conservatives and liberals largely agree
that income inequality is on the rise, n59 they
disagree over whether this is a bad thing. Liberals recognize that some level of economic
inequality is an integral part of capitalism but contend that current levels of inequality significantly higher than in other advanced, industrialized, democratic nations - are too extreme. n60 By contrast, for
conservatives, inequality is a necessary motivator for citizens to work hard, innovate, and
create wealth. n61 Yet, we are at the point at which the level of inequality is more than what is needed to maximize
output. n62 For most middle-income and low-wage jobs in our economy, effort and skill do not matter; workers are
instead motivated by fear of losing their jobs and becoming destitute. n63
In fact, higher American worker productivity has not led to wage gains for the middle class; only the top 10% saw their
incomes benefit from increases in worker productivity. n64 It does not appear that the megarich need additional pay as
[*399] motivation to work hard, and moreover, many executive payment methods are economically inefficient, such as
stock options that raise executive pay regardless of performance. n65 For instance, while amassing huge fortunes prior to
the 2008 economic downturn (largely in the financial industry and as corporate executives), the top .1% arguably was not
contributing to society's bottom line through technological, scientific, or other innovations that improve life for others.
n66 Rather, in the realm of finance, "it was not contribution to society that determined relative pay, but something else:
bankers received large rewards, though their contribution to society - and even to their firms - had been negative." n67 In
short, inequality is not providing the right kind of incentives, and it is skewing the market
towards the top.
Economic inequality injures the economy through "lower productivity, lower efficiency,
lower growth, [and] more instability," n68 as the top 1% gain a larger slice of the pie without increasing the
size of the pie. By contrast, across nations, economic equality is associated with longer and more sustained growth. n69
Income inequality played a role in the 2008 collapse of the market, as middle-class Americans relied on debt to stay afloat.
n70 Large gaps between the rich and the poor are also associated with a wide array of social dysfunctions, such as higher
rates of infant mortality and crime, less educational attainment, and lower life [*400] expectancy. n71 In turn, these social
ills result in lost productivity and increased costs "associated with containing the violence, healing the sick, and fixing the
dysfunction." n72 In addition, inequality undermines America's self-identity and moral purpose, which are based on ideals
of fair play and equal opportunity for all. n73 Inequality leads to attacks on immigration and resistance to international
trade, both of which might otherwise alleviate some inequality. n74 Meanwhile, the wealthy become more
isolated in gated communities and less willing to spend money on common needs, while
public investments drop in things such as infrastructure , basic research , and education. n75
These underinvestments lead to greater inequality, creating a downward
spiral, as faith in government erodes .
Given the downsides of inequality, why have the legislative and executive branches
enacted policies that favor the interests of business and the wealthy over the average
American? There are multiple explanations, most of which converge on growing political polarization and the role of
money in politics. The rise of political polarization and partisanship tracks the rise of income inequality. n76 Republicans
favor policies that foster inequality, and they have not only held control through much of this time period, but their
dominance has also pushed Democrats rightward. n77 Nevertheless, the top 1% have done staggeringly well through both
Republican and Democratic administrations, and neither party is immune to the need to raise money to obtain and stay in
power. n78 Moreover, studies show that politicians of both parties are most responsive to affluent voters and ignore the
opinions of citizens at the bottom of the income ladder. n79 Through lobbying and campaign
contributions, business interests and wealthy individuals [*401] have been able to secure the
policies described above, such as unlimited corporate compensation, government
subsidies, and deregulation. Yet, when such policies and practices that contribute to
economic inequality are challenged in the courts, the Supreme Court generally upholds
them. Accordingly, the next Part places the Supreme Court within this narrative of the
government's role in creating and maintaining economic inequality. The judiciary is
the missing piece of the inequality puzzle .
II. The Supreme Court and Economic Inequality
The major causes of economic inequality all intersect with law and, specifically, with
Supreme Court doctrine . This Part traces how the Supreme Court has contributed to
economic inequality by denying social or economic rights for people at the bottom of the
income scale; favoring the interests of business over consumers and employees; refusing to recognize a constitutional
right to education; and allowing money to drive the electoral system.
A. Redistribution and the Social Safety Net
The Court adheres to three core principles when it directly confronts issues of class. First,
the Constitution does not create or guarantee social or economic rights. n80 Second, the
poor are not a suspect class, and thus, discrimination on the basis of wealth does not
warrant heightened review. n81 Third, laws that impact the poor are a type of economic
legislation subject to rational basis review. n82 As a result of these interlocking principles, poor
people generally must secure any governmental assistance through the political process ,
yet they often fare badly in the legislative realm due to their lack of political influence and a societal
distaste for and distrust of the poor. "The more generous a welfare state, the more people are protected from the economic
insecurity and instability of markets." n83 Unfortunately for the poor in America, our welfare state is less
egalitarian than in other developed nations. n84 As political scientists have shown, Congress is entirely
unresponsive to the political preferences of the poor. As a result of the recent [*402] recession, many formerly middleclass people are falling into poverty, and the poverty rate is about to surpass rates not seen since the 1960s. n85 The OWS
it results
from structural features of the economy that are reinforced or ignored by
government policies . However, in the ideology of the Supreme Court, government is not responsible for
movement argues that poverty is not inevitable; it cannot be blamed solely on personal failings; and
creating poverty and, thus, bears no obligation to solve it. n86
1. The Constitution Does Not Create Social and Economic Rights
The core principle of the Court's class doctrine is that
the Constitution does not ensure any
minimum level of entitlement or standard of living. No one is constitutionally
entitled to food, housing, medical care, or education . n87 As the Court has stated, "the
Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to
secure life, liberty, or property interests of which the government itself may not deprive the individual." n88 In this view,
the Constitution creates negative, rather than positive, rights, meaning that the Constitution protects against government
interference of rights, but it does not create any affirmative obligations on the part of government. n89 Consistent with
these principles, the Court ruled in DeShaney v. Winnebego County Department of Social Services n90 that the
Constitution is not implicated when the state Department of Social Services turns a child over to an abusive father after
repeated warnings of abuse, and the child is injured as a result. n91 Nor is the Constitution violated, according to Town of
Castle Rock v. Gonzales, n92 when a police department fails to enforce a domestic violence protective order, thus leading
to the murder of a woman's three children by her [*403] estranged husband. n93 Notably, both children in the child
welfare system and domestic violence victims are disproportionately poor. n94 In these cases, the Court views the
provision of government services as a privilege, in which citizens must take what they can get.
This narrative of the negative Constitution is widely accepted, but it is neither natural nor inevitable. n95 To begin with,
the idea that the Constitution does not create affirmative rights is not textually accurate.
There are many provisions of the Constitution that secure affirmative rights, such as the
right to a trial by jury or the right to equal protection, which requires the "federal government to
protect its citizens in the face of the states' failure to do so." n96 Moreover, the action versus inaction
dichotomy is a false one. n97 As the DeShaney and Gonzeles cases show, government can harm as
much by inaction as by action, and this distinction "does not take into account
government's pervasive influence through regulatory action and inaction, its displacement of
private remedies, and indeed, its monopoly over some avenues of relief." n98 While property and contract may
look at first blush like private market rights, in reality, the government creates and protects
those rights [*404] by providing enforcement mechanisms. n99 Thus, a governmental decision not to
act equals ratification of political choices.
Unlike the United States, the constitutions of many other countries guarantee social and economic rights. n100 While
critics charge that such rights are impossible and inappropriate for the judiciary to enforce, n101 there are
examples where courts have held such rights justiciable. For instance, in South Africa, the
country's highest court ruled that the government is obliged to take reasonable measures
within its available resources to achieve progressive realization of the right to housing.
n102 This decision preserved an important role for the judiciary in protecting vulnerable populations, while respecting the
policymaking role of the political branches.
Our own history reveals a greater commitment to social and economic rights than
prevailing doctrine admits. n103 In the 1960s and 1970s, in particular, there was a vibrant welfare rights
movement and a receptive Court that appeared poised to recognize social and economic rights. n104 The groundwork was
laid in a series of cases in which the Court ruled that indigence would not limit access to judicial or electoral processes,
which are fundamental aspects of citizenship. n105 The Court has also ruled that states cannot limit welfare benefits to
new residents without violating a constitutional right to travel, and it reaffirmed this principle postwelfare reform. n106
While these right-to-travel cases are a rare win for the poor, it is notable [*405] that these cases are premised on a view of
welfare as a market that should remain unfettered so that the poor can strike their best deal for survival.
The highwater mark of constitutional protection for the poor came in the case of Goldberg v. Kelly, n107 in which the
Court held that welfare benefits were a form of property entitled to due process protections. n108 Justice Brennan
addressed the importance of welfare benefits, stating, "welfare, by meeting the basic demands of subsistence, can help
bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life
of the community." n109 Yet, the promise of due process often fails claimants who usually lack
lawyers to argue appeals, struggle to get to hearings, and cannot take off work to fight for
their benefits. Nevertheless, the Goldberg opinion was vitally important in recognizing that public assistance "is not
mere charity," but a means for furthering democratic norms. n110 However, the momentum built by these welfare rights
cases came to a screeching halt when President Nixon appointed four conservative Justices in 1970. n111
2. The Poor are Not a Suspect Class
After 1970, the
Court solidified its position that the poor are not a suspect class under
the Equal Protection Clause , and thus, legislation that discriminates on the basis of wealth is reviewed
under a lenient rational basis standard. A suspect class is a group of people who have an immutable
trait, who suffer from a history of prejudice and stereotyping, and who lack a political
voice. n112 The Court has long recognized that race, national origin, alienage, and gender are suspect classes, and as a
result, legislation that draws lines on these bases is assessed under a heightened level of scrutiny. n113 By contrast,
without ever fully explaining why, the [*406] Court has regularly assumed that the poor do not meet the test for a suspect
class, n114 and it hammered home that point in its abortion funding cases. n115
In Harris v. McRae, n116 the Court upheld Congress's denial of Medicaid coverage for medically
necessary abortions; the restriction was challenged as violating equal protection because Medicaid covered other
medically necessary procedures. n117 The Court stated, "this Court has never held that financial need alone identifies a
suspect class for purposes of equal protection analysis," n118 explaining that "although government may not place
obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation.
Indigency falls in the latter category." n119 In the Court's view, an indigent woman has the same range of options as if
Congress had chosen not to provide health care coverage at all. n120 In dissent, Justice Brennan remarked that the
government's antiabortion policy may have resulted from majoritarian processes, but it was not foisted on rich and poor
alike. Rather, "it imposes that viewpoint only upon that segment of our society which, because of its position of political
powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality." n121
The majority's assertion that government plays no role in creating indigency is simply wrong, especially in light of the
state's role in tolerating gender discrimination in the labor market, which depresses women's wages. n122 The irony of the
decision is the Court's "failure to see that the inaccessibility of free abortions, combined with a legal system which does not
require employers to grant maternity leaves, child-care leaves, or a flexible work schedule, creates the very indigency
which prevents women from exercising the choice to have an [*407] abortion." n123 As a result of McRae, poor women
may forgo necessities, such as food and rent, to pay for abortions or turn to illegal and unsafe methods of abortion. n124 A
scramble for funds often leads to a delayed abortion, which in turn, costs more and has higher health risks. n125
Even if we accept the Court's test for identifying a suspect class (i.e., possessing an immutable
trait, a history of prejudice and stereotyping, and lack of political voice),
we know far more today about
poverty than we did in the 1970s, and this research suggests that the poor share many of the criteria of a
poverty is certainly not immutable, intergenerational mobility
is far more limited than our meritocratic myth assumes, as well as lower than in other countries.
suspect class. For instance, while
"Four out of 10 children whose family is in the bottom fifth [incomes up to about $ 25,000] will end up there as adults.
Only 6[%] of them will rise to the top fifth [incomes over $ 100,000]." n126 In short, who your parents are largely
determines what you will earn in the future. n127 At the same time, our [*408] societal notions of race and gender are
becoming more fluid and less categorical, as we recognize differing modes of self-identity and a larger spectrum of
immutability seems a weak peg on which to hang
constitutional doctrine .
As to the second factor, the poor suffer from a history of prejudice and stereotyping that is
variation. For these reasons,
compounded by racial and gender biases. As poverty scholars have explained, the poor have historically been categorized
as either deserving, meaning they cannot be blamed for their poverty, such as children, widows, and the disabled, or
undeserving, meaning they should be self-sufficient, such as able-bodied adults. n128 Public support is more
generous for the former, stingy and stigmatizing for the latter. This demarcation was put in stark
relief when welfare was reformed in 1996 from an open-ended entitlement program based on means-tested criteria. The
theoretical foundation of the current welfare program, called Temporary Assistance to Needy Families ("TANF"), is that
individual choices cause poverty, in particular, the individual choices of African American residents of inner-city
neighborhoods marked by concentrated poverty. Although African-Americans only account for one-quarter of the poverty
population, n129 and although few welfare recipients have lifelong dependency on welfare, the dialogue and debate
surrounding welfare reform centered on a culture of pathology among inner-city African Americans. n130 The media and
politicians picked up on these cultural explanations for poverty, and began demonizing the welfare queen, a term
popularized by President Reagan, which referred to a "woman of color who manipulates and exploits the welfare system,
scorns lasting or legalized relationships with men, and has a series of children out of wedlock in order to [*409] continue
her welfare eligibility." n131 The welfare queen became a frequent target during the racially tinged debates over welfare
reform in the 1990s. n132 During the debates on welfare reform, congresspersons referred to poor mothers on welfare as
"breeding mules," "alligators," and "monkeys." n133 In the end, TANF imposed work requirements on welfare mothers,
limited lifetime receipt of welfare benefits to five years, and permitted states to require welfare recipients to conform to
various behavioral mandates and to promote marriage as a solution to poverty. TANF has pushed millions off of welfare,
but the vast majority of former welfare recipients remain poor, either because they are
working in low-wage jobs or have disengaged from the social welfare system entirely. n134
As the TANF history reveals, the poor lack a meaningful political voice , which goes to the
third step of the suspect class test . A study by Martin Gilens showed a statistical correlation between
the views of higher income Americans and policy outcomes. n135 While legislation reflects the preferences of higher
income Americans, the preferences of the poor are completely ignored, and even the
preferences of median Americans have no impact when their preferences diverge from
the wealthy. n136 Why do the wealthy fare better? Gilens hypothesizes that "the most obvious source of
influence over politics that distinguishes high-income Americans is money and the
willingness to donate to parties, candidates, and [*410] interest organizations." n137 Similarly,
Larry Bartels's influential analysis of the voting patterns of United States senators found that they were responsive to the
ideological views of middle-and high-income constituents, but the views of "low income constituents had
no discernible impact" on their voting behavior, regardless of the Senators' party affiliation. n138 The poor's
lack of influence is not due to lower voter turnout (60% for the poor versus 80% for high-income respondents) or lesser
political knowledge or contacts. n139 Rather, "the data are consistent with the hypothesis that
senators represented their campaign contributors to the exclusion of other constituents."
n140
At the same time, corporations and wealthy Americans have no limits on what they
can spend on political campaigns, and they can afford expensive lobbyists to push for their
interests. Professor Stephen Loffredo states that the Court has remained resolutely noninterventionist with regard to
legislation impacting the poor by reflexively raising its fear of the "Lochner bogey" and "any backsliding toward the antidemocratic judicial adventurism of that era." n141 The result is that "corporations and wealthy
individuals may wield disproportionate power at the expense of the less affluent, but so
long as the richest CEO and the most destitute homeless woman each cast only a single
ballot, this version of democratic equality is satisfied." n142 In short, the assumption that the poor have
equal access to the political process is incorrect; rather, the Court "has handed the elected
branches a carte blanche to deal with a politically dispossessed minority." n143 By refusing
to see the overlaps between recognized suspect classes and the poor, both in theory and in fact,
n144 the Supreme Court plays a role in entrenching inequality.
3. Class-based Distinctions Are Subject to Rational Basis Review
The third tenet is that legislation that discriminates on
class grounds is subject to rational basis
review. Unlike strict scrutiny, this level of review "requires only that the State's system be
shown to bear some rational relationship to legitimate state purposes." n145 It is hard to
imagine a wealth classification that would not meet [*411] this lenient standard, and indeed,
"the [Supreme] Court has not struck down a welfare classification on constitutional grounds in thirty-four years and
counting." n146 Moreover, deference to economic policy means that even the most skewed tax
rates cannot be challenged. The Court explained its rationale for imposing rational basis review on wealth
classifications in Dandridge v. Williams, n147 in which the Court upheld Maryland's family cap welfare
policy. n148 That is, a policy of capping welfare benefits regardless of the size of a family, thereby not meeting the state's
self-defined "standard of need" for larger families. n149 The Court stated that, "in the area of economics and social
welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are
imperfect." n150 The Court acknowledged the difference between regulations affecting business and industry and those
that involve "the most basic economic needs of impoverished human beings." n151 Yet, it could "find no basis for applying
a different constitutional standard." n152 In short, "the intractable economic, social, and even philosophical problems
presented by public welfare assistance programs are not the business of this Court." n153 This theme was echoed in San
Antonio Independent School District v. Rodriguez, n154 discussed below, where the Court stated, with regard to school
financing, that "the ultimate solutions must come from the lawmakers and from the democratic pressures of those who
elect them." n155 This deference, however, is selectively applied, as the Court has not deferred to
other laws that serve the 99%, such as laws creating voluntary desegregation plans ,
laws regulating campaign finance , and laws regulating consumer welfare .
The plan’s grounds spillover to promote positive obligations for
fundamental economic and social rights
Swendiman 12 [Kathleen S. Swendiman, Legislative Attorney, July 9, 2012, “Health Care: Constitutional Rights
and Legislative Powers,” https://fas.org/sgp/crs/misc/R40846.pdf]
Substantive Due Process : Impact on Fundamental Rights
Despite the lack of discussion of health care rights in the Constitution, arguments have been made that the denial
by
the federal government of a minimal level of health care to poor persons transgresses the
equal protection guarantees under the Constitution. While the equal protection clause
of the Fourteenth Amendment applies only to the states, similar equal protection
principles are applicable to the federal government through the Due Process Clause of
the Fifth Amendment.9 A litigant challenging a federal action has the burden of proving
that the governmental action places an undue burden on the exercise of an individual’s
fundamental right. The standard of review used in cases involving fundamental rights is
called “strict scrutiny.” Using this heightened standard of review, if the Court determines that a fundamental right
has been unduly burdened, the governmental action will only be upheld if the government can demonstrate that the action
is necessary to achieve a compelling governmental interest.10
The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment provides
constitutional protection for certain rights or “liberty interests” related to privacy.11 Legislative
enactments that implicate the right to privacy have been reviewed under the heightened strict
scrutiny standard of review. Thus, the right to privacy has been held to include the right to procreate,12 use
contraception,13 have an abortion,14 and maintain bodily integrity.15
While the Supreme Court has held that the Constitution implicitly
confers a fundamental right to
privacy, the Court has not elevated health care to the status of a fundamental right .
The Court has evaluated governmental actions involving health care using the less
rigorous “rational basis” standard of review. Under this standard, a governmental action will be
upheld if the action bears a rational relationship to a legitimate governmental interest.16
For example, in Maher v. Roe, 17 the Supreme Court held that a state could refuse to provide public assistance for non-
therapeutic abortions under a program that subsidized all medical expenses otherwise associated with pregnancy and
childbirth. In other words, while the constitutional right to an abortion protected a woman’s
right to choose whether or not to terminate a pregnancy, it did not mean abortion was a
health right.1
In Harris v. McRae, 19 the Supreme Court held that the Medicaid program’s refusal, under the
Hyde Amendment, to pay for medically necessary abortions did not burden a
woman’s fundamental right to choose an abortion. The Court applied the rational basis
standard of review and found that poor pregnant women were not denied equal
protection of the laws because the abortion provisions were rationally related to a
governmental “interest in protecting the potential life of the fetus.”20 The Court also noted that
while the Due Process Clause of the Fourteenth Amendment affords protection against
unwarranted government interference with freedom of choice regarding certain personal
decisions, it “does not confer an entitlement to such funds as may be necessary to realize
all the advantages of that freedom.”21 The Court stated further,22
To translate the limitation on government power implicit in the Due Process Clause
into an affirmative funding obligation would require Congress to subsidize
the medically necessary abortion of an indigent woman even if Congress had not
enacted a Medicaid program to subsidize other medically necessary services.
Nothing in the Due Process Clause supports such an extraordinary result. Whether
freedom of choice that is constitutionally protected warrants federal subsidization is a question for
Congress to answer, not a matter of constitutional entitlement.
In other words, a woman has a constitutional right to terminate her pregnancy, but that right
is not unduly burdened if she cannot afford an abortion.23 More broadly, the Constitution
does not obligate the states or the federal government to pay for medical expenses, even for
the health care needs of poor persons.24 The Court’s use of the rational basis test for
constitutional analyses of health care legislation extends to other, related areas,
such as housing 25 and education .26 In the welfare area, the Court has, at times,
acknowledged the importance of public assistance to poor persons. In Goldberg v. Kelly, 27
where the Court held that due process rights attach to welfare benefits, the Court stated,28
From its founding the Nation’s basic commitment has been to foster the dignity and
wellbeing of all persons within its borders.... Welfare, by meeting the basic demands of
subsistence, can help bring within the reach of the poor the same opportunities that are
available to others to participate meaningfully in the life of the community.... Public assistance, then is
not mere charity, but a means to “promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity.”
