In one week the retrograde Mercury will be over, Election Day will be behind us, and we will enter the next phase of uncertainty in the process of electing the president. The retrograde has been tough on me these last few weeks. There have been several surprises and problems to solve in my own life. On the national scene things have been crazy as well. How is it that several members of Mike Pence’s staff have tested positive for the coronavirus and he is not self quarantining?
Consistent with the problems that occur in a retrograde, a little over a week ago I lost my wallet. I searched our RV and my son’s home for several days with increasing frustration. My grandsons were interrogated. Were they playing a trick on granddad? I left California without my wallet, but certain that it was some place in my RV or in my son’s home. When we detected some activity on my American Express card we realized that I had probably lost it somewhere other than the RV or our son’s house, and we began the annoying process of cancelling credit cards after we left the Grand Canyon as we continued the long trek of over 3000 miles home.
The activity on the card turned out to be a late posting on the card from “Grub Hub” for a food delivery that we had ordered. That was reassuring, but realizing that it was a retrograde, a time when strange things happen, we cancelled the cards “for safety’s sake.” One big loss in my wallet that could not be replaced was my “Senior Pass” to the National Parks. I got mine ten years ago when they were free for a lifetime, and it will remain free as long as I have it, but it can not be replaced. In the interim, and especially during Trump’s administration, they have become expensive. A pass now costs eighty dollars a year plus a ten dollar charge to order online, and there is a twenty dollar yearly renewal fee. I was very lucky at the Grand Canyon. The ranger at the gate heard my story and let us in for free. Perhaps it is that he took pity on an old man who looks like Willie Nelson or Tommy Chong. I have not had a haircut since March 11, and I am now using a rolled up bandana tied around my head to keep my hair out of my eyes. I do look a little bit like Tommy Chong. While I was filling up the RV at a service station on the Navajo reservation in northwest New Mexico the day after we left the Grand Canyon, a man accosted me by saying, “Hey Chong, where’s Cheech?”
While fishing on the San Juan River, we heard that there was a huge snow storm coming our way. We had planned to go north to Colorado and the mountains, but with the storm coming we decided to go home by a southern route and headed south for I 40. We got as far as Amarillo where the storm stopped us. It is just what one must expect during a retrograde. The temperature here was over 80 during the weekend before the storm began, and now it is in the teens with a wind chill factor in the single digits. These people in Texas seem not to know how to clear highways, and the roads are icy. We expect that we will be hunkered down until late day on Wednesday or early on Thursday before we can get back on the road again. Losing my wallet, being stuck in Amarillo, and knowing that at the same time the Senate was confirming the nomination of Judge Amy Coney Barrett to the Supreme Court left me no other option but to take my two hiking poles and brave the elements for a therapeutic walk on the icy roads.
While I was on my walk Amy Coney Barrett was confirmed to the Supreme Court. When I climbed back into the RV, my wife said that she had checked the messages on our home phone and discovered that there was a message saying that my wallet had been found by a ranger at a trailhead at the Ano Nuevo State Park on the California coast. I was delighted, but confused. When I called my son to ask him to pick up the wallet, he reminded me that we had pulled off the coastal highway at Ano Nuevo to take pictures of the hillsides that had been blackened by the recent fires. My wallet must have fallen out of my pocket while I was taking pictures.
It may seem crazy to you that in my mind through an unscientific astrological formulation I connect the loss of my wallet, its recovery, an early prolonged snow storm in a place where it has not rained in months, the confirmation of a Supreme Court Justice, and a presidential election. All I can say is that we live in strange times, and I did not even include the recent resurgence of the pandemic–just the little bit that touched Mike Pence.
In my strange cosmic sorting of events, I decided that being happy that my wallet had been found and just accepting the reality of the weather and enjoying the opportunity to relax for a few days while snowbound in Amarillo, were perhaps my consolations for the pain of having the Republicans ram through the appointment of Judge Amy Coney Barrett to the Supreme Court just because they could. Justice Amy Coney Barrett will be on the job by the time you read this post because the president had her sworn in at a ceremony at the White House as soon as the Senate had taken its vote. I am not sure why the job of swearing her in was given to Clarence Thomas, but as the picture in the header reveals, he did the deed. There must be some cosmic irony in that choice that Anita Hill might appreciate.
The confirmation was a historic event. For the first time in 151 years a justice was confirmed without any members of the minority party voting for the confirmation. All Republicans senators except Susan Collins voted for her. Collins is running scared in her attempt to get reelected in Maine.
Justice Amy Coney Barrett is 48. There is every expectation that we will have a conservative majority on the Supreme Court for a long time. Justice Thomas is 72, Justice Alito is 70. Chief Justice Roberts is 65. Bret Kavanaugh is 55. Neil Gorsuch is 53. As Justice Ruth Bader Ginsberg demonstrated, Supreme Court Justices may remain in office until they choose to retire or until they die. How long Justices Thomas, Alito, and Roberts will remain in office is anybody’s guess, but at least two of them must retire or die before there is a chance for a liberal majority on the Supreme Court. Many in the know suggest that it will be at least a decade and maybe longer, as noted in an article in the Washington Post entitled “Senate confirms