While the Court recognized the state’s duty to meet the basic needs of its citizens, it
declined to impose an affirmative duty to do so, making it clear that welfare is not
a constitutional right, and the state does not have an obligation to provide resources to
meet subsistence needs.29
Scenario 2 is the environment Income inequality drives climate change and environmental collapse
Holmberg 17 [Susan Holmberg is a Fellow at the Roosevelt Institute, where she researchers and writes on
inequality and corporate governance issues, particularly around CEO pay reform and climate change, May 8, 2017,
"Boiling Points: The Inextricable Links Between Inequality and Climate Change," Roosevelt Institute,
http://rooseveltinstitute.org/boiling-points/]
Nevertheless, there
is ample research showing a clear and positive relationship between
climate change and economic and social inequality, which has enormous implications for
changing our climate conversation and building alliances across two siloed movements
and agendas . After providing some background on how researchers arrived at this result, this section describes the
research evidence and asks whether inequality is a cause of environmental damage, including the higher levels of
greenhouse gas emissions that cause global warming, or whether inequality is only correlated with environmental
degradation, meaning that societies with high inequality levels are also likely to pollute their environments more. We
Drivers of inequality —such as financialization and
corporate short-termism— also produce environmental harm and there are specific
argue that both statements are true:
mechanisms by which inequality itself damages our environment. We discuss both of these dynamics and then the
messaging potential of these findings.
Since the early 1990s, the academic conversation on the relationship between socio-economic factors and the environment
has mainly focused on the effect of economic growth on pollution levels, with the debate pivoting on what economists call
the Environmental Kuznets Curve (EKC). The EKC stems from the 1991 paper that economists Gene Grossman
and Alan Krueger wrote on the environmental impacts of the North American Free Trade Agreement (NAFTA); it
was a cross-country study that they argued demonstrated pollution would initially rise from NAFTA, but that rising
incomes would, over time, improve air and water quality. Economists swiftly picked up the
discussion from Grossman and Krueger, developing what Papanyotou (1993) first coined the EKC, an inverted u-shaped
curve that illustrates a hypothesized relationship between economic growth and environmental quality. The logic of the
EKC is that as the economy grows, environmental pollution increases until it reaches a certain threshold, at which point
society can afford measures that change this trajectory, for example environmental regulations or technological
innovation. While there was much enthusiasm for the EKC initially, there have been many challenges to its results,
particularly that there are missing variables necessary to accurately understand he relationship between income growth
and environmental quality (Shafik 1994; Stern 2003).
Recognizing the limitations of the EKC, a group of social scientists have turned to economic and social inequality to
explain variations in environmental quality measures like pollution levels, biodiversity, consumption pressure, etc. The
following provides a brief overview of the main available research evidence—presented in chronological order—and then
delves into how scholars explain the causality of this relationship.
Economist James Boyce (1994) was the first to theorize that income distribution affects
society’s ability to demand environmental quality. His central thesis is that when power and
wealth are distributed more unequally, the rich and powerful (who gain more than
others from environmentally degrading activities) are more able to impose
environmental harm on the poorer and less powerful (who bear disproportionate costs).
Boyce and Torras (1998) tested this hypothesis by conducting a study of international
variations in seven indicators of air and water quality, including the same variables used in the
original EKC study by Grossman and Krueger, and observed that inequalities in income and the
distribution of power, measured by levels of literacy, political rights, and civil liberties,
are significantly correlated with worse environmental outcomes . According to the
authors, these indicators “are found to have particularly strong effects on environmental quality in low-income countries.”
They found that once these inequality variables are included in a multivariate analysis, the apparent EKC relationship
between pollution and per capita income largely disappears.
Mikkelson et al. (2007) conducted the first study that looks at the impacts of inequality on
biodiversity loss. They found that among countries and U.S. states, the “number of species that
are threatened or declining increases substantially with the Gini ratio of income
inequality.” This is after controlling for factors like biophysical conditions, human population size, and per capita
GDP. “Our results suggest that economic reforms would go hand in hand with, if not serving as a
prerequisite for, effective conservation.” Holland et al. (2009) ran a similar study with
similar results. “Our results confirm that socioeconomic inequality is an important factor
to consider when predicting rates of anthropogenic biodiversity loss.”
Boyce et al. (1999) looked at environmental quality across the 50 states and asked why it’s
better in some states than others. Boyce explains: “Where income equality was greater,
where educational equality was greater, and where the fairness of fiscal policy in terms of both the tax system and
access to services like Medicaid was greater , you tended to find less
environmental degradation .”
UK geographer Danny Dorling (2010) conducted a study that looked at the world’s 25
richest countries, looking at behaviors like consumption of meat, water use,
production of waste, flights, and overall effects on ecology . He found that “in all these
affluent countries there are inequalities, and in those where inequalities are the greatest
it is now becoming evident that people, on average, pollute much more.”
Ash et al. (2010) conducted a study comparing industrial air pollution across U.S. metro
areas. The authors looked at the distribution of air pollution impacts across income levels and racial groups and found
that in cities where the gaps in pollution exposure between people of color and whites are
larger, there tended to be much more pollution in general. Australian researchers Andrich
et al. (2010) identify inequality’s impacts on the “stability of major systems including the social, terrestrial, water and
mineral industry.” Finally, economist Jungho Baek and his coauthors (2013) find that more equal
income distribution in the U.S. results in better environmental quality in both the short
and long run.
Another causal linkage between inequality and sustainability that social scientists have
identified is the role of trust. Specifically, when a society or a community has high levels of
inequality, this fosters less overall trust among people, which affects the environment in
two ways. First, as Wilkinson and Pickett (2010) argue, higher levels of trust and social cohesion —
social capital—foster public engagement and a civic awareness that is necessary for
demanding policy protections for the environment. Second, levels of trust predict the
success of sustainable group management and use of natural resources, which is an
often-neglected topic in policy discussions.
While the first role of trust—fostering social cohesion and civic awareness—is more intuitive, the second requires some
explanation. Garret Hardin’s 1968 “The Tragedy of the Commons” article made the case that groups of self-
interested humans, left to their own devices, would inevitably destroy natural resources. Elinor
Ostrom, however, won the Nobel Prize in economics in 2009 for her work demonstrating
that groups can, in fact, successfully manage common pool resources (e.g. community-managed fisheries, irrigation
systems, and even the community-controlled energy utilities mentioned above) through carefully designed and evolving
rules and practices. Ostrom (1990) argued that one of the key ingredients for successful common pool
resource (CPR) management is the presence of trust within the group.
While Ostrom herself didn’t address economic and power disparities in her work on CPRs (Holmberg 2011), other scholars
have added it to her analysis, arguing that inequality degrades trust levels among groups, which
undermines CPR efforts and outcomes. For example, Cardenas (2006) writes that groups can find it
difficult to cooperate “if, for instance, there are wealth distances in the group that limit the
possibility of getting group communication to be effective for building trust, cooperation,
and a commonly shared goal.” Justino (2015) also argues that “group level-trust and cooperation” are central
mechanisms for understanding how inequality affects collective action.
Since he first hypothesized the causal influence of inequality on the environment in 1994, Boyce
has emphasized
the role of political power in this relationship. Specifically, he posits that wealth and income translate
into political power that then allows people to use their influence both to demand more goods
that impose pollution on others and to demand more environmental protections for
themselves. The result is environmental injustice whereby exposure to pollution and other hazards is
concentrated disproportionately in less influential communities.
Boyce also argues that the total magnitude of environmental
of inequality. This is
harm depends on the magnitude
because, in unequal societies, the individuals and companies that benefit from environmental
“bads” tend to be more powerful than those who bear the costs. Therefore, the
greater the inequality, the
greater the incentive and ability for the wealthy and powerful to produce more
environmental harm for which others pay the price.
Even seemingly benign environmental regulatory mechanisms can play a role in leveraging wealth and power in
environmental outcomes. The Reagan administration long ago mandated that cost-benefit analysis would be the primary
tool for EPA regulatory decisions such as an allowable amount of pesticide use or exact levels of resource extraction. The
belief was, and still is, that cost-benefit analysis is the most objective, transparent, and efficient method to make policy
decisions.
But in addition to the fact that cost-benefit analyses are often criticized for being widely inaccurate and politically biased,
benefits are typically measured, via survey, by communities’ “willingness to pay” for environmental improvements, a
procedure that diminishes the political voices of marginalized groups. For example, wealthy respondents say they are
willing to pay more than the poor for keeping a landfill incinerator out of their communities. Thus, despite
the fact
that common sense tells us impoverished and disempowered communities would just as
much like to live in a clean and safe environment as the more wealthy and powerful,
cost-benefit analyses conclude otherwise. The end result is that a cost- benefit survey can recommend a
higher level of allowable pollution than if the survey results were based on a more equitable income distribution
(Ackerman and Heinzerling 2004).
The world is filled with examples of outsized political and corporate forces creating
environmental destruction while its victims have little power to stop or minimize it. The
protests at Standing Rock Sioux Reservation remind us how vulnerable native groups, for example, are to exploitation on
their own lands. As Winona LaDuke writes in a report for the White House: The toxic legacy left by fossil fuel and uranium
development on tribal lands remains today and will persist for generations, even without additional development. Mines
and electrical generation facilities have had devastating health and cultural impacts in Indian country at all stages of the
energy cycle – cancer from radioactive mining waste to respiratory illness caused by coal-fired power plant and oil refinery
air emissions on and near Native lands. Native communities have been targeted in all proposals for long-term nuclear
waste storage. The protests at Standing Rock also remind us that it takes enormous mobilization and political will to push
back against the powers that be and stop them from perpetrating further climate injustice.
It would be incredibly useful to have more studies on this particular intersection—and to explore the causation more
specifically, in the way that Boyce and Torras (1998) identified political variables and their relationship to environmental
harm.
One specific project that would be very helpful is to replicate Boyce et al.’s 1999 research, which linked relative income
inequality with environmental quality across the 50 states. Given the current political landscape in which
climate activists are turning to states to develop policy, it would be especially useful to
have a sense of how state-level economic conditions and policies are connected to
environmental outcomes.
In addition to more academic research, the idea of inequality as a driver of climate change must
also be fully integrated into our public debates around both climate change and
inequality. We have long siloed these conversations because so many of us buy into the idea that there is a tradeoff
between them. Thus the left has been distracted by a misguided debate about whether it is possible to pursue robust
economic growth while protecting the environment. Since the Reagan administration, Republicans have exploited this
confusion by arguing that protecting the environment is a job killer, something the press has also parroted over the years.
Our inequality debate has advanced enormously since the first tents were pitched in Zuccotti Park. We have made
enormous headway in our understanding of inequality’s drivers and, thanks to the Movement for Black Lives, have
improved our understanding of the racial dimensions of inequality. We are sorely lacking, however, in incorporating any
analysis of climate change and sustainability into that analysis.
Similarly, our climate discussion has lacked a strong, cohesive narrative. The false dichotomy of the economy
and the environment has made environmental arguments disjointed, and too focused on
countering climate denialism. Climate justice, while a powerful and absolutely essential message, does not
necessarily address that dichotomy.
The evidence that inequality both correlates with and drives environmental harm
empowers us to shed our awkwardness in trying to solve these two issues simultaneously.
When we discuss the issue of corporate short-termism or financial regulation, we can incorporate into our arguments the
fact that tackling
these is essential for our environment. More broadly, recognizing that
solving inequality is actionable climate policy builds on the foundation of climate
justice, providing an incredibly strong narrative for designing good policy and
mobilizing a massive, multi-interest climate movement.
This argument also tells us that that we must not ignore the distribution issues of climate policies, which are the subject of
Climate policies that exacerbate inequality ultimately will not
solve our climate problems .
the next section.
Warming causes extinction and magnifies every other existential risk
Torres 16 [Phil, Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and founder of the XRisks Institute, July 22, 2017, “Op-ed: Climate Change Is the Most Urgent Existential Risk,”
https://futureoflife.org/2016/07/22/climate-change-is-the-most-urgent-existential-risk]
Climate change and biodiversity loss may pose the most immediate and important threat to human survival
given their indirect effects on other risk scenarios.
Humanity faces a number of formidable challenges this century. Threats to our collective survival stem from asteroids and
comets, supervolcanoes, global pandemics , climate change , biodiversity loss, nuclear weapons , biotechnology,
synthetic biology, nanotechnology, and artificial superintelligence.
With such threats in mind, an informal survey conducted by the Future of Humanity Institute placed the probability of
human extinction this century at 19%. To put this in perspective, it means that the average American is more than a
thousand times more likely to die in a human extinction event than a plane crash.*
So, given limited resources, which risks should we prioritize? Many intellectual leaders, including Elon Musk, Stephen
Hawking, and Bill Gates, have suggested that artificial superintelligence constitutes one of the most significant risks to
humanity. And this may be correct in the long-term. But I would argue that two other risks, namely climate change and
biodiveristy loss, should take priority right now over every other known threat.
Why? Because these ongoing catastrophes in slow-motion will frame our existential predicament on Earth not just
for the rest of this century, but for literally thousands of years to come. As such, they have the capacity to raise or lower
the probability of other risks scenarios unfolding.
Multiplying Threats
Ask yourself the following: are wars more or less likely in a world marked by extreme weather events, megadroughts, food
supply disruptions, and sea-level rise? Are terrorist attacks more or less likely in a world beset by the collapse of
global ecosystems , agricultural failures, economic uncertainty, and political instability?
Both government officials and scientists agree that the answer is “more likely.” For example, the current Director of the
CIA, John Brennan, recently identified “the impact of climate change” as one of the “deeper causes of this rising
instability” in countries like Syria, Iraq, Yemen, Libya, and Ukraine. Similarly, the former Secretary of Defense, Chuck
Hagel, has described climate change as a “threat multiplier” with “the potential to exacerbate many of the challenges we
are dealing with today — from infectious disease to terrorism.”
The Department of Defense has also affirmed a connection. In a 2015 report, it states, “Global climate change will
aggravate problems such as poverty, social tensions, environmental degradation, ineffectual leadership and weak political
institutions that threaten stability in a number of countries.”
Scientific studies have further shown a connection between the environmental crisis and violent conflicts. For example, a
2015 paper in the Proceedings of the National Academy of Sciences argues that climate change was a causal factor behind
the record-breaking 2007-2010 drought in Syria. This drought led to a mass migration of farmers into urban centers,
which fueled the 2011 Syrian civil war. Some observers, including myself, have suggested that this struggle could be
the beginning of World War III , given the complex tangle of international involvement and overlapping interests.
The study’s conclusion is also significant because the Syrian civil war was the Petri dish in which the Islamic State
consolidated its forces, later emerging as the largest and most powerful terrorist organization in human history.
Now is key – other countries are acting, but US emission cuts are necessary
to solve dangerous levels of warming
Rahmstorf 17 [Stefan, Professor of Ocean Physics at Potsdam University, Head of Earth System Analysis at the
Potsdam Institute for Climate Impact Research, June 2, 2017, “The world needs the US in fight against climate change”,
http://thehill.com/blogs/pundits-blog/energy-environment/336066-the-world-needs-the-us-in-fight-against-climatechange]
The incontrovertible physics of the greenhouse effect means that global temperatures are
rising. They have risen exactly as was predicted in the 1970s, by 1 degree Celsius above
pre-industrial temperatures until now. Incontrovertible physics also means that
warming causes sea-levels to rise. They are rising faster now than they have for several millennia, and the
rise has accelerated threefold during the 20th century. Global warming also brings us
more extreme weather events, like crippling heat waves and droughts already affecting
millions of people. The world must work together to stop global warming. It is a threat
to all of us , to our children and to our children’s children. It cannot be reversed, only stopped in
time. The Paris accord is not perfect, but it is the best we could hope for. The deal’s main fault is that, due to decades of
dithering, it came so late. It aspires to limit global warming to 1.5 degrees Celsius, but that is practically unachievable by
now. Some critical tipping points may have already been triggered. The West Antarctic Ice Sheet looks doomed, a fatal
instability that will lead to its irreversible decay and raise global sea levels by three meters. Coral reefs are already dying
on a massive scale due to heat stress. Even holding global temperatures well below 2 degrees
Celsius, which should help to prevent even worse tipping points from happening, will
require global emissions to fall to zero by 2040 or 2050 at the latest. That is why fighting climate
change is a race against the clock now. That is why with any delay, even by a few years, the last chance to halt global
warming within manageable bounds is slipping through our fingers. President Trump appears unaware of basic scientific
knowledge, preferring to believe a false propaganda narrative from a group of fossil-fuel fans among his advisers. He even
reportedly fell for a well-known fake Time magazine cover — supposedly from the 1970s but in reality a modern
Photoshop job — warning of an Ice Age. It’s a favorite myth promoted by climate deniers that most climate scientists
predicted an Ice Age in the 1970s. And Trump has clearly fallen for the false “Climategate” narrative, referring to “those
horrible emails that were sent between the scientists” in a New York Times interview. This kind of doubt over climate
science is a “product with an industry behind it.” Someone with a lot of money is trying to fool you with this — and, by the
way, with bizarre economic studies that paint a grim picture of the economic consequences of the Paris accord. The
organizations that make up the U.S. climate change counter-movement have an annual income of over $900 million. In
the scientific community, there has long been an overwhelming consensus about
the basic facts of human-caused global warming. Apart from the studies that demonstrate this, I can
vouch for this fact from my personal experience of working in climate science for the past thirty years. The United
States is currently the second-largest emitter of greenhouse gases after China; in terms
of the accumulated historical emissions it is the largest. And, of course, U.S. emissions per
person are about twice as large as those of China or of Europe. That means that the U.S.
has a large responsibility for the worldwide consequences of these emissions that it
cannot just walk away from. Leaving the Paris Agreement and withdrawing from its emissions reduction
commitment is a reckless and irresponsible act. The Trump administration will not be able to derail the
global effort to halt global warming, since almost every country on the planet by now
understands — at least partly — how serious the threat of further global warming is. But the
U.S. can delay progress enough to push the Paris goals out of reach. If the U.S. does not
reduce its emissions in the coming years along with the rest of the world, we will
altogether fail in keeping global warming below a highly dangerous level .
1ac plan
On the grounds that denial of a minimal level of health care to impoverished
persons creates a suspect classification and thereby transgresses equal
protection principles protected by the Due Process Clause and the
International Convention on Economic Social and Cultural Rights, the
United States federal government should find a right to health care that
requires establishing national health insurance as an affirmative duty. The
United States federal government should establish a universal social
insurance fund for basic health care and tax supplementary health
insurance coverage at a rate tied to indices measuring the accessibility and
quality of basic care in accordance with global budgeting benchmarks.
1ac solvency
The plan creates universal coverage, reduces costs by shifting from fee-forservice to value-based care, and maintains a role for private, supplementary
insurance
Almgren 17 [Gunnar, professor in the School of Social Work at the University of Washington, Health Care as a
Right of Citizenship: The Continuing Evolution of Reform, Columbia University Press, 2017]
THE EMERGENT AMERICAN APPROACH TO THE FINANCING OF A SOCIAL RIGHT TO HEALTH CARE:
EMBEDDED SOCIAL
Although there are other formidable considerations, these
are the principal contextual limits that
shape the boundaries of what is feasible in health-care financing that will yield
some version of a social right to health care for all Americans. The worst-case scenario for the
form of this social right to health care, aside from the status quo of a piecemeal implementation of the ACA, is eminent
health economist Uwe Reinhart's predicted vision of a three-tiered health-care system comprising a poorly funded public
health-care tier that would provide a minimal standard of health services to the poor, a preferred provider network tier for
the middle class, and "boutique" medicine tier for the elites (see "A Conversation," 2013). The best-case scenario
for a far more equitable vision of health-care financing, which this book advances as both optimal and
feasible in light of the four core health-care policy aims developed in chapter 4, is what amounts to a "soft" twotiered health-care system-that is, a health-care system financed by (1) a universal social
insurance fund that provides a basic scheme of health insurance benefits commensurate
with adequate financial risk protection and the functional requisites of democratic citizen- ship and (2) a
vibrant voluntary complementary insurance market that caters to individual and social
class demands for more convenience and a broader array of health insurance benefits.
While this vision of a hybrid social insurance/private complementary insurance approach might appear to be no more
than an extension of the current system of financing health care for the nation's older adults, a kind of universal Medicare,
there are three important differences:
1. In contrast to Medicare as we know it, which is dominated by a traditional fee-for-service
payment model for approved services, technologies, and treatments that fuels unnecessary health-care utilization and
fragmented health care, the health-care financing mechanisms of the proposed universal social insurance
fund would be integrated with an outcomes-based health-care delivery system, such as
has already been advanced as essential to the future solvency of the current Medicare
program and, to a limited extent, already implemented under the ACA (The Brookings
Institution, 2014).
2. Also in contrast to Medicare as we know it, there
would be an individual and family household cap
on out-of-pocket expenditures that is means tested-also akin to current proposals for
Medicare reform that include a so-called catastrophic cap (The Brookings Institution, 2014).
3. As a final contrast to the current version of Medicare, the "catastrophic cap" would be set at a level of
income and assets that would preclude the necessity of purchasing private market
supplemental insurance as a hedge against unaffordable health-care expenditures and
medical bankruptcy. That is, the role of private supplemental insurance would be
complementary (in the sense of providing a mechanism for the financing of a broader array of nonessential healthcare services and a high standard of personal convenience for those who demand and are willing to pay for it) rather
than as the supplementary private component that is essential to realize an adequate
level of health insurance risk protection and access to comprehensive health care.
In sum, what has been proposed is the broad outline of an approach to the financing of health care that is a credible
alternative to the unrealizable egalitarian ideal of a wholly uniform comprehensive social insurance fund and the
repugnant three-tiered approach that relegates the poor to minimalist and stigmatized health care. It is a rational
approach to health-care financing that balances the desirability of a basic and adequate
social right to health care with the twin realities of a nonegalitarian and heterogeneous
society and an entrenched health insurance industry that thrives on both cultural
diversity and social stratification. The next task of this chapter is to address whether the proposed approach is
ideologically acceptable.
As defined here, a "soft"
two-tiered health care system is one where the qualitative differences
between the two levels of health care are not so extreme as to compromise either (1)
equal and adequate financial risk protection in the event of catastrophic health-care
expenditures or (2) the availability and quality of health care for health needs that are
crucial to the normal range of human functioning (as defined by Daniels, 2008, and elabo- rated upon
in chapter 4). A "soft" two-tiered system is also one that is not strictly reflective of differences in social class or other
aspects of social stratification but to a large extent reflects nonhierarchical differences in individual preferences for
investments in personal health care, health insurance risk protection, the scope of health-care services
available, and the emphasis on personal convenience relative to cost. A "soft" two-tiered
sys- tem reflects the phenomenon that many of us (irrespective of race, income, education, or any other
attribute associated with advantage) as a matter of personal preference would gladly trade the
occasional inconvenience of a crowded doctor's waiting room or a limited selection of
health-care providers for lower health insurance costs and the chance to spend our
money on other things. It also accommodates a significant role for private health
insurance as means of siphoning off consumption demands for an ever broader array of
health services and more convenience under the guise of "a reasonable standard of basic
health care" that would in the end make public health insurance an unaffordable
entitlement (Gruber, 2009). Finally, because the lower tier of a "soft" two-tiered system is
neither exclusively nor dominantly composed of the poor and marginalized of society,
the social stigma attached to two-tiered health care is greatly minimized. This is very
different from the more pejorative conceptualization of a two-tiered healthcare system where the low income and poor possess a far more limited entitlement to
health care than the middle and upper classes, as represented by the distinction between private insurance coverage
and Medicaid ("A New Prescription," 2011).
With this definition in mind, it is evident that "soft" two-tiered systems are quite prevalent among modern democracies
with universal health insurance coverage. For example, included among the many OECD member nations with a
significant role of private health insurance as a supplement to public health insurance coverage (defined as paying for
services that are not covered by the public health insurance plan, such as dental care and pharmaceutical products) are the
Netherlands (covering 89 percent of the population), Israel (80 percent), Canada (68 percent), Australia (34 percent), and
Finland (14 percent) (OECD, 2013a). Less prevalent among OECD member states is a strong preference among the public
for the use of private insurance as a means of gaining faster and more convenient private- sector access to medical services
where there are waiting times in public systems. In fact, some countries (like Canada) have regulations that prohibit the
use of private insurance for publicly insured medical and hospital services to preclude the eventual development of a twotiered system with inferior services for the low income and poor (Hurley & Guindon, 2008).9 While it is unlikely that such
a restricted use for private health insurance would be either legislatively or constitutionally feasible in the United States,
such government policies do speak to the importance of sustaining a high standard of
access and care quality in the publicly funded health-care services, which is only possible
to the extent (1) that the public health insurance plan is adequately funded so as to
preclude the necessity of private health insurance as a means of accessing essential
health care and (2) pri- vate health insurance is treated as a commodity rather than as an
exten- sion of a public entitlement to a higher standard of health care.
Framed by these considerations, in the next section of the chapter, I present the essential features of a two-tiered healthcare financing scheme that funds a basic scheme of comprehensive health-care services as a social right of citizenship,
while preserving a place for private health insurance for the health-care services and products that are classified as
desirable rather than essential.
establish a universal social insurance fund that provides
Tier I: Limited Entitlement Social Insurance Trust Fund for Basic Health Care
Expenditures for preventative, curative, rehabilitative, and adaptive health services,
technologies, and products that are deemed essential to the realization and preservation
of the normal range of functioning will be covered under a compulsory social insurance
fund under amendments to the Social Security Act that will (1) remove the age and
income criteria from existing health-care entitlements and (2) merge the separate parts
of Medicare into a single social insurance fund for health care. Copayments for covered health-care
expenditures are permissible but subject to an individual and family household cap commensurate with the elimination of
income-based disparities in health-care access and quality. Both covered services and the specific rules for
copayments and caps will be established through evidence-based public deliberation and
congressional action, as guided by three policy imperatives: (1) adequate and equal risk
protection, (2) optimal amelioration of disparities in health-care access and quality, and
(3) fiscal sustainability.
Tier II: The Unsubsidized Voluntary Private Health Insurance Market
Expenditures for health-care services, technologies, and products that are not deemed
essential to the realization and preservation of the normal range of functioning will be
the province of individual out-of-pocket payments and the voluntary private health
insurance market, as will be the individual and family household copayments for health-care services deemed
allowable under the public basic health-care plan. The only restrictions placed on the private health
insurance market (other than those necessary for consumer protection, the fostering and protection of competitive
markets, and health information security) are (1) those that will be necessary to ensure fee and
reimbursement parity between the public health-care plan and private insurance plans
with respect to equivalent health-care services, technologies, and products and (2) the
disallowance of either direct or indirect tax subsidies for the costs of individual or group
private health insurance coverage, except where it is deemed beneficial to the accessibility, quality, and
solvency of publicly funded healthcare entitlements.
This two-tiered approach to the financing of health care is based on two primary considerations. The first is the practical
impossibility of achieving a high standard of uniformity of health insurance coverage, health-care access, and health-care
quality in a heterogeneous and complexly stratified society inhabiting a vast continent. The second is the entrenched
health insurance industry and the related culture of health-care consumerism that is also deeply embedded in American
society. As argued in this chapter and also previously by Harvard University health-care economist Jonathan Gruber
(2009, p. 12), the best plausible alternative is an explicit two-tiered health-care system,
whereby society sets minimum standards in the scope of public health-care coverage,
access, and quality but then allows individuals to purchase higher levels of coverage,
access, or quality using their own resources (either directly or through a vibrant private in- surance
market). Where this specific proposal for a two-tiered system goes beyond Gruber's explicit
two-tiered approach is its insistence on a high threshold regarding what is defined as
minimum in each of these areas- in essence, a scope of health-care coverage commensurate with (1)
the realization and preservation of the normal range of functioning and (2) a level of
insurance protection sufficient to eliminate income-based disparities in health-care
access and quality.
The plan caps health care expenditures and creates private insurance taxes
in accordance with the accessibility and quality of national care --- global
budgeting ensures universal, high-quality coverage for cheap by leveraging
geographic variance
Almgren 17 [Gunnar, professor in the School of Social Work at the University of Washington, Health Care as a
Right of Citizenship: The Continuing Evolution of Reform, Columbia University Press, 2017]
The pessimistic scenario would instead see many of the nation's roughly 300 local
health-care markets5 be characterized by consolidation into three or so integrated
health-care networks that would , with each in control of key local hospitals, make it very
difficult for employers and health insurance underwriters to exclude any one network
from price and quality competitive contracts—in effect, imposing the kinds of restraint on
competition that could both lead to higher prices at lower quality and also invite federal
antitrust litigation. In fact, there is evidence that in some local health-care markets, this has
occurred (Cutler & Morton, 2013). Also, the inability to exclude high-price/high- prestige
hospitals from local integrated networks may also impose a limit to price-based competition if not
quality-based competition. Another element of this more pessimistic scenario is the inability of local safety net
hospitals to find an integrated care network with which to merge, due to their antiquated facilities and disproportionate
shares of uninsured patients. Finally, there is the potential of separate and unequal quality of care
if there is a hierarchy of integrated care networks that emerges that mirrors social
stratification in the labor market, with low-cost/limited-benefit health insurance plans
and primary medicine clinics with a high proportion of Medicaid patients acting as the
selection mechanism into low-cost and low-quality health-care networks.
Summary Comments on the Contextual Considerations in Health-Care System Delivery Reform
There are four take-home points from the preceding discussion of the contextual considerations in health-care system
equity of access to high-quality
health care will require major national investments in health-care system
capacity building in underresourced communities and underserved populations. The second is that
delivery reform. The first is that the realization of a higher level of
amelioration of disparities in having access to high-quality primary care, particularly those that pertain to class and race,
must be central to the evolutionary priorities of health-care system delivery reform. The third take-home point is that the
enormous geographic variation in health -care expenditures in the absence of clear evidence of
improved outcomes actually holds great promise for the realization of a fiscally sustainable
high-quality health-care system . The fourth take- home point is that local integrated healthcare networks have already evolved to become the health-care provider structures of the
foreseeable future. Over the past three decades, this local provider structure has become as deeply embedded in the
nation's health-care system as had the private health insurance industry in the 1950s and thus must serve as the basic
building block of the health-care delivery system of the future in ways that promote the ends of reform to be achieved—
equitable and sustainable access to high- quality health care as a social right of citizenship.
THE NUTS AND BOLTS OF THE EVOLVING NATIONAL SYSTEM OF HEALTH-CARE SYSTEM DELIVERY
The transition from a national health-care financing structure, predicated on an employmentbased private insurance with a public insurance residual, to
the two-tiered single-payer approach
summarized in chapter 5 transfers enormous cost and quality control leverage to the
federal government . To the provider and technology sectors of the health-care
industry (leaving aside libertarian ideological objections), this is generally regarded as disastrous for
the quality and sustainability of the nation's health-care system.
Indeed it would be , if the basic benefit package of the limited "Medicare for All" plan
described in chapter 5 replicated traditional Medicare's fundamentally hands-off approach to the
enormous (provider-driven) variability in average Medicare beneficiary expenditures in the
absence of discernable health benefits (Fisher et al., 2009).
The nation cannot afford a uniform Medicare-like social insurance plan for health care in
the absence of a national effective cost control strategy, nor do we want to achieve fiscal
sustainability at the cost of reduced quality of care and less than optimal population
health. So, aside from abandoning the notion of universal social insurance for healthcare altogether or turning to a
public plan voucher approach that competely commodifies health care, is there another alternative that
ensures universal basic health insurance coverage while promoting fiscal sustainability?
Indeed, there is such an alternative , one common to national health-care systems throughout the world
that have achieved both universal coverage and fiscal sustainability - generally referred to as " global budgeting ."
Defining Global Budgeting
global budgeting refers to a process through which governments determine
the totality of national publicly funded health-care expenditures in advance and allocate
resources in accordance with budgetary limits (Shi & Singh, 2001). While this sounds very basic and
In a nutshell,
reasonable given that budgeting public funds in accordance with public priorities and preferences is an essential function
of good government, this has never been the approach taken in the United States, where health-care
expenditures have multiple private and public payment sources in the absence of any
particular government agency or structure providing overall oversight or control.7 Even in
the Medicare program, where there is complete federal responsibility and authority over the social insurance fund for
hospital care, the primary function of the federal government has been to define benefits, pay claims, and forecast future
expenditures and program solvency. Thus, we have a Medicare program that, while facing the prospect of financial
insolvency in the absence of significant reforms, pays $14,165 per beneficiary each year in Miami, an amount that is over
$5,000 in excess of the nation's median expenditure per demographically equivalent beneficiary8 (Dartmouth Institute
for Health Policy and Clinical Practice, 2012).
The Mechanics of Global Budgeting: The Two-Tiered Global Budgeting Approach
Using global budgeting as a means of ensuring the sustainability of universal health insurance coverage has long been the
practice in Canada and throughout much of Europe. The use of a global budgeting approach in the United States is not a
new or original proposal but actually goes back to the early 1990s as the Clinton administration's Health Security Act was
being designed and debated. The basic idea of global budgeting is a cap on overall spending
while providing a high degree of local administrative autonomy to design and prioritize
services and control costs (Hendrickson & Reinhart, 2010). While global budgeting is the typical
approach to the management of a single-payer system where the government is the sole
underwriter of health care, global budgeting can also be designed to accommodate a
multipayer system (Long & Marquis, 1994). The approach suggested here is a two-tiered
global budgeting approach , consistent with the two-tiered health insurance
approach advanced in chapter 5. This would consist of a "hard" global budgeting process that
places caps on basic social insurance fund expenditures for core services of health care
and also government-subsidized investments in health-care infrastructure, as well as a
"soft" global budgeting oversight of private-sector health-care expenditures that
uses the government's taxing authority to restrain the growth of private healthcare expenditures to a predefined share of overall national health
expenditures . The rationale and basic details of both tiers of global budgeting are explained in more detail in the
discussion that follows, beginning with the "hard" form of global budgeting that would be applied to the first-tier (Tier I)
health insurance coverage provided through social insurance, and then elaborating on the specifics of the "soft" Tier II
global budgeting approach that utilizes taxation as the enforcement mechanism.
Tier I global budgeting. The "hard" version of global budgeting is characterized by a process that allocates
social insurance fund health-care expenditures in accordance with the population health
and health-care priorities of a defined geographic unit, with a fixed cap on overall expenditures. While
(as described before) the budgeting process grants a high degree of local administrative autonomy to design and prioritize
services and control costs in accordance with the contingencies of local context (such as transportation infrastructure and
prevalent population health risks), the basic array of local health services largely mirrors those of a
national template of optimal "best practices" in health-care delivery of the core healthcare services covered under the national social insurance fund for health care. There is, in
the "hard" Tier I one version of global budgeting, the setting of health-care priorities, healthcare delivery design, and dispersal of funds as a function of governance (both national
and local), as opposed to health care in accordance with the vicissitudes of market forces
and their relationship to embedded systems of social stratification.
Tier II global budgeting. As pointed by Long and Marquis (1994), if global budgeting were limited to
the publicly funded health-care services with supplemental health insurance coverage
available through an unrestrained private insurance market, it would both (1) exacerbate
income-based inequalities since low socioeconomic status (SES) families would only be able to afford
the basic core services in Tier I health care and (2) promote cost shifting between covered and uncovered services. In
addition, to the extent that the more affluent segments of the population are able to purchase supplementary private
insurance fashioned to their consumption preferences, they will be less inclined to support a sufficient package of core
health-care services.
On the other hand, consistent with arguments made in chapter 5, from the standpoint of political feasibility, an allencompassing approach that would apply rigid cost controls and prioritized allocation of health resources to all healthcare
needs and services is unrealistic in a culturally heterogeneous and socially stratified society with a strong strain of
libertarianism in its politics.
The two-tiered global budgeting approach provides a balance to these concerns by allowing
the exercise of consumer preferences for supplementary insurance that would cover
noncore health services or more convenient access to core health services. However,
individual preferences for supplementary insurance would be exercised within (1) limits
tied to accessibility and quality of core services for those reliant on Tier I services for the totality of their
health care and (2) limits to the share of the nation's overall health expenditures
consumed by noncore health-care services. Both of these limits to the private supplementary health insurance market are
crucial obstacles to the evolvement of a two-tiered health-care system with large disparities between the rich and poor in
the accessibility and quality of their health care. The question is, how could these limits be enforced ?
In contrast to the direct budgetary control mechanisms in Tier I global budgeting as a function of government allocation
and oversight of health service funds, enforcement mechanisms for Tier II health-care
expenditures would entail federal taxation of supplementary health insurance
coverage that is tied to indices of the accessibility and quality of Tier I core health-care
services— in essence, federal taxation rate triggers that would make it more costly
for health- care consumers to turn to private supplementary health insurance to the
extent that the standard of health care for Tier I services is allowed to deteriorate.
The federal taxation rate trigger approach to Tier II health-care services would thus serve three functions. First,
it
would reduce the incentive of more affluent health-care consumers to substitute (both at the
ballot box and in their personal health-care consumption choices) private supplementary health insurance
coverage for inadequately funded public health-care coverage. Second, in tying the taxation rate of
private supplementary insurance to measures of health-care accessibility and quality for Tier I services, it expands
the numbers of stakeholders in the maintenance of high standards of care in Tier I core
services to include the private insurance industry and providers of Tier II health services.
Third, to the extent that the higher tax rates for supplementary insurance are triggered by less favorable indices of Tier I
service accessibility and quality, tax revenues from supplementary (Tier II) coverage can be used to improve Tier I
services.
For reasons explained in the discussion that follows on the optimal geographic boundaries for global budgeting, it is
essential that the taxation triggers of Tier II supplementary health insurance be federally determined and the tax itself be
federal. But we are still left to ponder not just the method or source of taxation of Tier II health insurance coverage but
also the justification.
Visualizing the Global Budgeting Structure for Tier I Core Services
Figure 6.1 represents the essential structure and functional components of the global budgeting of Tier I core health
services, as would be suggested as optimal from the preceding discussion. There are two essential omnibus premises of the
model of global budgeting depicted in figure 6.1, the first pertaining to the authority and responsibilities of the federal
government and the second pertaining to the authority and responsibilities allocated to the states.
Provider components of Tier I health-care delivery system
The federal government has the authority and responsibility to do the following:
•
Establish and collect revenues, disperse funds, and ensure the solvency of the
national social insurance fund for Tier I health care in accordance with the
substantive goals of a social right to basic health care for all citizens.
•
Establish core health-care services.
•
Set national benchmarks on the accessibility, quality, and equitability of core
service health care.
•
Define the national model for the delivery of care.
•
Define health system population health priorities and outcomes.
•
Determine national spending limits and allocations of global funds for operating
and capital expenditures in each state.
•
Set private insurance taxation rates in accordance with national criteria on the
accessibility and quality of Tier I services and the limits of Tier II expenditures as
a share of total national health expenditures.
The authority and responsibility allocated to the individual states are summarized as follows:
•
The states have wide latitude and authority to work with communities and health-care delivery
markets to design and implement local health-care delivery systems
•
•
and to contract with
health-care providers and provider networks in accordance with the achievement
of national benchmarks of health-care accessibility, quality, and equitability.9
The states represent the first line of provider and provider network accountability
to national benchmarks of Tier I health-care accessibility and quality.
Any state's allocation of national health-care funds will have three components:
(a) an operating budget component for the delivery of core health services, (b) a
capital budget allocation based on needed investments in health-care
infrastructure that is based on national infrastructure benchmarks (such as geographic
proximity to tertiary care services), and (c) a capital budget allocation based on investments
in new technology that meet rigorous criteria for population health benefits
relative to cost.
2ac
2ac resilient
The economy’s resilient to short-term shocks, otherwise tons of thumpers
would have triggered the link --- prefer long-term economic structure over
asinine short-term predictions
Parkinson 12/29 [David, has been covering business and financial markets since 1990, and has been with The
Globe and Mail since 2000, December 29, 2017, “Resilience and unbottled 'animal spirits': Why we should be optimistic
about the global economy,” https://www.theglobeandmail.com/report-on-business/rob-commentary/the-biggest-reasonto-be-optimistic-about-the-future-of-global-economy/article37454345]
When I consider what most surprised or impressed me as an economics writer in 2017, it wasn't the surge in
Canadian growth or the impressively strong footing that the global economy found in the year. It wasn't the turnaround in
monetary policy among many of the world's central banks, from years of loosening to the beginnings of tightening.
It wasn't even the worrisome slide into the politics of economic isolationism and protectionism, led by Donald Trump but
hardly monopolized by him, which threatens global trade institutions and the modern global economic order.
No, what strikes me about 2017, above all these remarkable and potentially world-changing things, is that this was
the year the world finally got over its fears about potentially world-changing
things. After nearly a decade of post-financial-crisis trauma, we finally pushed the pervasive
mood of worry and uncertainty to the back burner, and got on with it.
It's not just that the global economy finally looked like the global economy again, although that was a big part of it.
Economic growth has not only returned to healthy rates of growth, but it has broadened, incorporating more countries,
more regions, more economic sectors. Worldwide trade grew at its fastest rate since 2011.
With that came a sense of confidence that we haven't seen since the 2008-2009 financial crisis and Great Recession beat
the optimism out of us. Stock markets hit record highs. In Canada and the United States, consumer and business
confidence readings soared. Perhaps most importantly, global business investment, stuck in a rut for years, finally picked
up.
It's not as if there are no reasons to worry. Rising interest rates , the N orth A merican f ree- t rade
a greement renegotiations, political turmoil in Washington, Brexit in Europe, the No rth Ko rean nuclear
threat, social and political upheaval in the Middle East – to name a few – presented plenty of
uncertainty for global commerce and financial markets in 2017. Closer to home, new mortgage
rules, small-business tax changes, provincial carbon pricing and minimum-wage increases in Ontario and Alberta gave
businesses and consumers reason to hesitate.
And yet the
hesitation , so pervasive during the long and routinely disappointing postrecession recovery, is
gone – or, at least, has subsided so much that it no longer stands as an impediment to economic
progress, in Canada as well as much of the rest of the world. We no longer have to fear fear . This
is what legendary British economist John Maynard Keynes called the awakening of the "animal spirits" – "a
spontaneous urge to action rather than inaction." It's something essentially impossible to predict and quantify, but it's an
essential ingredient to igniting a sustainable, healthy economic expansion.
Indeed, the concept of animal spirits is something Bank of Canada Governor Stephen Poloz has raised more than once
during Canada's on-again-off-again recovery that now looks very much on again. The central bank has fretted for years
about the lack of business investment even as growth seemed to warrant it. The bank has often cited a stubborn, bordering
on chronic, sense of uncertainty in its surveys of business leaders as a cloud hanging over investment decisions. This
uncertainty has been a serious headwind to Canada's economic outlook.
Is the uncertainty gone? Most certainly not. As we enter 2018, Canadian business faces one of the biggest
uncertainties it has in decades: the potential collapse of a major trade alliance with its North American neighbours.
Indeed, in a mid-December interview with The Globe and Mail, Mr. Poloz suggested that the lack of clarity surrounding
the outcome of the NAFTA talks may be a bigger threat to economic activity than the direct impact of an outright
cancellation of the pact, in terms of its capacity to cripple businesses' investment decisions on major long-term projects.
But once the animal spirits have been released, it may take a lot to get them back in
the bottle – just as it took a lot to get them unbottled in the first place. The Canadian and global economies,
and the many players within them, look more resilient than they have in a long time. That's the
biggest reason to be optimistic about our ability to weather whatever 2018 has in
store for us.
Recession now
Mobasheri 9/15 [Ardavan Mobasheri, is managing director and chief investment officer of ACIMA Private Wealth and
adjunct professor at the Robins School of Business at the University of Richmond, “These charts show recession odds may
be higher than you think,” CNBC, September 15, 2017, https://www.cnbc.com/2017/09/15/these-charts-show-recessionodds-may-be-higher-than-you-think.html]
While the early assessment of second quarter GDP growth relieved some of the concerns that came from the first quarter's
rather anemic 1.2 percent growth, two
important forward-looking measures are signaling not just a
slowdown but a very strong possibility of recession in 2018 .
The absolute level of monthly payroll gains has provided comforting evidence to the bulls that employment remains
healthy, but it is the "relative" growth that gives us pause on the potential for consumer spending over the coming 12
months.
Year-to-date payroll gains of 1.405 million compare to 1.548 million for the same period in 2016, with a higher starting
base. August payroll numbers pointed to a year-over-year growth rate of only 1.45 percent, the weakest in exactly six years.
Twelve months prior to the start of the 2008-2009 recession, payrolls were growing at 1.55 percent. They were growing at
2.6 percent a year before the 2001 recession, and at 2.39 percent a year before the 1990 recession. In fact, payroll gains
have averaged 2.67 percent 12 months prior to the beginning of all recessions since 1947.
we have never had a situation where payroll growth was this weak
on a year-over-year basis and we were not in a recession within the next 12
months . Not since 1947, at least.
With such a growth rate and rather tame real wage growth, the profile of consumer spending
over the course of the next four quarters looks quite frail relative to the past several years. That could prompt
Put differently,
even weaker hiring, especially in economically sensitive sectors.
Bank
commercial and industrial lending (a.k.a. C&I Loans) has slowed dramatically . A
year ago in July, banks were expanding this component of their balance sheets at a rate
of 9.35 percent compared to the prior 12 month period. The latest data from the Federal
Reserve point to a growth rate of only 1.6 percent over the last 12 months.
The other measure of concern to us is business loan growth, the engine of investment and of job creation.
Bank of America CEO Brian Moynihan argued as such recently by labeling loan demand as "OK" and not "strong" for his
bank. The Federal Reserve's recent survey of loan officers indicated that despite less restrictive lending terms, loan
demand from large and middle market firms was at its weakest net level since 2010, with over half of the bank officers
surveyed citing decreased customer financing needs as reasons for the weakness.
No wonder the growth rate in jobs has weakened . Since the end of World War II, such
weak growth rates in business lending have always occurred either during a recession or
immediately following one.
And when combining these two all-important indicators, the picture becomes even
bleaker. The American economy needs healthy business investment, hiring and consumer spending to sustain growth.
And while business confidence surveys , especially for the small business segment, remain strong, they
are not showing up either in the pace of hiring or in demand for credit.
Looked at in combination, when growth profiles for both indicators have been this weak
historically, we were either in a recession or just coming out of one. Given the age of this
cycle, we know that later is not likely. Heading into all recessions since the 1950's (the data from the Federal
Reserve on C&I loans only permit us to look at recessions since 1953), we have never had such a weak one-two punches of
sub 2.0 percent year-over-year growth rates for the engine of consumer spending and business expansion.
2ac link turns
Income inequality destroys the economy --- Stark --- causes reckless
profiteering and rampant speculation, it was behind the 08 recession and
the next one will be worse
The plan has a huge initial cost cut, and supplementary private insurance
causes innovation, competition, and lower costs
Vernon 9 [Bradley H., ASA, MAAA, actuary at Eastern Life and Health Insurance Company in Lancaster,
Pennsylvania, “The Future Of U.S. Health Care: A Two-Tiered System,” 2009, https://www.soa.org/library/essays/healthessay-2009-vernon.pdf]
The first tier in this two-tiered system will be a federally run, universal system in which basic
health care is provided to everyone living in our country; costs are controlled to an
affordable level; and quality of care continues to improve. The first step might be a national health database which is
already being discussed by the Obama Administration. Allowing currently uncovered persons to enroll into the system the
first time they receive service, by the provider, will help prevent people from falling through the cracks. It will also
eliminate the need for the large distribution market currently used by private insurance.
This first tier of health care will enjoy a substantial one-time cost cut due to the
removal of numerous costs. The costs to be eliminated or greatly reduced include
commissions, underwriting, marketing, profits and much of the duplicated expenses,
including management, associated with a competitive insurance market. In order to keep
the first tier affordable on an ongoing basis, the plan will also involve rationing, restrictions and limits that we are not
currently accustomed to in the United States. This means long wait times for many services, while other procedures that
many believe to be helpful may be denied or strictly limited. The key to making and keeping this universal system
affordable will be the government focusing on costs and benefits and not being clouded by emotion or politics. Focusing
on the cost associated with extending a person’s life by one year or alleviating pain for a day is not something we are
accustomed to, but this will need to become the way of thinking in order to reach our conflicting goals. The third goal for
our government will be to continue to improve the quality of care provided within this first tier of health care. This means
using quality measures to evaluate and take action with health care providers, but it also means finding a way to continue
the funding of research and development. One of the biggest fears around a universal system is that it will stifle the
innovation and advancement we have seen in medicine. Government funding, as well as a clear understanding of how new
procedures and prescription drugs can become a part of the government run plan, will be required to support continued
medical advancement. One advantage we have in formulating this first tier of health care is that we have other countries to
look to, and even states within our own country, for feedback regarding what does and does not work.
Second Tier—Preservation Of Autonomy
The second tier in our future health care system is one that allows a person to buy his or her way out
of the waiting times, restrictions and limitations of the first tier. This second tier is where
autonomy is preserved and individuals and groups can purchase insurance that looks
much like what some of us enjoy today. It is supplemental to the first tier with the focus
being more on flexibility and individual choice. Those who do not want to succumb to rationing or the government,
deciding that a year of their life is not worth the cost associated with a certain procedure, can purchase private insurance
to cover these services. The second tier will be privately run but will continue to require government
regulation similar to what we have today. This second tier will make up a much smaller portion of the health care pie than
private insurance does today, but cost containment, accessibility and quality of care will remain the
goals for this sector.
Stocks
They have to win the plan collapses the insurance industry – it doesn’t – it
retains it as supplemental
Insurance companies diversify away from health – no impact
Berman 17 (Michael Berman has been in the health and disability actuarial field since 1996. During that time he has
gained a broad experience within the insurance industry and as an employee benefits consultant. “If single payer health
care passed in the US, would health care stocks crash?”. August 12, 2017. https://www.quora.com/If-single-payer-healthcare-passed-in-the-US-would-health-care-stocks-crash) swap
If single payer health care passed in the US, would health care stocks crash? Michael Berman:
Not necessarily . Even in a single payer environment there could be a role for the
private sector. Medicare Advantage is a good example of a possible role for private insurers. CMS is the single payer
for Medicare yet millions of people receive fully insured Medicare Advantage plans from commercial insurers. Thus if the
entire country went to a single payer system there could be a similar role for private insurers. Some of these
companies have other lines of business that would not be displaced by single payer
medical. For example, Cigna has a group insurance division that sells group life and
disability. I don’t think this country is anywhere close to single payer and if it did happen, its easy to
imagine some important roles for commercial insurance companies.
They have 0 ev that health insurance is key to the overall stock market –
energy and telcom checks healthcare decline
Ciolli 9/26 (Joe Ciolli is a senior markets reporter at Business Insider. “The stock market has been flipped
completely upside down”. September 26, 2017. http://www.businessinsider.com/stock-market-news-rotation-hasflipped-it-completely-upside-down-2017-9) swap
Take everything you thought you knew about the stock market this year and throw it out
the window. After eight months of tech and healthcare dominance, the record-breaking
S&P 500 has assumed a fresh new face in September, being instead led higher by energy
and telecom shares . Digging deeper, as the scorching-hot FANG stocks — Facebook, Amazon, Netflix and
Google — have headed toward correction territory this month, energy producers have stepped up and
largely filled the void, aided by a surge in crude oil prices. This resilience shown by
the S&P 500, which just last week hit a series of new record highs, goes a long way towards disproving
the notion that the stock market is trading at the whim of the tech industry. That's good news for
bullish traders, and a comeuppance of sorts for skeptics that warned against a market reckoning in the event of tech
weakness. The rotation occurring underneath the surface of the S&P 500 this month — out of tech and into other more
attractively-priced areas — has played out on a smaller scale a few times in the past several months. On multiple
occasions, exchange-traded fund data has supported the idea that money pulled from tech has simply been reallocated
elsewhere in the stock market, keeping indexes afloat. "Sector
rotation has been a defining
characteristic of equity markets throughout the spring and summer," Fundstrat Global Advisors
technical strategist Robert Sluymer wrote in a recent client note. This dynamic has also been in play outside the confines
of sectors. Looking strictly on a return basis, the top 20% of stocks in the S&P 500 in 2017 through
August have evolved into the worst-performing quintile in September. On the flip side, the bottom 20% from the first
eight months of the year is now the top quintile this month. And records are being hit all the while — just
the latest impressive sign of resilience for the 8 1/2-year bull market that refuses to die.
Healthcare stocks are getting hammered
Bird 1/30/18 [Mike Bird, Wall Street Journal.] “U.S. Stocks on Pace to Have Worst Day Since May”
(https://www.wsj.com/articles/asia-pacific-stocks-follow-u-s-markets-lower-1517276150) – Mzhu
The Dow Jones Industrial Average dropped more than 400 points Tuesday, a second straight day
of triple-digit declines, amid a slide in health-care shares and worries over rising bond yields.
The blue-chip index recently declined 392 points, or 1.5%, to 26047, on track for its worst day since May, after
earlier falling as much as 411 points. The S&P 500 dropped 1.1% and is set for its first daily decline
of more than 1% since August. A decline Tuesday would mark the first time this year that the indexes have
fallen for two consecutive days.
Before this week’s slide, the S&P 500 was off to its best start to a year since 1987, buoyed by strong corporate earnings,
improving economic growth and the new U.S. tax law. The S&P 500 has notched 14 record closes so far this month, the
most records in a single month since June 1955, compared with 11 records for the Dow.
While the GOP’s tax cuts and robust earnings have driven markets up in recent weeks, “these things are age-old,” said
Kent Engelke, managing director at Capitol Securities Management, Inc. “What’s the next catalyst?”
Health-care stocks were among the worst performers in the S&P 500, off
2.1%, coming under pressure after Amazon.com, Berkshire Hathaway and JPMorgan
Chase unveiled plans to form a company to figure out how to reduce health-care costs for
their hundreds of thousands of U.S. employees.
2ac debt/deficit da
Link turn – we get rid of Medicare and Medicaid spending, which are far
more fiscally insolvent than the plan
No impact to the deficit
Clark 13 [Charles Michael Andres Clark, “Hawking Dire Projections,” The Deficit Scolds' Unsound Logic, January 19,
2013, https://www.commonwealmagazine.org/hawking-dire-projections]
deficit hysteria is that it distracts our attention from
the more serious problems our elected officials should be trying to solve. A recent New York
One of the most damaging effects of the current
Times column by David Brooks, titled “Why Hagel Was Picked,” is a good example of this deficit fixation, which has
become common not only on the right but among self-described centrists.
Instead of focusing on the important foreign-policy challenges America faces and whether Senator Hagel is qualified to
face them as Secretary of Defense, Brooks explains Hagel’s nomination as the natural consequence of the federal
government’s unwillingness to rein in expensive entitlement programs. Brooks argues that the defense
budget is being “squeezed by the Medicare vise” and that America will cease to be a world power if it has
to provide decent medical care and social protection to the elderly and the poor. “Oswald Spengler didn’t get much right,”
Brook writes, “but he was certainly correct when he told European leaders that they could either be global military powers
or pay for their welfare states, but they couldn’t do both.”
The first problem with Brooks’s analysis is the assumption that Medicare and Medicaid are
themselves the cause of our future fiscal problems. While Brooks is right that the rise in
Medicare and Medicaid costs is unsustainable, the reason these costs are rising so fast has nothing to do
with bureaucratic waste or profligacy. These federal programs are getting too expensive only
because health care in general is getting too expensive. If health-care costs were to keep rising as fast
as they have over the past two decades, spending on health care would eventually take over the entire economy: we would
all be working solely to pay for our insurance. Obviously this can’t happen. Sooner or later, we will have to fix our healthcare system so that it won’t.
As a percentage of GDP, the United States pays more than twice as much for health care as most other rich countries do,
and most of these countries have better health outcomes. Clearly, we still need to reform our health-care system. By itself,
“Obamacare” will not be enough. The goal of the Affordable Care Act is to extend health-care insurance to as many people
as possible. It does this partly by expanding Medicaid but mostly by arranging for more
Americans to get private insurance. But simply adding more policy-holders to the ranks
of the privately insured will do nothing to curb the cost of health care. We currently pay
too much, and receive too little, because the health-care industry has been taken over by
Wall Street, whose major goal, with health insurance as with banking, is maximal shortterm profit. Its goal is not to make the health-care system cheaper, more efficient, or more just. The insurance
industry, which is merely a branch of Wall Street, is itself one of the main causes of out-of-control
health-care costs. A system that is both affordable and effective will be possible only
when we tame the insurance industry, either by regulating it much more like a public utility, or, better, by
taking it out of the equation and replacing it with a single-payer system. You don’t have to look far for evidence that a
reasonable and efficient (if not very profitable) health-care system is well within the means of a country as affluent as ours.
Countries less affluent have already achieved it.
Brooks may be right that most Americans are unwilling to pay for America to remain the world’s policeman. I suspect
most Americans are quite willing to pay enough for the country to defend itself. Today the U.S. military budget is bigger
than the twelve next largest military budgets combined. We account for 45 percent of the world’s military spending even
though we have only 5 percent of its population. We spend almost five times as much as China or Russia. Budgeting is
about choosing what we value most, and, pace Brooks, it is surely a good sign if Americans decide to stop fighting wars we
don’t need to fight so that our government can afford to take care of the elderly and the poor. As Dwight Eisenhower (a
Republican) put it, “Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft
from those who hunger and are not fed, those who are cold and are not clothed.”
But the biggest problem with Brooks’s analysis is its premise that the federal government’s out-of-
control spending will sooner or later cause it to go bankrupt, turning us into the next Greece. It’s
true that the aging of our population will require adjustments in how we spend our money (just as the postwar Baby Boom
did). But these adjustments will be quite manageable as long as we make intelligent and
evidence-based policy decisions. To see what happens when policy-makers disregard evidence in favor of
panicked intuition, one need only look at what’s happening right now in the European Union, where harsh austerity
programs designed to reduce debt levels have only succeeded in inhibiting economic
growth.
Like most deficit hawks, Brooks is worried by dire long-term debt projections. Yet such projections are not
a good basis for policy-making, for two reasons. First, they are notoriously inaccurate .
Remember the 2000 forecast of federal government surpluses as far as the eye could see? Long-term forecasts are
inaccurate because the future is essentially unknowable. All such forecasts are based on the
assumption that the future will be just an extension of present trends.
Economists call this the “ergodic axiom.” But all economic history since the advent of
capitalism shows that we live in a nonergodic world . This, by the way, is why most
economists didn’t foresee the financial meltdown: housing prices had never
plunged before, and this was taken to prove they never would . When social scientists
make predictions, they often hedge them with the Latin phrase ceteris paribus—“all other things being equal.” But in the
long run all other things are not equal. The variables change. Circumstances that are unforeseen and unforeseeable render
our old projections moot, or current trends hit a natural limit that the projections disregard.
To give just one example: Most of the long-term projections for federal debt are based on the
assumption that health-care spending will continue rising at the rate or near the rate it has in the
past twenty years. Yet, as I mentioned before, this is impossible. Frequently the assumptions
underlying the projections are chosen to produce a desired outcome, especially for political
documents like Paul Ryan’s budget plan. But even if the smartest, best-informed people produce
them without any political agenda, long-term forecasts are not very helpful. If people paid
more attention to the performance record of past long-term forecasts, they’d take current ones less seriously, or at least
more cautiously.
debt
does not constrain the U.S. government the way it constrains a business or a
household. This is because the U.S. government—unlike, say, the Greek government, which is
chained to the euro—pays its bills in its own money and so can always pay for what it wants.
The real constraint is future production: Will the economy produce enough goods and
services in the future to satisfy the demands of the American people and their
government? What government programs we can afford in the future will depend on both demographics and
The second reason policy-makers should not allow themselves to be cowed by long-term debt forecasts is that
advances in technology—as well as on noneconomic factors like wars, natural disasters, global warming, irrational
politicians, and others things beyond the expertise of an economist.
Most analysts look only at demographics when they consider the long-term future of
Social Security and Medicare, and this leads them to erroneous conclusions. We are often told
that Social Security is unsustainable because the number of workers per retiree is falling. At first glance, this analysis
seems to make sense. In 1960 there were 5.1 workers for every retiree; by 2010 that number had fallen to 2. Worse, it is
projected to fall to 1.9 in 2086. This looks ominous indeed. But let’s look at another example. In 1940 there was one
farmer for every fourteen people. By 1960 the percentage of the population working in agriculture had been cut by more
than half, so that each farmer was feeding thirty-four people—more than twice as many as just two decades before. Today
each farmer feeds more than 138 people. Yet that fact does not make us worry about a coming food shortage because we all
know that, thanks to advances in technology, the average farmer now produces much more food than farmers did in 1960
or 1940.
And what is true of food production is true of economic productivity more generally. The best way to ensure that Social
supporting government investment
in things that will make the economy more productive — above all, in education and
Security will still be around for future generations is to continue
research and development.
The budget hawks’ baleful warnings of “unfunded liabilities” is finally meaningless. If we
applied the logic of “unfunded liabilities” to food (surely our most important future liability), we’d
find that we have an unfunded liability of $359.3 trillion over the next seventy-five years
(assuming a modest 3 percent growth rate). Should we then worry that our children are going to
starve, as the budget hawks now worry that our children won’t have Social Security? How are we going to pay
for all the food people will need? Should we start saving now so we can pay for food in the future? No, of
course not: the food we will eat in the future will be food grown in the future, and we will
pay for it with future incomes. In the same way, future economic activity will pay
for future retirees.
The major economic problems we now face are high unemployment, income inequality, an economy dominated by Wall
Street, and a government under its whip. The fact that many House Republicans now appear to be unwilling to let the
federal government carry out its basic responsibilities is also a real problem—a real problem based largely on an imaginary
The irrational fear of debt will become a self-fulfilling prophesy if it leads
to austerity policies that make us collectively poorer and therefore less able to
produce the goods and services the country will need in the future. The prophets of austerity are
one.
like someone who asks us to starve ourselves now so that there will be enough food left for future generations. In fact,
the best way to prepare for the future is to take care of the present .
2ac bizcon da
Trump is eroding business confidence, particularly because of uncertainty
about the future of health care, plan provides it
Paletta 8/7
Damian, “Washington dysfunction fuels uncertainty for businesses,”
https://www.washingtonpost.com/news/wonk/wp/2017/08/07/washington-dysfunction-fuels-uncertainty-forbusinesses/?utm_term=.bc4619c82d4b
Corporate uncertainty about whether the Trump administration will be able to deliver on
numerous promises — including tax cuts, health care, a China crackdown and infrastructure — has
forced many companies to put important hiring and investment decisions on hold,
potentially crimping an economic expansion that appears ready to accelerate.
A Washington Post review of dozens of conference calls in recent weeks between chief executives and analysts show how
the fog of policymaking is paralyzing many companies from taking risks that in normal times would help them grow. The
conference calls were held as part of a quarterly ritual in which executives discuss their firm's performance and outlook for
the future, and they give voice to some of the reasons U.S. economic growth has been so weak at a time
when inflation and interest rates remain historically low.
One manufacturing company is having a hard time making acquisitions because other
companies are waiting to see what happens with tax incentives.
A staffing executive says firms are still hesitant to boost hiring until they know more about what Washington plans to do
on taxes and regulation.
A financial industry CEO, Ronald Kruszewski of Stifel, said that investors are nervous about new
opportunities because of “lack of clarity from Washington on deregulation and tax
policy.”
Confidence isn’t key to the economy – fundamentals outweigh
Irwin 17 [Neil Irwin, senior economics correspondent for the New York Times.] “Confidence Boomed After the
Election. The Economy Hasn’t.” the New York Times, July 4, 2017
(https://www.nytimes.com/2017/07/04/upshot/confidence-boomed-after-the-election-the-economy-hasnt.html) - MZhu
After Donald J. Trump won the presidential election, Americans’ optimism about the economic
future soared. But midway through the year, that optimism has not translated into concrete
economic gains .
This seeming contradiction exposes a reality about the role of psychology in economics — or more specifically, how
psychology is connected only loosely to actual growth. It will take more than feelings to
fix the sluggishness that has been evident in the United States and other major economies for
years. Confidence isn’t some magic elixir for the economy: Businesses will hire and
invest only when they see concrete evidence of demand for their products,
and consumers intensify their spending only when their incomes justify it .
The sharp rise in economic optimism after the election came through no matter how the
question was asked or who answered, whether the survey was intended to capture consumer confidence or consumer
comfort or consumer sentiment. It was true in surveys of small-business owners and of C.E.O.s of some of the biggest
companies in the world. And the rise during the winter months in these surveys has mostly been sustained in the months
since.
But the economy is plodding along at the same modest rate it has for the last eight years
nonetheless — at least when you look at “hard” data around economic activity instead of
“soft” data like surveys, as analysts put it.
President Trump said on Twitter on Sunday that the stock market was at an “all-time high” and that unemployment was at
its lowest level in years, both of which are true (he added that wages would start going up, which is certainly possible).
But in overall measures of economic activity, the expansion looks much as it has for years,
with steady growth of around 2 percent. The Trump economy so far looks an awful lot
like the Obama economy.
For all of business executives’ apparent enthusiasm, the nation is adding jobs more
slowly in 2017 than it did in 2016, and investment spending by businesses is growing modestly;
new orders for capital goods are up only 0.7 percent so far in 2017.
Consumers’ spending was 2.7 percent higher in the first four months this year than in the
same period of 2016, adjusted for inflation — which is slower than the 3.2 percent yearover-year gain at the end of 2016.
And while the stock market has been surging and the Federal Reserve has raised short-term
interest rates, long-term Treasury bond yields remain very low, suggesting that traders
do not buy the idea that growth is poised to accelerate . A falling dollar suggests currency
markets see improving prospects in Europe and elsewhere.
There is no sign a recession is brewing, but neither is there evidence for the kind of boom
you might expect if you believe that confidence is a crucial driver of economic growth.
This is less surprising when you look at the historical record of confidence surveys.
When financial commentators talk about the economy, they often use the elusive concept
of confidence as part of their narrative. It’s hard to describe what is happening in the global economy, with billions of
people producing trillions of dollars of goods and services. Using a vague psychological concept is a tidy
way of describing why things happen when the underlying drivers are uncertain.
To say that “the economy is slowing down because people are less confident” sounds a lot
better than “the economy is slowing down for a whole bunch of complex reasons that I’m
not really sure about.” Confidence has a kind of mystical explanatory power thanks to its
vagueness.
But “confidence” isn’t really some psychological pixie dust that determines the economic
future. Rather, it often reflects underlying fundamentals — whether consumers see
job opportunities readily available, for example, and whether businesses are seeing
strong advance orders.
“Confidence generally goes up when we see strong income growth or big gains in
household wealth,” said Karen Dynan, a senior fellow at the Peterson Institute for
International Economics whose former work for the Treasury Department and Federal
Reserve included forecasting consumer spending. “You’ll typically see higher
consumption spending after that happens. But it’s caused by the rise in income and
wealth, not the rise in confidence .”
Sometimes these surveys can pick up on shifts in those fundamentals before they are evident in more concrete data points.
But that doesn’t mean that they do a fantastic job on their own of predicting the economic future.
Since 1999, there has been a fairly strong correlation between the Conference Board’s
consumer confidence index and the growth in personal consumption expenditures over
the ensuing six months, just as you might expect. (And if the past relationship holds, spending levels will
accelerate.)
But that chart looks about the same if you instead look at the relationship between
growth over the preceding six months and the next six months. In fact, that correlation
was stronger than confidence. In other words, if you had just predicted that the
immediate future would be similar to the recent past, you would have done a better job
projecting consumer spending during the last couple of decades than if you had relied
only on a confidence survey.
Confidence surveys can make economic forecasts more accurate, according to some analysis — but only in certain
circumstances, and if used correctly.
For example, Michelle L. Barnes and Giovanni P. Olivei of the Federal Reserve Bank of Boston found that forecasts were
more accurate when they built in data from the Reuters/University of Michigan survey (now the Bloomberg/Michigan
survey) that is also used to calculate consumer sentiment. And Stéphane Dées and Pedro Soares Brinca of the European
Central Bank found that confidence surveys can provide information about the future that economic fundamentals do not
at economic turning points, and may be a factor in how crises spread between countries.
Those results suggest that why confidence shifts matters a great deal. At certain moments, ordinary
consumers and businesses may instantly pick up on shifting economic fundamentals that
would take time to show up in the official economic data.
For example, from July through November of 2007, consumer sentiment and
confidence numbers plummeted , even as measures of consumer spending and
employment were relatively steady. Credit was tightening and the housing crisis was worsening, but
consumers seemed to pick up that the economy was on the verge of a recession (which began
in December 2007) before it was at all clear from official data.
you can also find the reverse . Those same measures of
confidence fell precipitously in September 2005, in the aftermath of Hurricane Katrina .
That disaster ultimately had no major impact on the overall economy .
When confidence rises or falls suddenly, the move will predict a shift in
economic performance only if something happens to the fundamentals to
justify it . The early warning that confidence surveys offered on the 2008 recession was
useful, but the downturn happened not because consumer confidence fell,
but because the underlying forces around housing and credit that it
reflected were so damaging. The post-Katrina drop wasn’t matched by any
major deterioration in economic fundamentals, so it was a mere historical
blip.
One clue as to which precedent applies here is in the partisan breakdown in sentiment surveys. Instead of an
across-the-board improvement in confidence, it appears that Republicans became
sharply more confident while Democrats became somewhat less so. That implies that the
postelection confidence surge was about conservatives feeling more giddy about their side winning
than about the broad mass of Americans picking up on improving economic
fundamentals not yet evident in the data.
For every example like that, though,
The Trump administration’s promises of major tax cuts, infrastructure spending and pro-growth regulatory policy have
been slow in coming, but could conceivably change that over time.
But history shows that confidence alone won’t cut it.
2ac nhi = single-payer
we meet?
“NHI” mandates provision of insurance to all residents- only permutations
of single-payer and public option are topical
Roberts 15 – Dr. Robin Roberts, MD MBA Director, University of the West Indies School of Clinical medicine &
Research, The Bahamas, “Sparking the Debate: The Introduction of National Health Insurance in the Bahamas”, March,
http://bahamasmedicalcouncil.org/wp-content/uploads/2014/02/A-PRIMER-FOR-NATIONAL-HEALTH-INSURANCEIN-THE-BAHAMAS.pdf
At the onset, there
is a need to clarify the relevant and related health care terminologies
typically used interchangeably: national health, national health insurance, and
universal health coverage. A national health system or plan is where the government
mandates comprehensive and essential health care services to which all
residents/citizens have access and availability as needed, without the barrier of
affordability, at the point of delivery of the service. This is normally funded from the
consolidated fund or general tax revenues appropriated for health services, not collected
specifically for health care. The term national health insurance system or plan,
theoretically defines a list of comprehensive and essential services which are
covered by a mandatory insurance premium or plan which the government mandates
to cover all residents and to which everyone must contribute; thus all are
entitled to access care as needed without the barrier of affordability, at the point of
delivery of the service. Universal health coverage, universal health or universal coverage
extends the financial affordability and guarantee of a national health or national health
insurance plan. It aims at securing access for all to appropriate promotive, preventive,
curative and rehabilitative services at an affordable cost that secures financial protection
with no fear of financial hardship or impairment. Nerdwallet, the USA consumer based financial
analysts and advisors illuminated quite clearly the limitations of health insurance coverage and financial risk. Nerdwallet’s
research in 2013, determined that health care is the biggest cause of bankruptcy in America: “Almost two million people
will file for bankruptcy protection (from health care bills). Outside of bankruptcy, 56 million adults, more than 20% of the
population between the ages of 19 to 64 years, will have major financial impediments because of health care costs. Fifteen
million people have depleted their savings to cover medical bills and another 10 million will be unable to pay for
necessities such as rent, food and utilities…more than 25 million people are skipping doses, taking fewer medications or
delaying refilling prescriptions to save money.” 18 Health insurance, be it personal or national, does not eliminate
financial hardships in seeking medical care. The required or desired government services may not be readily accessible or
available, and the insurance copayments, deductibles or premiums may be financially constraining. In many developing
countries, while government services may be available at minimal costs (as in the Bahamas), people seek private care,
through direct, out of pocket expenses, for easier access or perceived better quality care. For many who can afford to
purchase private care, they incur significant financial hardships. A universal insurance coverage plan
mandates a national health or insurance program to this higher calling of removing all
financial impediments to access, availability and appropriate health care. It maximizes risk
pooling, cost sharing, and greater financial efficiency and equity. Universal coverage undertakes the philosophy that
health care is a public good, hence, a state responsibility. The individual’s monies can be invested in other economic
endeavors, such as purchasing a home or higher education, rather than securing their personal health. Universal health
coverage then becomes a vital tool for state development. So though well intentioned, national health systems and
national health insurance per se, do not translate automatically or guarantee financial security from financial hardship.
For many national health care systems, universal coverage remains the Holy Grail. With this clarity of nomenclature and
ideologies of national health, national insurance and universal coverage, let’s return to the issue of who pays and how, and
who owns and regulates these national health funding strategies.
Overlimiting bad, especially on this topic --- leaving us with zero affs ensures
no room for innovation or incentive for research – but our topic still limits
out ACA affs
Single-payer is meaningless --- zero topical affs and imprecise standard.
Timothy JOST 8. Emeritus Professor at the Washington and Lee University School of Law. “The Role of a Public
Health Insurance Plan in a Competitive Market Lessons from International Experience.” Last cited date: 2008.
http://law2.wlu.edu/deptimages/Faculty/Jost%20Role%20of%20a%20Public%20Health%20Insurance%20Plan%20in%
20a%20Competitive%20Market.pdf.
One place we might look for information to resolve the question of the likely effects of a public plan is the experience of
other nations. Although the popular health care reform debate often characterizes the health
care systems of other nations as “single payer,” there is not in fact any “single-payer”
health care system in the world. Every developed country in the world finances health
care through a mixture of public insurance, private insurance, and out-of-pocket
expenditures.
Ground – the most balanced topic is centered on whether greater
government intervention in insurance is good or bad, which still builds in
neg ground while they limit core topic discussions
Reasonability -- centering debates on the best interpretation of the topic
creates a moral hazard to go for topicality
2ac establish = congress
we meet - congress has to fund the social insurance fund
Establish means to settle firmly – that creates a brightline because it limits out affs
that create new powers for existing agencies
Pfander 9 [James E., Owen L. Coon Professor of Law at Northwestern University, 2009, One Supreme Court:
Supremacy, Inferiority, and the Judicial Power of the United States, Google books edition, no page]
6. Johnson's dictionary anticipates modern works by defining "ordain" to mean to "appoint; . . . [t]o establish; ... to
institute[;] . . . [t]o set in an office[;] . . . [and] [t]o invest with ministerial function, or sacerdotal power." 2 Johnson, supra
note 4; see also 2 AMERICAN DICTIONARY, supra note 4 (defining "ordain" as to "set; to establish in a particular office
or order; hence, to invest with a ministerial function or sacerdotal power"). Modern works define "ordain" as to "decree;
order; establish; [or] enact" and "to invest with the functions or office of a minister, priest, or rabbi." WEBSTER'S New
World, supra note 148, at 1000. Johnson
defines "establish" as to "settle firmly ; to fix
unalterably[;] . . . [t]o form or model[;] . . . [t]o found; to build firmly." 1 JOHNSON,
supra note 4; see also 1 AMERICAN DICTIONARY, supra note 4 (defining establish as to
"set and fix firmly or unalterably; to settle permanently"). Modern dictionaries follow
Johnson by defining "establish" as "to order , ordain, or enact ( a law [ or] statute . .
.) permanently" and "to set up . . .; found; institute." Webster's New World, supra note 4,
at 479. Missing from the definition of "establish" (though present with
"constitute") is the sense of designating or appointing an existing institution to
serve in a new capacity .
***Courts establish through interpretation of law
Gertson 10 [Larry, Professor of Political Science, San Jose University, Public Policy Making: Process and
Principles, p. 12]
Although courts are not active in the legislative process, they play
an important role in policy making.
Courts establish policy through interpretation of the law as it pertains to guarantees in the
Constitution, sometimes to the chagrin of Congress and the president. One such example occurred over the
protection of voting rights. In 1965, in the heat of the civil rights movement. Congress enacted the muchheralded Voting Rights Act, which set up strict registration guidelines in states with low voter participation. Historically,
low participation existed in Southern states due to intimidation of African Americans. More than four decades later,
plaintiffs claimed that strict enforcement was no longer necessary because of increased African American turnout;
opponents countered that without strong federal enforcement the turnout would go down. In 2009, the U.S.
Supreme Court ruled 5-4 that application of the law should be narrowed to districts
where minorities comprise at least half of the population.2" With that decision, the Court
narrowed Congress's intent.
No ground loss – we spec a highly specific solvency mech in our Almgren ev
which requires the Court to establish and the political branches to
implement
At best this is an extra T arg – we give them access to court das and unique
pics that turn ground
Aff ground outweighs – single branch fiat makes it impossible to be aff
especially in the Trump era
Courts affs are good , they generate advantage areas that mean the neg can’t
rely exclusively on states all year and we debate something besides the econ
advantage
No resolutional basis --- only says federal government so it’s arbitrary to
limit out entire branches
Reasonability -- centering debates on the best interpretation of the topic
creates a moral hazard to crowd out substance
Trump CP Plank
Only the aff’s enforceable right to health solves the ilaw advantage
Goren 10 [Ashley, J.D. Candidate at Wash U. School of Law, “Treating Health Care under the Right to Health: Why the
Public Option is the Only Way to Prevent Inequitable Access to Medications from Becoming Terminal,” Health Law &
Policy Brief 4, no. 2 (2010): 41-53]
IL Analysis
The health care system within the U.S. creates a jungle in which all citizens must fend for themselves. As a result, a
disturbing percentage of citizens cannot afford the materials necessary to protect their health. 90 This begs the question:
does the U.S. comply with the legal obligations of the right to health doctrine ? In
order to determine the answer, one must first discern the doctrine's authority on the U.S., what it requires, and whether
the U.S. meets these requirements.
A. The
Right to Health Binds all Nations as Customary International Law
The right to health doctrine has ripened into a rule of customary
international law .9
1 As established above, to form customary international law, a norm must constitute "settled
practice" and states must follow it pursuant to a belief that the practice is obligatory.92
Evidence exists to meet both facets of this test. 93
1. Implementation of the Right to Health is Accepted Practice
A practice need not be universal, but should reflect a general acceptance by relevant
states to amount to accepted practice. 94 Evidence of human rights as state practice includes domestic
constitutional protection of the right, decisions upholding it in regional and national courts, U.N. resolutions, and regional
organization resolutions. 95 The evolution and increasing acceptance of the right to health
doctrine resulted in a proliferation of such evidence to demonstrate the doctrine's status
as customary international law.96
The right to health enjoys widespread international acceptance. 97 Almost every country in the
world is a party to at least one treaty that recognizes the right to health.98 Copious regional agreements also recognize the
right.99 Over one hundred nations include health care access in their national constitutions.100 Of these nations, at least
six mandate specific steps the government must take towards achieving a successful health care system that all citizens
can access.'
These countries thereby commit themselves to achieving quality health care that all citizens can afford.' 02
The requirement to uphold the right to health is also enforced by courtS. 103 An array of cases before domestic and
regional courts condemned actions that violated the states' duties to protect these rights.' 04 Domestic courts have upheld
obligations under the right to health doctrine in countries including South Africa, Canada, Argentina, Brazil, Colombia,
Costa Rica, Ecuador, India, and Venezuela. 05 Additionally, the Inter-American Court protects the same rights inherent in
the right to health doctrine, but more commonly under the "right to life."106 This shows that nations condemn violations
of the right to health, accept the doctrine's obligatory nature, and are actively enforcing its provisions.107
Furthermore, state acceptance of the right to health doctrine goes beyond rhetoric .108 All
developed nations, except for the U.S., provide universal health care coverage.109
Countries increasingly protect health care access as an integral right of citizenship.110
Even nations that do not confer health rights within their constitution spend exorbitantly
to ensure health care accessibility."' Based on the near universal recognition and implementation,
protection of the right to health now constitutes accepted practice.112
2. States Follow the Right to Health Doctrine Pursuant to a Perceived Obligation
States implement the right to health doctrine based on a perceived obligation .113
When states consent to international resolutions or enforce a legal doctrine in court,
they accept the binding nature of the doctrine .114
The international community has validated the obligations imposed by the right to health doctrine through numerous
international declarations." 5
The members of the United Nations unanimously accepted the Universal Declaration of Human Rights, which heralded
the right to health as a fundamental human right.116 Nations also accepted the right to health doctrine through World
Health Organization resolutions, such as the Alma-Ata Declaration and "Health for All in the Twenty-First Century."l 7
In addition to the international resolutions, widespread state participation in treaties recognizing the right to health
supports the existence of opinio juris and establishes the right to health doctrine as customary law.11 8 Rights crystallized
in multilateral treaties become customary international law when widespread practice conforms.119 Thus, the
numerous international and regional treaties enforcing the doctrine lend additional
credence to the doctrine's status as customary international law.'20 The right to health is
enshrined in as many treaties as the right to be free from torture, another human right now accepted as customary law.'2
' The myriad treaties protecting the right to health enjoy widespread ratification in addition to their prevalence.' 22
Upholding the right to health doctrine is general practice followed pursuant to the belief that it imposes an obligation and
is, therefore, customary international law.123 As such, the right to health doctrine binds all nations. 124 The doctrine thus
holds authority over the U.S. under international law.125
B. CESCR's General Comment No. 14 Defines the Term "The Right to Health" and Provides Guidance on Compliance
The term "right to health" may invoke any number of different concepts.126 Since the relevant treaties provide scant
guidance on what steps countries must take to comply, states and scholars look to the U.N. Committee on Economic,
Social and Cultural Rights' General Comment No. 14 for guidance.127 General Comment No. 14's description of the
obligations under the right to health doctrine is widely accepted and is considered the most comprehensive and respected
delineation of the concept.128
General Comment No. 14 contains the authoritative interpretation of the International Covenant on Economic, Social and
Cultural Rights ("ICESCR"), the core treaty establishing the right to health.129 When a treaty provision is also
customary international law, it binds non-treaty parties only to the extent that it reflects
state practice.' 30 General Comment No. 14, however, not only establishes ICESCR's scope, but also mirrors nations'
current practice.131 The obligations outlined by General Comment No. 14 frequently form the interpretation of the right,
even outside of the U.N.1 32 Both regional and domestic bodies employ the analysis contained within the General
Comment.133
It is the most commanding and frequently invoked interpretation of the right to health
doctrine.134 it therefore provides the proper scope through which to interpret the right to
health doctrine in customary international law.135
C. The United States is in Breach of the Right to Health Doctrine as Defined in General Comment No. 14 because Medicine
is Not Equitably Accessible Absent Discrimination
Pursuant to the requirements established by General Comment No. 14, the U.S. is in
breach of the right to health doctrine under customary international law .' 36
General Comment No. 14 reports that the right to health requires countries to ensure the availability, accessibility,
acceptability, and quality of health care facilities, goods, and services. 137 However, prescription medications in the U.S.
are not economically accessible to all citizens. 138
The term "goods" refers to products necessary to protect health.' 39 The Committee on Economic,
Social, and Cultural Rights specifies that treatment for diseases and "essential" medicines are core health care goods.' 40
Prescription medication, an important health "good," can be crucial to the treatment, prevention, and control of diseases,
and therefore is clearly protected by provisions guarding health goods.141
Although all aspects of the doctrine are crucial, the
right to health predominantly focuses on
individuals' ability to access health care . 142 Members of the population must be
able to access health care equitably 43 and without discrimination.144 States must ensure that
socially disadvantaged groups can afford health care goods and services. 145
Prohibitive costs create subpar access to health goods.146 Nations must ensure that essential medications are available
equitably to all citizens, despite their economic status. 147 CESCR explains that states
have an affirmative
duty to ameliorate accessibility inequalities, even if they arise unintentionally.148
A state may need to implement policies that favor the disadvantaged or impoverished portions of the population.149 The
requirements of nondiscrimination and equitable access exist throughout
international law , nullifying any argument that an alternative definition of the right to
health doctrine could exclude these provisions.' 5 s Therefore, if essential medications are not equitably
and indiscriminately available to all, and the government does not act to change this situation, the state violates the right
to health.' 5'
Despite these obligations, medications are not equally accessible to all members of the
population within the U.S.1 52 Medication accessibility is a significant problem.153 In a
study comparing the U.S. to four other developed nations, the country ranked last for patients' ability to afford
prescriptions.154 As of 2006, 23% of U.S. citizens could not afford to comply with prescriptions and medication
inaccessibility is increasing.1s
Poorer individuals are disproportionately affected.156 However, it is a systemic problem reaching beyond indigent
portions of the population.157 Unfortunately, the government is not acting sufficiently to assist economically
disadvantaged groups.158
The situation is most dire for the marginalized populations the right to health doctrine expressly requires states to
protect.159 Troubling disparities currently exist in access based on income-level, gender, and ethnicity.160 Low-income
families are disproportionately unable to access medications, both due to lack of money and insufficient or nonexistent
insurance coverage.161 Ethnic minorities and women are more susceptible to the effects of prohibitive cost barriers than
the rest of the population.162 These facts reveal discriminatory medication accessibility.163 This widespread
inaccessibility of medications breaches the right to health doctrine under customary international law.164
1. The United States is Not Respecting, Protecting, and Fulfilling Medication Accessibility Pursuant to the Right to Health
Doctrine's Pursuant to General Comment No. 14, states must respect, protect, and fulfill the requirements of the right to
health doctrine.' 65
To respect the right to medicine accessibility as part of the right to health, countries must avoid any action or policy that
hinders access. 166 To protect this right, governments must implement policies to safeguard access and prevent third
parties from impeding accessibility.' 67 To fulfill the requirements, states must establish all necessary policies to ensure
medication accessibility.168 Countries must ensure low pricing for medications, or insurance to compensate for high
prices, such that all citizens can afford essential medications.1 69
The U.S. is not upholding the obligations to respect, protect, and fulfill the right to health
doctrine.170 Most notably, the United States violates the duties to protect and to fulfill medication accessibility.171 To
protect the entitlements under the doctrine, a state must prohibit third parties from preventing its fulfillment.172
However, the government has not implemented sufficient laws to protect individuals in the U.S. from excessive
pharmaceutical prices or predatory insurance tactics. 173 The only national protections currently in place focus exclusively
on the most impoverished individuals, the disabled, and the elderly.174 Therefore, the U.S. does not currently uphold the
duty to protect medication accessibility under the right to health doctrine.
Pursuant to the obligation to fulfill the right to health, the government must establish a national health plan to ensure
medications are affordable and accessible to all, without discrimination.175 Some argue that the U.S. meets the duty to
fulfill through the creation of Medicare and Medicaid programs.176 However, this position ignores the fact that many
individuals do not benefit from these systems and still cannot access medications.177 Additionally, private insurance plans
are currently insufficient.178 Through inaction, the U.S. thus violates the obligation to fulfill the right
to health doctrine in addition to the obligation to protect it. 179
It is not yet clear how the Patient Protection and Affordable Care Act will affect pharmaceutical prices and affordability.
However, pharmaceutical manufacturers preemptively increased prices to avoid decreased profits.180 This signals that
insurance and pharmaceutical companies may attempt to circumvent the efficacy of the
reform act. Without a public insurance option, the government's efforts will likely prove
insufficient to correct the accessibility predicament. This is illustrated by the Congressional Budget
Office's expectation that twenty-three million nonelderly residents will be uninsured in 2019.181 Illegal residents only
account for two-thirds of this figure.182 Thus, millions of legal residents will remain uninsured.
Furthermore, the reform act may potentially exacerbate the problem of impoverished and unhealthy individuals
shouldering a disproportionate burden of health care costs. 183 Only a public option could guarantee universal coverage
and the lowest possible costs. 184
2. The United States is Unwilling, Not Unable to Uphold the Obligations Imposed by the Right to Health Doctrine
Economic considerations play a role in implementing the doctrine.185 Therefore, a state only violates its obligations when
it is unwilling, not unable, to comply.186 This suggests a balancing test to determine a reasonable
level of action: weighing a nation's economic strength and ability against the measures it
takes to ensure the public can access health care services. 187 If the state does not attempt to fulfill
obligations to its full capacity, it violates the doctrine's mandates. 88
In balancing the government's ability to enable medication access under the right to health doctrine against its efforts, the
scales are tipped heavily against the U.S.' 89 The violations of the doctrine established above are
based on a lack of will, not inability, to eradicate these problems. 90 Based on World Bank
indicators on governance, the United States ranks highly in governmental capability.' 9 ' The nation's
2009 gross domestic product ("GDP") surpassed $14 trillion, just behind the GDP of the entire European Union and more
than any other country in the world.192 Additionally, the government currently spends more than any nation per capita
on health care. 193 Yet, nations that spend substantially less are able to ensure universal health care access. 194 It is
therefore clear that the U.S. has the capability and resources to implement the measures necessary to ensure access to
essential medicines.
While General Comment No. 14 predominantly discusses "essential" medicines, the U.S. likely must ensure citizens can
afford most, if not all, prescribed medications.195 The General Comment requires states to uphold
health accessibility to their maximum capability.196 Based on the economic strength of
the U.S., the government must take significant action to ensure medication
accessibility for all.197 Balancing the economic strength and significant capability of
the U.S. to implement the obligations under the right to health doctrine against the
meager protections afforded, the U.S. clearly breaches the obligations set forth in General
Comment No. 14 and customary international law.198
*******
More ev – the US has formally recognized health as part of broader human
rights agendas it already accepts – anything short of deliberate, material
action to remedy lack of health insurance to millions is insufficient
McGill 2016 - Senior Fellow @ the Program on Human Rights and the Global Economy @ Northeastern U School
of Law
Mariah and Gillian MacNaughton, "THE STRUGGLE TO ACHIEVE THE HUMAN RIGHT TO HEALTH CARE IN THE
UNITED STATES," 25 S. Cal. Interdis. L.J. 625
The right to health is also subject to human rights principles that are specific to economic and social rights, including
progressive realization and maximum available resources. n68 These principles derive from article 2(1) of the ICESCR,
which requires state parties to the Covenant to take steps, to the maximum of their available resources, to progressively
realize all the rights in the ICESCR. n69 The CESCR has explained that "while the Covenant provides for progressive
realization and acknowledges the constraints due to the limits of available resources, it also imposes various [*635]
obligations that are of immediate effect." n70 One of the immediate obligations is that governments
must guarantee nondiscrimination in the exercise of rights. n71 Another is the immediate
obligation "to take steps" that are "deliberate, concrete and targeted as clearly as possible
towards meeting the obligations recognized in the Covenant." n72 In terms of using maximum
available resources to realize the right to health care, the government has an array of strategies at its disposal including,
among others: revenue raising through taxes and commercial activities, improving efficiency in government operations,
ensuring budget allocations are directed to the realization of human rights rather than other endeavors, monitoring
expenditures to ensure that allocations are spent efficiently and as intended, and preventing corruption and other abuse of
government funds. n73 In sum, the right to health care encompasses a bundle of rights -
including entitlements and freedoms - that give people a fairer chance of living a healthy
life. n74
Although the right to health is recognized in many international human rights treaties
and in the majority of national constitutions around the world, n75 the United States has not
ratified the ICESCR, which includes the most broadly applicable provision on the right to health. Further, the
U.S. Constitution does not include a right to health generally or a right to health care in
particular. Nonetheless, the U.S. government has some obligations to recognize a right to
health. First, as a signatory to the ICESCR, the U.S. government must "refrain from acts
which would defeat the object and purpose" of the treaty. n76 Second, the U.S. government
has human rights obligations, including economic and social rights, under the UN Charter, the
Universal Declaration of Human Rights, and international customary law. n77 Every four
years, the U.S. government must report to the UN [*636] Human Rights Council for the Universal Periodic Review, on its
progress in implementing these rights, including the right to health care set out in the Universal Declaration of Human
Rights. n78 In its 2010 report to the Human Rights Council, the U.S. government acknowledged its obligations for the
right to health care by devoting five paragraphs to the PPACA, maintaining that the Act would expand health insurance to
thirty-two million people in the country. n79 Moreover, in response to Cuba's recommendation that the
U.S. government "ensure the rights to food and health of all who live in its territory," n80
the U.S. government stated:
We are a non-party to the International Covenant on Economic, Social and Cultural Rights, and
accordingly we understand the references to the rights to food and health as references
to rights in other human rights instruments that we have accepted. We also understand that
these rights are to be realized progressively. n81
As such, the U.S. government recognized its obligations for the right to progressive
realization of the right to health, including the right to health care. n82 In this light, the next
Section analyzes the PPACA under the framework of the international human right to health care.
Us noncompliance spoils the international system – direct and enforceable
judicial incorporation is key
Saito 2 [Natsu Taylor, Professor of Law, Georgia State University College of Law, “MID-ATLANTIC PEOPLE OF COLOR
LEGAL SCHOLARSHIP CONFERENCE: The Plenary Power Doctrine: Subverting Human Rights in the Name of
Sovereignty”, 2002, lexis]
Advocating the incorporation of international law into U.S. jurisprudence does not
suggest that those currently subject to the plenary power doctrine should not benefit
from equal protection under the Constitution. It is, instead, an argument that expanding
intraconstitutional protection is insufficient. Not only have intraconstitutional
remedies proven themselves to be inadequate, but limiting those subject to U.S.
jurisdiction to such remedies in and of itself violates international law . This is due to
the domestic doctrines that "override" international law and because the solution presumes that the
United States has legitimate jurisdiction over these peoples. Further assimilation of those regarded as
"other" into the U.S. polity may not be their choice, as illustrated by Puerto Rican opposition to statehood and the long
history of Indian resistance to incorporation into the American polity. As Judge Cabranes asserted, "powerlessness is what
colonialism is all about. And decolonization in all its varieties--whether it is national independence, autonomy or free
association, or political integration into the metropolitan state on the basis of equality--is everywhere supposed to be the
antidote to this historical political impotence." n362 Most importantly, the way in which decolonization occurs should be a
choice for the colonized, not the colonizers, to make.
The best solution to the many violations of international law occasioned by the U.S.
government's invocation of plenary power remains the actual incorporation of international law
into U.S. jurisprudence . This is not to imply that legal changes alone will solve these problems. Instead, the
Supreme Court's plenary power decisions "are not the ultimate determinants of the reproduction of the colonial condition.
The reproduction of the relationship of subordination that colonialism entails is the resultant of diverse factors that have
restructuring the
legal paradigm within which the United States operates would go a long way toward
reversing this process of reinforcement because real decolonization and protection
of fundamental human rights requires a jurisprudence that explicitly
incorporates international law.
served to reinforce each other in a multidimensional process." n363 Nonetheless, [*1174]
A first step would be to recognize that American jurisprudence comprises both intraconstitutional law and the
extraconstitutional exercise of jurisdiction under the plenary power doctrine because American law accompanies U.S.
jurisdiction. n364 The law has followed the flag, even if the Constitution has not. Where the courts have invoked the
plenary power doctrine, constitutional rights have not been protected, nor has the global rule of law been adhered to,
despite the Constitution's specific directive that the law of nations is part of the supreme law of the land. n365 In fact, it
appears that the plenary power doctrine is invoked precisely to avoid otherwise applicable domestic and international law.
n366 Even Justices White and Brown, writing for the majority in Downes, acknowledged that all persons have some
fundamental or "natural" rights, n367 yet the Supreme Court has never identified the law that protects such rights.
Individuals, communities, and nations have been and continue to be damaged and destroyed by the government's exercise
of plenary power.
Because the Constitution was not designed to n368 and does not, in fact, protect all persons within the jurisdiction of U.S.
courts, we must acknowledge both that the plenary power doctrine is a significant part of American jurisprudence and that
the United States has obligations under [*1175] international law to all persons under its jurisdiction. n369 A first
step is recognizing that American law encompasses not only a large body of statutes, common law, and
judicial decisions, which fall within the parameters of the Constitution, but also the law that is created and
enforced by the U.S. government and has been declared by the Supreme Court to be essentially unconstrained
by the Constitution. To the extent the latter is actually law and not simply the exercise of raw power, we
must insist that it be effectively constrained by the enforcement of
international law in U.S. courts . This would preserve the United States' claim to be
a "nation of laws;" to do otherwise makes us all "complicitous in a vestigial colonialism"
n370 which elevates "might makes right" to the status of judicial doctrine.
The U.S. is already in compliance with the right to education
Kalantry 10 (Sital Kalantry is Associate Clinical Professor of Law, Cornell Law School, J.D., University of
Pennsylvania Law School; MsC, London School of Economics; A.B., Cornell University. •* Jocelyn E. Getgen is Women
and Justice Fellow, Cornell Law School, J.D., Cornell Law School; M.P.H., Johns Hopkins Bloomberg School of Public
Health; B.A., Cornell University. ***Steven Arrigg Koh is Law Clerk to the Honorable Carolyn Dineen King, United States
Court of Appeals for the Fifth Circuit. J.D., Cornell Law School; M.Phil., University of Cambridge, England; A.B., Harvard
University. “Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to
Education in the ICESCR.” Human Rights Quarterly 32 (2010) 253-310.
http://kalantry.lawschool.cornell.edu/files/2017/05/Enhancing-Enforcement-of-Economic-Social-and-Cultural-RightsUs-1uaf020.pdf)
Despite these gaps, the right to education remains one of the most important, universal, yet
complex rights in international human rights law.34 The right to education is a "multiplier"3 " or
"empowerment" right36 as well as an essential means to promote other rights,37 the enjoyment of which enhances all
rights and freedoms while its violation jeopardizes them all.3 8 The denial of the right to education "leads to compounded
denials of other human rights and perpetuation of poverty."39 Even in the United States, where ESCRs are
not universally accepted, many state constitutions guarantee the right to education,4 °
recognizing that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity
of an education."41 Moreover, according to the US Supreme Court, once a state assumes the
duty to provide education, it "is a right which must be available to all on equal terms." 4 2
The Court has found that the right to education "is not only a kind of idealistic goal ... but
a legally binding human right.., with corresponding obligations of States under
international law."43 Several key international instruments also mention the right to education, including those
relating to specific groups, such as children, racial minorities, and women, 44 but the ICESCR provides the most
comprehensive protections of the right.4 As such, we focus our study on the ICESCR. 46
Suspect Class Plank
They don’t allow court challenges – no solvency – no redress of violations
2ac state courts cp
Reject uniform state court fiat --- lack of a literature base produces unfair
debates since it’s impossible to find DAs and solvency deficits to the CP AND
kills topic education by privileging discussions that are wholly irrelevant
outside debate
Perm – do both – shields any net benefit by allowing blame to center on the
state courts – any federal follow on argument is also a reason they link to
the net benefit
Doesn’t solve either advantage – signaling is unique to SCOTUS and the
federal government – key to federal ilaw decisions and spillover of positive
rights
Banks 8 [Christopher, Ph.D. in American Government from the University of Virginia and a J.D. from the University of
DaytonAssociate Professor of Political Science at Kent State University, 2008, “Judicial Policymaking and the U.S.
Constitutional Commitment to (Economic) Social (and Cultural) Rights of Education in Comparative Perspective,”
http://citation.allacademic.com/meta/p_mla_apa_research_citation/2/6/8/6/2/p268622_index.html]
Insofar as the U.S. Supreme Court may be perceived globally as resistant to
guarantying social rights in education, the domestic political controversies over racebased initiatives and equality of funding in educational cases may be an impediment to
recognizing analogous ESC rights in countries that may adjudicate them in
the future . Although U.S. state governments have exerted more leadership in the area by putting more affirmative
duties on legislatures to provide equal and adequate educational resources, the global community is unlikely to take as
much [end page 23] notice of what is happening politically and legally in the fifty states. If a global awareness
does not emerge, then any advancements of socio-economic rights in the area of
education by U.S. state courts may have little impact on foreign jurisdictions, or
international human rights courts, if and when they look for guidance in
precedent. That prospect makes what the Supreme Court of the U nited S tates does
in its cases even more important, especially if one plausibly concludes that the high
court ought to be a leader in setting an example in regards to the advancement basic
human rights, including the right to receive an equal education (Jheelan 2007; Aka 2006). In the end, political
factors, including rival ideological judicial philosophies and role conceptions in U.S.
courts, along with the inherent institutional constrains courts face in making social
policy, are countervailing pressures that will endure, but must be overcome, so that there will
be the universal recognition of a social right of education as envisioned by the ICESCR protocol.
Dispersed authority creates a weak and individualized right
Ruger 16 [Jennifer Prah Ruger, Perelman School of Medicine and School of Social Policy and Practice, University of
Pennsylvania, “The health capability paradigm and the right to health care in the United States”, Theoretical Medicine and
Bioethics, August 2016, Volume 37, Issue 4, p. 275–292]
Creating and fulfilling a
right to health care means institutional control over, among other things,
assuring quality, equal access, and cost control. But negative rights dominate the American moral and
legal ethos and typically trump government reform efforts. One deleterious result of this dysfunctional
legal and moral melange is atomized, non-standard and individualized care. For
example, in medical malpractice, multiple and varied standards exist, differing by practice mode,
geography, medical training, and other factors. These varying standards yield medical liability rules that
sometimes ignore optimal or evidence-based standards of care and protect physician and patient autonomy from
institutional control. Even the federal budgetary commitment to health security in Medicare encompasses wide variation
in utilization and treatment costs. Studies at the Dartmouth Atlas of Health Care have found variation in Medicare
costs per patient in different states in the U.S. after controlling for local price differences
[28]. American moral norms and legal doctrines—dispersed medical authority, individualized
physician and patient judgment, scattered accountability with significant latitude for health care
profits—prevent the development of decisional authority among government actors and
thus block the institutional control that a right to health requires. Without it, standardization,
quality control, equal access guarantees, and cost control in American health care are
doomed.
This model of dispersed authority effectively blocks a universal right to health
care in the United States; it is also unsustainable. Diffused therapeutic authority in the American
health care system is worrisome both to system costs and patient outcomes . The growth in
U.S. health care costs as a percentage of the Gross Domestic Product, the gaping variations in access and quality, and the
high medical error rates will unravel the system and cause ever-growing human suffering. But research suggests that
outcomes will improve and costs will drop if we implement systems-based approaches and evidence-driven standards of
care [29]. Yet, efforts to standardize care and use evidence-based guidelines meet determined opposition. The 2012
Supreme Court challenge to the ACA, for instance, objected largely to perceived intrusions on individual autonomy in
health care decisions.
The American managed care revolution taught clear lessons about the difficulty of centralizing health care management.
Prospective utilization review, payment reform, and even salaried physicians all met opposition. Federal regulation and
restrictions were limited at best, as the public, patients, and physicians all opposed them. The institutional and normative
context of American health care did not make room for the managed care model, and the accountable care organizations
of the ACA will probably struggle as well. Moreover, the ACA’s DHHS regulations give states wide discretion in
interpreting ACA provisions. Thus, as in Medicaid, differing state insurance regulation regimes and resistance to uniform
standards are likely. The equity in essential benefits [30] and the optimal standards of care basic to a right to health care
seem distant and improbable.
Institutionalizing a right to health care comes up against our time-honored deference to
states. Without federal authority to regulate health care, from patient safety to optimal standards to
cost control, a national right to health care is impossible. The English National Health Service locates
centralized control in various national organizations and agencies. In the United States, regulatory path
dependence, congressional deference to states, and the absence of constitutional positive
health care rights thwarts the achievement of horizontal and vertical equity goals. The ACA,
like Medicaid and SCHIP, provides for state discretion in implementing federal programs. States may provide
widely varying levels of coverage and funding; they may experiment or revise financing and
delivery models; they may choose whether to cover a spectrum of specific therapies and
procedures [31]. Thus, strikingly different Medicaid programs have evolved across the country. State spending
per aged enrollee spans from $10,518 in North Carolina to $32,199 in Wyoming [32].
The classical American constitution of negative liberty and unchecked individual autonomy is an atavistic conceptual
framework. This submerged constitution works against evolving statutes providing for
positive health care rights [12]. The negative liberties doctrine fires opposition to the ACA as that opposition
focuses on, among many things, barring the government from the sacrosanct physician-patient relationship and
protecting individual autonomy. But if horizontal equity is to be achieved, we must implement the very ACA access
provisions that the submerged constitution blocks.
In its landmark Hobby Lobby decision, the Supreme Court wrongly injected itself between a majority of Americans and
the health access they favor [33]. Two fundamental and opposing features of American constitutional commitment
confronted the Court. On the one hand was the U.S.’s long tradition of favoring religious prerogatives above general
regulations, and on the other, an emerging but still incomplete normative consensus that all Americans share basic health
care rights. The claims of Hobby Lobby stores under the Religious Freedom Restoration Act accord with the negative
liberties of individual autonomy, freedom from government interference, and rights to privacy, but they run counter to
expanding principles of equal access and fair distribution supporting federal essential health benefit mandates.
A thin 5-4 majority ruled for Hobby Lobby’s claimed religious exemption, thus enshrining near-absolute religious freedom
and undercutting universal health care access in the United States. Although the Court described both interests as
compelling, it rigorously examined the government’s mechanisms for expanding access even as it refused to scrutinize the
Hobby Lobby claims. The Court did not examine the legitimacy or even the sincerity of Hobby Lobby’s attenuated interest
in avoiding payment for insurance that might be used to purchase contraception.
With this case, these five justices made several important—and controversial—legal rulings, which will impact future cases
concerning a right to health care. The Court conceded that creating a universal right to
contraception is a “compelling interest” [34], but held that the employer mandate is not
the “least restrictive means” of accomplishing it, because the government could have
exempted religious employers and placed the mandate directly on insurance companies.
This ruling means that HHS must now determine whether it will require no-cost contraceptive coverage in policies sold to
religious, for-profit employers like Hobby Lobby. By stating that courts should not try to assess the religious sincerity of
companies objecting to ACA mandates, the Court has opened the floodgates to future litigation over health care rights.
The Hobby Lobby decision is the fruit of the fragmented American health care system,
which variously delegates and imposes fundamental duties incrementally on many
different public and private actors. The Court was correct on one point: if, in fact, universal access to
contraceptives is a compelling interest, then the federal government should be responsible for providing it and should
offload that responsibility to private parties. This clash of public and private values results inevitably
from our systemic reliance on private employment-based health insurance. Notably, the
two Supreme Court cases dealing with the ACA—the ruling on the individual mandate in 2012 and the
Hobby Lobby ruling—both arise from the American health governance’s devolved structures . A
single-payer system would obviate both issues. Single-payer system advocates often point out the promise of reduced
administrative expenses, in contrast to the current fragmented regime. The Hobby Lobby litigation exposes yet another
cost of fragmentation and delegation: universalizing programs are difficult and costly if a diverse array of private actors is
to carry them out.
Policy assessment among the public: norms and values
To supplant the current submerged constitution, a new health care constitution will need to be
durable, protected against change by slim majorities. It must have the strength to trump policies
when they work against health equity. It must allocate authority structurally, protect
fundamental rights, and undergird institutional decision makers who, for their part,
must conform to it. A constitutional amendment of a right to health or a right to health care with these attributes
would accord with traditional constitutional doctrine. This ambitious constitutional task will require non-judicial
institutions, most especially the American public itself, to debate, construct the amendment, and advocate for enactment.
The HCP can offer some of the constitutional content for this task. But a health justice theory must go beyond a morally
legitimate conception of the good to provide a compelling framework for structuring its political legitimacy and propelling
its implementation through political processes and social institutions. Thus, while the HCP argues for relieving shortfall
inequalities in central health capabilities and doing so efficiently, it also strives for a balance between state action to
achieve these goals and individuals’ freedom from interference.
Members of society can, through public reasoning and democratic processes,
internalize new public moral norms, embracing redistribution and state oversight
and thus providing political legitimacy to this goal. This is the challenge. To achieve
national health policy changes legitimately and democratically, citizens must commit to creating
social and political institutions ensuring health equity for all. Policy actors (both political
and non-political) must internalize norms themselves and create coalitions around them.
The HCP uses a social agreement framework that acknowledges that values and norms operate at multiple levels of
generality and degrees of internalization. It thus provides a clearer understanding of the way norms
combine to construct a basis for reform.
Politicization crushes solvency -- state judges are elected -- federal oversight
is key
Brown 07 [George D., Professor of Law, Boston College Law School, 10/11/2007, Political Judges and Popular
Justice: A Conservative Victory or a Conservative Dilemma? ,
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1212&context=lsfp]
Thus, at the moment, parity prevails. However, as the quote from Stone indicates, that rests on current perceptions of the
state courts. Those perceptions could change. Professor Bator stated the matter succinctly: “When mistrust of the
state courts is justified and endemic, federal supervision must be
strengthened .”117 For him, “If we are fundamentally suspicious of the state court system – if the central problem
continues to be the problem of mistrust – then the ‘full and fair opportunity’ formula will not do.”118 Although it arose in
the context of federal court interference with state administrative proceedings, Gibson v. Berryhil119 is instructive. There
were two different types of optometrists in Alabama, but the board that regulated the profession was composed of only
one group. In the face of abstention arguments, the Supreme Court upheld the propriety of a federal court challenge to a
pending disciplinary proceeding. Although the case might be viewed as context based, an example of the “full and fair
opportunity” doctrine, it is clear that the Court saw the board as structurally incapable of rendering an unbiased judgment
against a class of parties.120 Gibson could be an indication of far broader things to come in the context of state judiciaries.
politicization phenomenon could lead to generalized mistrust. It
is no coincidence that most influential critique of the parity-based doctrines – written thirty years ago by
Professor Neuborne121 – focuses on the election of state judges as a reason for mistrust.122
Current developments could be seen as leading to an unfair judiciary: judges who have
prejudged cases, and favored litigants 21 based on campaign contributions. On a deeper level,
What I have referred to here as the
mistrust can stem from erosion of the ideal of the state courts as different from the political branches. Recall that a central
goal of the challengers is to have all elections treated alike – both because of the commands of the First Amendment and
the view that judges are policymakers just like legislators.123 In a remarkable development, four Supreme Court
justices recently voiced concern about the effects of politicization on state courts .124 They
noted polling data that show “fear that people will lose trust in the system,” and concern that
“[ c]ampaign contributions and political pressure will make judges
accountable to politicians and special interest groups instead of the law and
the Constitution.” 125 A core issue is whether the state judiciary can protect individual
rights. As we move toward judicial elections that yield judges who look like legislators, the
question inevitably arises whether those judges can protect citizens from those
legislators – and the officials who execute their laws. The challengers will have won a pyrrhic victory
if their litigation successes lead to a state judiciary which the federal judiciary does not
trust. Protecting rights might be seen as a relatively small proportion of the state courts’ workload, but it is a vitally
important one – both symbolically and practically.
No north korea war – their ev is hyperbole
Kang 8/11 - Director of Korean Studies Institute @ USC
David, "Are we on the brink of nuclear war with North Korea? Probably not.," Aug 11,
https://www.washingtonpost.com/news/worldviews/wp/2017/08/11/are-we-on-the-brink-of-nuclear-war-with-northkorea-the-consensus-is-probably-not/?utm_term=.89cf582d9db3
“This time isn’t any different from the North Korean side — they haven’t done that much different
than in the past. Kim Jong Un may
be testing more missiles, but essentially their behavior is not
any different. The big thing we keep missing about North Korea is that their threats are
always the second half of a sentence, and we ignore the first half. North Korea
consistently says, 'If the United States attacks us first, we will fight back.' The only thing that
gets reported in the U.S. media is the second clause, not the first. So their comments are clearly deterrent in
nature, and the Guam 'threat' was exactly along those lines. So we always overhype the
North Korean threat, because it is absolutely not a threat of preemptive or first strike. For the U.S., the current
administration might be speaking perhaps a little more flamboyantly than previous administrations, for sure. But
essentially what they are saying is no different than any previous administration has said: 'If the United States
is
attacked first, we will fight back, as well.' The message is one of deterrence, not first
strike. Both sides are reiterating that they will fight back if attacked. Deterrence works,
because both sides believe the other. It is widely accepted that North Korea will strike at
American targets somewhere in the Pacific if we attack them first, almost nobody doubts
that. For their part, the North Koreans fully expect a massive American attack at some point,
they believe us. So deterrence holds, because of the costs involved. It’s not pretty, but it works.”
2ac gerrymandering da
The plan creates the most progressive doctrine in decades, citing i-law, strict
scrutiny for wealth as a subject class, and due process establishing
fundamental rights --- Kennedy’s legacy is tanked with conservatives if he
votes for the aff, so he may as well try to go out as a liberal hero because
there’s no way he could save face by going back on gerrymandering alone
Tons of controversial cases coming
De Vogue 10-2 — (Ariane De Vogue, Supreme Court Reporter @ CNN, "Supreme Court kicks off blockbuster
term", CNN, 10-2-2017, Available Online at http://www.cnn.com/2017/10/02/politics/supreme-court-blockbuster-casesto-watch/index.html, accessed 10-8-2017)
A full-strength Supreme Court will take the bench Monday for what could be the most consequential term in decades, as
the ideologically split justices consider cases as diverse as religious liberty, immigration, cell phone privacy, voting rights
and possibly the legality of President Donald Trump's controversial travel ban.∂ " There is only one prediction that is
entirely safe about the upcoming term, and that is it will be momentous ," Justice Ruth Bader Ginsburg said at
an event at Georgetown Law recently.∂ The justices spent most of last term with only eight members rendering narrow
opinions -- at times -- in an attempt to ward off 4-4 splits.∂ But that's all over now.∂ That means there are five
conservatives and four liberals on the bench, with Justice Anthony Kennedy resuming his post as the swing vote from the
conservative- to liberal-leaning side. Sources say he has been seriously considering retiring, and liberals fear that their last
remaining chance at a win on issues -- like LGBT rights -- might rest with him.∂ Here are the big issues this year:∂ Travel
ban∂ Leading the docket, until recently, was a challenge to Trump's signature policy: the travel ban. The justices were
scheduled next week to hear oral arguments and decide whether the President was legally justified when he temporarily
blocked travel from several Muslim-majority countries, citing national security concerns.∂ Challengers argue that the
executive order violates the the Constitution. They say the President was motivated in part by religious animus and point
to some of the things Trump said during the campaign calling for a Muslim ban.∂ "The President has claimed limitless
authority to exclude any alien he wishes," Neal Katyal, the lead lawyer for Hawaii, wrote. "This court has the power and
the duty to police these excesses."∂ But the administration says the White House has the authority to act to restrict
immigration.∂ "The Constitution and Acts of Congress confer on the President broad authority to suspend or restrict the
entry of aliens outside the United States, when he deems it in the Nation's interest," Acting Solicitor General Jeffrey Wall
wrote in court papers.∂ Late last spring the justices allowed part of the travel ban to go into effect, pending appeal, for
foreign nationals who "lack any bona fide relationship with any person or entity in the United States." They were
scheduled to hear oral arguments October 10 -- but that's now been postponed.∂ The twist: Last month, the President
replaced a major provision of his controversial March executive order with new restrictions that have yet to go before any
court.∂ Trump administration announces new travel restrictions∂ Now, the justices must decide whether they should hear
the challenge, or send the case back down to the lower courts to take a fresh look.∂ Immigration∂ The court this week will
rehear two immigration-related cases will be watched closely for tea leaves of what justices are thinking on the travel ban,
although they don't pertain to it specifically.∂ Monday, the court will rehear a case concerning mandatory deportation of
lawful permanent residents for criminal convictions.∂ The Sessions v. Dimaya case was argued before the court in
January, before Gorsuch was nominated and confirmed. At the end of June, the justices signaled they were divided 4-4 on
at least some aspects of the case and wanted Gorsuch to weigh in.∂ Tuesday, justices rehear another immigration related
case, Jennings v. Rodriguez. The case was brought by a class of immigrants -- some who sought entrance at the border,
others lawful permanent residents -- who are fighting removal and arguing that they cannot be held in prolonged
detention. After six months of detention, they seek hearings to prove that they are neither a flight risk nor a danger to
society.∂ "Both cases implicate the scope of the government's authority over different classes of immigrants in ways that
won't directly bear on the travel ban litigation, but could provide important clues into what the key justices are thinking,"
said CNN legal analyst and University of Texas Law School professor Steve Vladeck.∂ Voting rights and
gerrymandering∂ Tuesday, justices will tackle a case that could reshape electoral maps across the country.∂ At issue is
partisan gerrymandering -- or the length to which legislators go when they manipulate district lines for partisan
advantage. Democratic voters in Wisconsin are challenging maps they say were drawn unconstitutionally to benefit
Republicans.∂ Wisconsin voter hopes Supreme Court will revolutionize map drawing∂ While the Supreme Court has a
standard limiting the overreliance on race in map drawing except under the most limited circumstances,
it has never been successful in developing a test concerning the overreliance on politics .∂ Wisconsin, in its
arguments, says that both the challengers have no power to bring such a claim and that the issue should be decided not by
the judiciary but the political branches.∂ Redistricting is an issue close to former President Barack Obama, who has vowed
to dedicate part of his post-presidency to the issue. Prominent Republicans such as Arizona Sen. John McCain and former
California Gov. Arnold Schwarzenegger have filed briefs in support of the challengers, arguing that the issue does not only
adversely impact Democrats.∂ "It's not a Democratic or a Republican issue," Schwarzenegger said in a recent conference
call," it's simply a power issue."∂ Another election law case, Husted v. Randolph Institute, will be heard in early November
dealing with Ohio's method of removing names from its voter rolls. A federal appeals court ruled that the program violates
the National Voter Registration Act.∂ Religious liberty∂ One of the most controversial cases of the term pits claims of
religious liberty against LGBT rights.∂ At the center of the case is Jack Phillips , who owns a bakery called Masterpiece
Cakeshop in Colorado. In 2012, he refused to make a cake to honor a couple's same-sex marriage, citing his religious
beliefs. Lower courts ruled in favor of the couple, citing a state anti -discrimination law.∂ Now Phillips , who calls himself
a "cake artist," is asking the Supreme Court to protect his rights, and he received a big boost last month from the Trump
administration.∂ "Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held
religious beliefs invades his First Amendment rights," acting Solicitor General Jeff Wall wrote for the Justice Department
in briefs filed to the court.∂ "The government may not enact content-based laws commanding a speaker to engage in
protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced
to write," Wall added.∂ Louise Melling, an ACLU lawyer representing the plaintiffs, says that the Masterpiece case is
"making a radical argument."∂ "When you look at it, they are saying there is a constitutional right, whether it's
rooted in speech or religion, to discriminate ," she said in an recent interview.∂ "A ruling for the bakery would have
implications far beyond LGBT people and would put in jeopardy our longstanding laws against discrimination," she said.∂
Cell phone privacy∂ The court will also hear a major case concerning privacy in the digital age when it
determines whether investigators need to obtain a warrant for cell tower data to track and reconstruct
location and movements of cell phone users over extended periods of time .∂ The case was brought by the
ACLU on behalf of two men who were arrested after a string of robberies in Michigan and Ohio. At trial, the government's
evidence included records from the defendants' phones that showed that the men used their phones within a close radius
to several robberies.∂ How the justices decide the issue could provide a framework for other issues such as facial
recognition technology and surveillance law.∂ Most courts have held that there is a diminished privacy interest in
this area because the information has already been provided to third parties such as phone companies.
Kennedy votes for gerrymandering
Daley 17 [David, Editor in Chief of Salon, Fellow for the Wilson Center for Humanities and Arts, University of
Georgia, 6/5/2017, “Will Justice Kennedy be the Supreme Court’s hero on gerrymandering? Don’t count on it”, Salon,
http://www.salon.com/2017/06/05/will-justice-kennedy-be-the-supreme-courts-hero-on-gerrymandering-dont-counton-it]
For more than a decade now, redistricting reformers have hunted down a silver-bullet democracy theorem – the
transparent, fair-minded standard that would conclusively demonstrate when a partisan gerrymander crosses the line.
The audience? One person: Justice Anthony Kennedy, still the Supreme Court’s decisive swing vote. Trouble is, the ending
is in more doubt than ever. A dedicated group of political scientists, law professors and more claim they have discovered
that gerrymandering miracle drug. It’s called the Efficiency Gap, and it works by measuring partisan asymmetry – or the
votes that savvy mapmakers “waste” when drawing district lines that either “crack” one party’s votes and divide them
among many unwinnable districts, or “pack” them as intensely as possible into as few seats as possible. The Efficiency Gap
is at the heart of Whitford v. Gill, a case from Wisconsin in which a panel of three federal judges found that Republicans
unconstitutionally gerrymandered the state legislature in their favor after the 2010 census. The judges took the nearly
unprecedented step of demanding lawmakers craft brand new maps statewide for 2018 legislative races. After years of
effort, Whitford is likely to be on the Supreme Court docket this fall. The justices could make that decision in private
conference as soon as early June. But here’s the twist: Is Justice Kennedy still concerned about partisan gerrymandering?
When a surprising coalition of justices delivered a landmark ruling against racial gerrymandering in late May, Kennedy
was on the other side. More discouraging for those who’d cast Kennedy as the gerrymander-slaying White Knight: The
decision he signed onto, written by Justice Samuel Alito, casts partisan gerrymandering as a time-honored political
practice – one of the very reasons why the Supreme Court has stayed away from a national standard. Let’s back up for a
moment. When the last major partisan gerrymandering cases reached the Supreme Court, back in the mid-2000s,
Kennedy, the longtime swing justice, sided with the conservative wing. In Veith v. Jubilerer, Kennedy voted with a 5-4
majority that turned aside an argument from Pennsylvania voters who claimed opportunistic GOP redistricting violated
their constitutional right to equal protection. That result was no surprise: The Supreme Court has consistently refused
to accept any constitutional standard when it comes to partisan gerrymandering ever since the founding of the country. So
when it came time to decide Veith in 2004, Justices Scalia, Rehnquist, Thomas and O’Connor had seen enough. They did
not think the Court belonged in the business of determining what defined an overly partisan gerrymander or mandating a
remedy. They were essentially ready to close the door for good. Kennedy, however, refused to go that far. He voted with
the Scalia bloc, but did not sign on to their opinion. Instead, in his own tight, rigorous concurrence Kennedy argued that
while the Veith plaintiffs failed to show a manageable standard, some future case might. Then he tantalized reformers with
breadcrumbs pointing to exactly what that standard would need to achieve to earn his support and allow judicial
intervention. It must be a “limited and precise rationale,” based on a “clear, manageable and politically neutral standard,”
that shows partisanship was “applied in an invidious manner” or in such a way “unrelated to any legitimate legislative
objective.” Kennedy presciently noted that while sophisticated new mapmaking software represented a potential threat to
democracy, “these new technologies may produce new methods of analysis that make more evident the precise nature of
the burdens gerrymanders impose on the representational rights of voters and parties.” If so, he concluded, “courts should
be prepared to order relief.” The justice could not have been more of a visionary: As new software and data sets made it
possible to sort voters surgically and turn district lines into firewalls – aided by hardened partisanship and clustering of
like-minded voters – the Republican REDMAP strategy reinvented the gerrymander after the 2010 census as a tool to lock
in control at all levels of government despite a deeply and nearly evenly divided country. One would imagine that Kennedy
might be more concerned than ever. But that might not be the case . The big surprise for most from last month’s
game-changing Supreme Court ruling on racial gerrymandering in North Carolina, Harris v. Cooper, might have been that
the justices redrew their own carefully etched ideological lines. Clarence Thomas joined the liberal wing in a 5-3 decision
that declared long-contentious North Carolina congressional districts to be unconstitutional racial gerrymanders. While
Thomas has often been the conservative least likely to side with the liberal justices, perhaps his reasoning could have been
expected. Thomas simply opposes using race data in districting, period. (Give him serious points for consistency: Thomas
has backed this principle whether the goal was creating safe Democratic seats in the ‘90s or, as in Harris, creating more
reliably GOP seats by packing minority voters into as few Democratic seats as possible. Report Ad No, the real story
wasn’t Thomas, an unlikely prospect for reformers on Whitford, but Kennedy. Kennedy was not only among the three
naysayers, but this time signed onto the dissenting opinion, written by Justice Alito. Alito carefully drew the line between
racial gerrymandering, which courts have disallowed, and partisan gerrymandering, which the Supreme Court has failed
to find unconstitutional. It’s not hard to imagine that he wrote knowing that Whitford was on the Court’s horizon – and
deftly trying to bring Kennedy to his point of view. As Alito wrote, “if a court mistakes a political gerrymander for a racial
gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected
representatives.” Partisan gerrymandering may be “unsavory,” Alito noted, and some might find it “distasteful.” But it
“dates back to the founding,” he argued, and the Court’s previous decisions have made clear that it is nevertheless allowed.
Vote no – the most restrictive interpretation of fiat is the aff is a 9-0 vote –
there’s no impact to Kennedy vote-swapping the plan
He will decide based on facts, not legacy concerns
Stern 17 – Mark Joseph Stern, writer for Slate (“Is Partisan Gerrymandering Dead?” Slate,
http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2017/10/will_gill_v_whitford_kill_partis
an_gerrymandering.html)
Tuesday’s arguments in Gill v. Whitford, a blockbuster challenge to partisan gerrymandering, raised a number of
fascinating questions. Will Justice Neil Gorsuch ever learn how to properly season a steak? Can Justice Stephen Breyer
survive a close brush with gobbledygook? Why does Justice Samuel Alito hate social scientists so much? And, most
importantly, has Justice Anthony Kennedy finally settled on a test to determine when political gerrymanders cross a
constitutional line? The answer to that last question—which will likely determine the outcome of Gill —wasn’t
totally clear at the close of arguments. What was apparent, however, is that a majority of the Supreme Court is disgusted
by hyperpartisan redistricting and eager to do something about it. That disgust may well be enough to strike
down the most extreme gerrymanders. But it probably won’t persuade the court to usher in a golden age of
democracy in which political redistricting is vanquished once and for all. At bottom, Gill is a case about democracy and
whether Kennedy will lend his vote to help save it (again). Partisan gerrymandering distorts democracy in a particularly
pernicious way: When legislators draw maps that strongly favor their party, they create a majority that is both entrenched
and endurable. Gill is a challenge to Wisconsin’s map, and the state provides an excellent example of this phenomenon.
While drawing maps in 2010, Wisconsin Republicans engaged in “packing and cracking”—sticking most Democrats in a
few safe Democratic districts and distributing the rest through safe Republican districts. This gerrymander has given
Republican legislators a massive unearned advantage. In 2012, Republicans won 48.6 percent of the statewide vote—and
60 out of 99 seats in the Wisconsin state assembly. In 2014, they received 52 percent of the vote and won 63 seats. In
2016, they received the same percentage of the statewide vote, and their majority crept up to 64 seats. Under this map,
Democrats have no real hope of regaining a legislative majority in Wisconsin. A huge number of state elections aren’t even
contested anymore; everybody knows the outcome in advance. And this isn’t a one-sided political question: In Maryland,
Democrats have similarly gerrymandered Republicans out of power. Increasingly desperate voters have turned to the
federal judiciary, imploring the courts to restore their right to cast meaningful votes. The judicial holy grail for
gerrymandering opponents is Kennedy’s concurrence in 2004’s Vieth v. Jubelirer. Kennedy wrote that truly excessive
partisan gerrymanders may run afoul of the First Amendment. This makes good sense . Consider Wisconsin.
When Republican legislators drew lines designed to diminish the power of Democrats’ votes, they were punishing these
voters for associating with, or expressing their support for, the Democratic Party. This kind of viewpoint-based burden on
freedom of expression and association would seem to run afoul of basic First Amendment principles. In Vieth, Kennedy
explained that he was thus prepared to strike down a political gerrymander , but not until he was provided
standards that are manageable and consistent . Gill is an attempt to provide those standards. The plaintiffs offer
several tests for the courts to use when gauging the reach of political redistricting, but they focus on two intuitive ideas:
political symmetry and the “efficiency gap.” Political symmetry simply measures the equal ability of both parties to
translate popular support into representation. The efficiency gap is a bit more complicated, but it basically asks whether
election results are unusually lopsided—whether the victorious candidate wins by so many votes that her opponent never
had a real shot. Wisconsin Solicitor General Misha Tseytlin kicks off arguments by reminding the court that it has never
invalidated a map on the basis of partisan gerrymandering. Kennedy promptly asks Tseytlin to respond to his First
Amendment theory, and Tseytlin dodges—leading Chief Justice John Roberts to explain it for him. It’s “pretty
straightforward,” Roberts says. “You, in your district, have a right of association, and you want to exercise that right of
association with other people elsewhere in the state.” Tseytlin warns Roberts and Kennedy that, no matter how appealing
that idea might be, it would “launch a redistricting revolution,” shifting the job of redistricting “from elected public
officials to federal courts.” Breyer isn’t so certain. “This is where I am at the moment,” he tells Tseytlin. “React to this as
you wish. If you wish to say nothing, say nothing.” He then walks Tseytlin through the partisan symmetry and efficiency
gap tests. “It’s not quite so complicated as the opposition makes it [seem],” Breyer concludes. These tests could, at least,
detect “extreme outliers.” Why isn’t that manageable? Tseytlin responds that these tests would force federal courts to
engage “in battles of the hypothetical experts” using a “conjectural, hypothetical state of affairs inquiry.” Justice Elena
Kagan responds that “legislators are able to [draw gerrymandered maps] pretty easily,” using “extremely sophisticated”
techniques to entrench their majority. “This is not some hypothetical airy-fairy, we guess, and then we guess again,” she
says. “I mean, this is pretty scientific by this point.” In short: Legislators are using gerrymandering technology for evil.
Why can’t courts use it for good? Erin E. Murphy then takes over for Tseytlin at the lectern. She represents the Wisconsin
State Senate, where the Republican majority would very much like to stay in power. Kennedy promptly grills Murphy with
a sharp hypothetical: Imagine a law that compels legislators to draw maps that consider “traditional principles” but must
maximally favor one party. Would that be constitutional? And under what principle? Murphy ducks the query for several
minutes before an irked Kennedy eventually intones: “I’d like an answer to the question.” Murphy admits that such a law
might constitute “a First Amendment violation in the sense that it is viewpoint discrimination.” It’s an odd moment, since
she is effectively telling the justices that, yes, her client violated the Constitution, but, no, the court can’t do anything about
it. Justice Sonia Sotomayor seizes the moment to ask Murphy “what the value is to democracy from political
gerrymandering.” Murphy provides a gloriously nonsensical answer, asserting that “it produces values in terms of
accountability that are valuable so that the people understand who isn’t and who is in power.” “I really don’t understand
what that means,” Sotomayor deadpans. The liberal justices have eaten Murphy’s lunch, and she slinks off. Renowned
Supreme Court litigator Paul Smith is next up, and the conservative justices are keen to slap him right back down. Roberts
promptly dismisses partisan symmetry and the efficiency gap as “sociological gobbledygook.” Alito agrees, delivering an
acerbic monologue about the alleged inconsistency of social scientists. (“Was there a question there, your honor?” Smith
responds.) Breyer tries to help, acknowledging that the math behind these proposed standards might be “pretty good
gobbledygook,” but that the underlying idea is pretty logical. Gorsuch then jumps in to criticize Smith for proposing
multiple tests rather than sticking to just one. “It reminds me a little bit of my steak rub,” Gorsuch says. “I like some
turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each. And so what’s this court
supposed to do—a pinch of this, a pinch of that?” Gorsuch soon reveals his contempt for this entire endeavor. “Maybe we
can just for a second talk about that arcane matter, the Constitution,” he quips, then asks skeptically: “Where exactly do
we get authority to revise state legislative lines?” This question is somewhat startling, since even Justice Clarence Thomas
believes that courts must invalidate redistricting plans that run afoul of a constitutional command. Gorsuch is apparently
staking out a position on gerrymandering that’s so far to the right that he’s liable to teeter off the side of the bench.
Gorsuch’s vote might not matter much here, though, because Kennedy does not ask Smith a single question—a notable
silence following his grilling of Wisconsin’s attorneys. It’s always tough to guess what’s going on inside Kennedy’s head,
but the justice seemed disturbed by Wisconsin’s anti-democratic arguments and content with Smith’s answer to his
request for standards in Vieth. For Kennedy, the First Amendment is the keystone of self-governance—and partisan
gerrymandering is a frontal assault on voters’ right to freedom of association and expression. The justice has too much
respect for states’ rights to let courts meddle with minor gerrymanders. As he explained in Vieth, courts should only
intervene when “legislative restraint” has been totally “abandoned,” resulting in grievous harm to “the democratic
process.” Kennedy doesn’t want a redistricting revolution; he just wants a way for courts to sniff out
extreme, entrenched political gerrymandering . With Gill, Smith might have given him the tools he needs to do
precisely that.
Judicial PC is fake
Redish 97 [Martin, Professor @ the Northwestern University School of Law, Summer 97, Journal of Law & Politics,
13 J. L. & Politics 585]
The limited pie theory, as a justification, makes no sense because it assumes a kind of fungibility of
institutional capital that just doesn't comport with reality. How people feel about individual rights decisions
will not be determined by whether the Supreme Court has said anything about constitutional federalism. Reactions to
Roe v. Wade or Miranda v. Arizona are based on people's concerns about those decisions. What the Supreme Court
says or doesn't say about constitutional federalism will have little, if any, effect on reactions to those decisions.
No internal link --- automatic review rules ensures SCOTUS will hear more
gerrymandering cases year after year so no particular ruling is key
---there are 4 gerrymandering cases currently on this year’s docket alone
Economist 1/15 [The Economist, January 15, 2018, “The Supreme Court takes on two redistricting cases from
Texas,” https://www.economist.com/blogs/democracyinamerica/2018/01/monstrous-gerrymanders]
THE SUPREME COURT rejects about 99% of the 7,000 to 8,000 petitions that reach it each year. But when it comes to
cases involving reapportionment—challenges to how states draw lines for congressional or state legislative elections—the
justices can’t be quite so choosy . Congress has chipped away at the cases subject to mandatory review by the Supreme
Court, but it has kept it for redistricting cases where an election looms and time is of the essence. If skewed electoral maps
may need to be redrawn, a special three-judge federal court is convened to hear the case; an appeal goes right to the
Supreme Court, bypassing America’s 13 circuit courts. This quirk of Supreme Court procedure explains why the justices
have now agreed to hear four gerrymandering cases this term, including two added on January 12th. These recurring
matters may be their least-favourite to resolve . In 2016, Justice Stephen Breyer told lawyers in a racialgerrymandering dispute that he had hoped his majority opinion in a similar 2015 case “would end these cases in this
court”. But Alabama Legislative Black Caucus v Alabama “certainly doesn’t seem to have” done so, Justice Breyer rued
then. And, apparently, 2017 rulings in Bethune-Hill v Virginia State Board of Elections and Cooper v Harris haven’t done
so either. The latest disputes over electoral lines come from Texas and are, in election-law expert Rick Hasen’s words,
“ crazy with details ”. Both cases ask whether race improperly influenced the state legislature’s map-making and both—
to make things more confusing—are styled Abbott v Perez. (Greg Abbott is the governor of Texas; Shannon Perez is an
Hispanic voter who lives in Bexar County.) But the two cases address two different maps—one for congressional districts,
another for state legislative districts—and involve slightly different claims of racial unfairness. Last August, a ruling by a
three-judge panel in San Antonio held that two of Texas’s 36 congressional districts were drawn to minimise minority
voting power, in violation of both the Voting Rights Act and the Fourteenth Amendment guarantee of the “equal
protection of the laws”. In District 27, covering Corpus Christi, Texas’s 8th-largest city, Hispanics were “intentionally
deprived of their opportunity to elect a candidate of their choice”. District 35, meanwhile—a skinny, long district
resembling the nation of Chilé—showed signs of an “impermissible racial gerrymander", line-drawing based
predominantly on racial considerations. Texas countered that its gerrymander was merely partisan, not racial, but the
court roundly disagreed. Nine days later, on August 24th, the same federal court found that several state legislative
districts—on a map to elect lawmakers to the Texas House of Representatives—did not pass legal muster. Two districts in
Dallas were found to be “packed” with Hispanic voters, decreasing Hispanic voting power in nearby areas. Other districts
were specifically designed to “crack” Hispanic voter strength by parcelling minority voters into a number of districts where
their voice in each would be faint. The Texas legislature, the court concluded, aimed “to ensure Anglo control” of the vote
in these parts of the state. The remedy to these discriminatory maps, the court held, was a new set of maps to be drawn by
the legislature in a special session last autumn. But Texas quickly asked the Supreme Court to temporarily block those
orders, and, by a 5-4 vote, it did. Now the cases will get a full consolidated hearing on the merits, probably in late April, as
the justices wind down their 2017-2018 argument schedule. With these additions to the Supreme Court’s docket, late June
will probably bring a trio of highly anticipated decisions on the contours of gerrymandering in America. The justices have
already heard Gill v Whitford, a challenge to a partisan Republican-drawn gerrymander in Wisconsin, and they will soon
consider a partisan map favouring Democrats in Maryland in Benisek v Lamone. Those cases mark the justices’ first
opportunities in over a decade to decide whether maps drawn to marginalise voters from one party violate the
constitution—and will help resolve an especially brazen Republican effort in North Carolina to rope Democrats out of
contention for congressional races. Together with the race questions in Abbott v Perez, the justices have their hands full
clarifying the statutory and constitutional limits on electoral-map cartography. But it’s a safe bet that whatever the
court says this spring , it won’t be the justices’ last word on the subject—much to their chagrin .
*****
Or winners win
Laura Little 2k, Professor of Law – Temple University, Beasley School of Law, November, 52 Hastings L.J. 47, Lexis
Other scholars bolster Redish's position by pointing out that judicial review of both federalism and s eparation o f p owers
questions presents something of a self-fulfilling prophesy. Through review of these sensitive issues of power, the judiciary
bolsters its own position or amasses "political capital" and, thereby, legitimates its own power to engage in such
review . 237 The judiciary has therefore established [*98] itself as an effective watchdog to ensure that governmental
structures are functioning appropriately. n237. Perry, supra note 11, at 57 (Supreme Court has "amassed a great deal of the
political capital it now enjoys ... precisely by resolving problems arising under the doctrines of federalism and of the
separation-of-powers "); see also Archibald Cox, The Role of the Supreme Court in American Government 30 (1972)
(explaining that "history legitimated the power [of judicial review], and then habit took over to guide men's actions so long
as the system worked well enough").
Capital resilient --- Bush v. Gore proves
Bentley 7 [Curt, J.D. from Brigham Young University, Lead Articles Editor for BYU Law Review, Recipient of the
2007 Scholarly Writing Award for this article, "Constrained by the Liberal Tradition: Why the Supreme Court has not
Found Positive Rights in the American Constitution" Brigham Young University Law Review, 2007, vol 1721, lexis]
Diffuse support theorists cite public opinion polls, which show that support for the Court has remained remarkably high
and stable - especially in comparison with other political institutions - even during periods when the Court handed
down controversial decisions, in support of their hypothesis. For example, diffuse support theorists often cite the Court's
divisive decision in Bush v. Gore to show that diffuse support allows a court to weather a controversial storm of public
opinion. Many assumed that the Court's participation in a controversial political decision would reduce its reservoir of
diffuse support. Justice Stevens himself expressed the fear in his dissenting opinion: The endorsement ... by the majority
of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is
confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time
will one day heal the wound to that confidence that will be inflicted by today's decision... . Although we may never know
with complete certainty the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the
Nation's confidence in the judge as an impartial guardian of the rule of law. However, in actuality, studies in the
aftermath of Bush v. Gore have shown that the decision did not significantly affect public confidence in the Supreme
Court. Gibson, Caldeira, and Spence undertook a public opinion study in the aftermath of the decision and concluded that
the Supreme Court decision in Bush v. Gore did not have a debilitating impact on the legitimacy of the US Supreme Court.
Perhaps because the Court enjoyed such a deep reservoir of good will, most Americans were predisposed to view the
Court's involvement as appropriate and therefore dissatisfaction with the outcome did not poison attitudes toward the
institution.
Substantive rights turn the internal link --- inequality demoralizes the poor
so they won’t show up to vote and it’s useless anyway without campaign
finance reform
No timeframe for the internal link – even if the court rules against
gerrymandering, it requires action by congress to implement which won’t
happen till 2018 or 2020
Redistricting doesn’t revitalize democracy
Daley 17 [David, Editor in Chief of Salon, Fellow for the Wilson Center for Humanities and Arts, University of
Georgia, 6/5/2017, “Will Justice Kennedy be the Supreme Court’s hero on gerrymandering? Don’t count on it”, Salon,
http://www.salon.com/2017/06/05/will-justice-kennedy-be-the-supreme-courts-hero-on-gerrymandering-dont-counton-it]
Of course, when those winners rig the maps to help generate a decade-long advantage, and then suggest the other side
fight back at the ballot box, well, the only response to such circular reasoning is a rueful laugh. You might have heard one
from Wisconsin, where a majority of voters backed Democratic legislative candidates in 2012, but Republicans won nearly
two-thirds of the seats. Every district, red and blue alike, are now so hopelessly safe that 49 percent of state assembly races
last November had no major-party competition. Or perhaps it came from Michigan, where Democratic state house
candidates have won more votes in every election on these maps, but never come close to capturing the chamber. Or from
any of the bellwether states like Ohio, North Carolina or Pennsylvania, where swing seats these days have less swing than
Coldplay. Exactly one U.S. House seat has changed hands in those states during this cycle. That covers 141 races. The seatvote ratio is disturbingly out of whack in these states as well: Republicans hold a 35-12 House edge despite how closely
competitive the states are otherwise. A study last month by the Brennan Center for Justice, part of NYU’s School of Law,
found that most congressional gerrymandering is focused in seven states – Texas and those six swing states whose
delegations have been weighted red, including Pennsylvania, Michigan and North Carolina. The report argued that the
GOP controls 16 to 17 House seats due to its redistricting advantage – almost all of that advantage coming from seven
states, most of them swing states like Pennsylvania and Michigan where Republicans controlled all aspects of redistricting
and drew themselves these practically unbeatable lines. In states like that, the Efficiency Gap would be a useful tool to
address our specific gerrymandering problem. Report Ad But the Efficiency Gap test is not a panacea. If we want to restore
meaningful competition, fair representation and ensure that every vote counts, we need to enact genuine structural
reforms like larger, multi-member districts combined with ranked-choice voting. That would broaden the spectrum of
opinion in Congress, triple the number of newly competitive seats, and give nearly everyone across the country a say in a
congressional election that mattered. That’s how we take on the underlying fact that more than 85 percent of our
congressional seats are so safe, for one party or the other, that they can be called with nearly 100 percent certainty two
years before the election, based on partisan data alone. The big problem isn’t redistricting – it’s districting itself.
Perm do both – shields the link
Links to the net ben – both act, trump would take credit and it would be a
flip flop from current proposals
It doesn’t allow ilaw rulings – means it cant solve
2ac GOP GOOD DA
Dems will win the midterm – polling, retirements, special elections
Giroux 1/29 (Greg Giroux is an elections reporter for Bloomberg Government. “All Signs Point to Big Democratic
Wins in 2018.” https://www.bloomberg.com/graphics/2018-midterm-elections-preview/)
History, demographics and the national mood are pointing to one conclusion about the 2018
congressional races: Democrats are well-positioned to bring one-party government in Washington under Donald Trump’s
presidency to a screeching halt. There’s a confluence of evidence indicating a so-called wave
election may be building that would allow Democrats to wrest the House of Representatives
from Republican control. A Democratic takeover of the Senate will be harder to achieve. “We are all very sensitive to the
political environment we’re in,” said Oklahoma Representative Tom Cole, who led House Republicans’ campaign arm in
2008. Republicans are girding for an “extraordinarily competitive” election. Even if only one chamber flips to
the Democrats, Trump’s ability to impose his agenda would be thwarted, and his
administration almost certainly would find itself pinned down by investigations and subpoenas from congressional
committees. An analysis by Bloomberg Government of historical data, election maps and public polling
points to sweeping Democratic gains in the November election, when all 435 House seats and onethird of the Senate are on the ballot. Since the end of World War II, the party in control of the White House has, on
average, had a net loss of 26 House seats in midterm elections. Democrats can win control of the House
with a net gain of 24 seats in November. They’d need to win two seats to gain a majority
in the Senate. Adding to that, Trump’s approval rating at this stage of his presidency, 38 percent, is lower
than any of his predecessors going back to Harry Truman, according to Gallup polling data. The less
popular the president, the more seats his party tends to lose. That translates to “a very
poor chance of bucking the midterm odds if it holds at this level,” Republican pollster Lance
Tarrance wrote in a Jan. 5 analysis for Gallup. “Trump’s 20-point approval deficit in recent Gallup polling does not bode
well for him, in part because none of the past five presidents saw an increase in their approval rating in the year before
their first midterm.” Republicans do hold some cards. Those include favorable electoral maps drawn by Republicandominated state governments after the last census. GOP candidates also should be able to run on solid U.S. economic
growth, a 26 percent surge in the S&P 500 Index since Trump took office and an unemployment rate that stood at 4.1
percent at the end of the year. Yet none of the good economic news has budged Trump’s
stubbornly low approval ratings so far, or what polls show is a sour public view of the
direction of the country. In that environment, Democratic candidates are swarming to run in
Republican-held districts and drawing donors. Through the end of September, 145 House Democratic
challengers to 73 Republicans raised at least $100,000, according to the Campaign Finance Institute. At a similar point in
2015, 35 Democratic challengers to 25 incumbent Republicans raised more than $100,000. Republicans currently hold a
238-to-193 edge in the House, with four vacancies, and a 51-to-49 advantage in the Senate, but there’s a lot of
turnover in their ranks. There are 40 House Republicans who’ve announced they’ll retire or
leave to run for another office, or have resigned for other reasons. Several of them are in districts won by
Hillary Clinton in the 2016 presidential race. Among Democrats the number of departures is 16. Three
Senate Republicans aren’t running for re-election. Two of them, Jeff Flake of Arizona and Bob Corker
of Tennessee, publicly split with Trump and likely would have faced significant primary challenges from the party’s right
wing, highlighting some of the ideological splintering among Republicans. The off-year and special elections
conducted since Trump took office underscore the Republican challenges. Democrats
won governors’ offices by wide margins in New Jersey and Virginia while also capturing
Republican seats in both states’ legislatures, as suburban voters shifted to Democratic candidates. In Alabama,
Doug Jones became the first Democrat elected to the Senate from the state in 25 years in a
race that featured a scandal-tarred and controversial Republican who divided his own party, even though he had Trump’s
endorsement. “That’s three pretty big canaries in the coal mine that ought to warn you that
you’re headed into a turbulent period in the next election,” Cole said.
Multiple issues thump in battleground states
Kirzinger 18 (Ashley Kirzinger is a Senior Survey Analyst for the Public Opinion and Survey Research
team of the Kaiser Family Foundation. Prior to joining Kaiser, she served as Director of the University of
Illinois Springfield’s Survey Research Office. She earned a Ph.D. in Media & Public Affairs at Louisiana State
University’s Manship School where she also worked as a researcher at the Public Policy Research Lab. Bryan
Wu is a Research Assistant for the Public Opinion and Survey Research Program at the Henry J. Kaiser
Family Foundation. The Program undertakes original research on the public’s attitudes towards health and
social policy issues. He recently graduated from the University of California, Berkeley with a Bachelor of Arts
in Economics and Psychology. Mollyann Brodie is responsible for all aspects of the Foundation’s public
opinion survey efforts, including the monthly Kaiser Health Tracking poll, the Foundation’s work on
Americans’ attitudes toward global health policy, and the ongoing survey partnerships with media
organizations including The Washington Post, The New York Times, and NPR. Dr. Brodie’s efforts focus on
understanding public opinion and knowledge on health care policy issues, and the role of opinion in health
policy debates. Her research has been published in the Journal of the American Medical Association, New
England Journal of Medicine, Journal of Health Politics, Policy, and Law and Health Affairs. Brodie is coeditor of the book American Public Opinion and Health Care (CQ Press, 2011). She is also responsible for all
executive operations of the Foundation, including directing the President’s Office and supporting the
activities of the Foundation’s Board of Trustees and Board Committees. Dr. Brodie is a former President of
the American Association of Public Opinion Research (AAPOR). She previously served on AAPOR’s
Executive Council and as president of its Pacific Chapter, PAPOR. She received a M.S. in Health Policy and
Management and a Ph.D. in Health Policy from Harvard University. “Kaiser Health Tracking Poll – January
2018: The Public’s Priorities and Next Steps for the Affordable Care Act.” Jan 26, 2018.
https://www.kff.org/health-reform/poll-finding/kaiser-health-tracking-poll-january-2018-publicspriorities-next-steps-affordable-care-act/)
While health care is among the top issues for voters nationwide, it ranks lower among
voters living in areas where there are competitive House, Senate, or Governor races.
Voters in areas with competitive elections are more likely to prioritize candidates talking
about the economy and jobs (34 percent) than other issues. One in five say the situation with
North Korea (23 percent), immigration (22 percent), and health care (21 percent) are the most
important issues for candidates to discuss.
2018 Midterm Election Analysis As part of Kaiser Family Foundation’s effort to examine the role of health care in the 2018
midterm elections, throughout the year we will be tracking the views of voters – paying special attention to those living in
states or congressional districts in which both parties have a viable path to win the election. This group, referred to in our
analysis as “voters in battlegrounds” is defined by the 2018 Senate, House, and Governor
ratings provided by The Cook Political Report. Congressional and Governor races
categorized as “toss-up” were included in this group. A complete list of the states and congressional
districts included in the comparison group is available in Appendix A.
impeachment pursuit inev
Tobin 1/24 (Jonathan S. Tobin is the editor in chief of JNS.org and a contributor to National Review Online. “Will
Tom Steyer Trump the Democrats?” http://www.nationalreview.com/article/455722/tom-steyer-impeachment-pushsupport-liberal-base)
Tom Steyer may fit it in better with Democratic elites and officeholders than President Trump ever did with Republicans.
But, as the New York Times reported on Tuesday, Steyer’s insistence on funding an ad campaign
pushing impeachment is angering party leaders who think his efforts could be sabotaging
their chances of taking back Congress in the 2018 midterms. House Minority Leader Nancy Pelosi
and some congressional hopefuls in competitive districts believe his impeachment ads
running on cable news channels are both premature and a distraction from their more
measured criticisms of Trump and the Republicans. They’re right that most Americans think that the
impeachment talk is wrong. In the absence of clear, provable crimes or at least evidence of actual collusion between the
Trump campaign and the Russians (evidence that is unlikely to exist), seeking Trump’s removal this early in his tenure
strikes independents and Republicans as nothing more than sore-loserdom from the Democrats. Much like Trump in
2015, Steyer isn’t listening to the officeholders, party fundraisers, or pundits. He’s
listening to the Democratic grass roots. That’s why Pelosi and other Democratic candidates won’t be able to
stop him from keeping impeachment at the top of the party agenda in the run-up to November. Just as important, it
could make Steyer one of the most important and dangerous people in American politics
in 2018 and 2020. Democratic critics of Steyer’s efforts are right that barring some stunning and incriminating
revelations from Robert Mueller’s probe, the chances of removing Trump from office are virtually
nonexistent. Impeachment resolutions presented in Congress in the current term are mere symbolic gestures that
have no chance in a Republican-controlled House of Representatives. Indeed, the most recent such vote received support
from only 61 out of 193 Democrats. Even if Democrats win the House in November and muster a
majority for impeachment in 2019, conviction in the Senate trial that would follow is a
fantasy. Conviction requires a two-thirds vote, and the idea that there wouldn’t be at
least 34 Republicans who would stand by Trump is preposterous. What Liberals Used to Say
About Immigration The impact of Steyer’s campaign, however, can’t be measured solely by whether his
mudslinging at Trump and the Republicans succeeds in putting Mike Pence in the Oval Office. The real importance of his
efforts is that it is feeding off and fueling the rage of the Democratic base at the Trump
presidency. The “resistance” partisans prefer Steyer’s approach to that of the
congressional leaders who, in their view, meekly surrendered to the Republicans after a
three-day government shutdown. Anyone who ventured out into the streets at one of the many anti-Trump
rallies this past weekend should be able to understand that Steyer is more in touch with the people Democrats need to turn
out this fall than Pelosi or Senate Minority Leader Chuck Schumer is. Pelosi and Schumer dismiss the NBC/Wall Street
Journal poll showing that 70 percent of Democrats back impeachment, while Steyer is giving the base what it wants. Many
of the signs seen at these rallies were as absurd as the vulgar, pink hats many of the participants wore. But no one should
underestimate the depth of the anger the liberal base feels. Like the tea-partiers whose frustration with Washington
politics and anger about President Obama’s policies gave the Republicans a landslide midterm victory in 2014 and who
then helped Trump win an upset 30-state Electoral College majority two years later, the Left’s marchers aren’t interested
in making deals with congressional Republicans or the administration. They want to fight Trump — and Steyer seems to
be the only one listening to them. This means that rather than merely fund Democratic voter-
turnout efforts, as the former hedge-fund manager has pledged to do, Steyer is also
building a movement that could determine the course of the party no matter what
happens in 2018. The 4 million email addresses he collected during the course of his impeachment campaign will be
useful as he pressures Democratic candidates to back his ideas. But it also raises the possibility that, like another
billionaire, he could take matters into his own hands in 2020 and bypass the growing pool of Democratic presidential
wannabes.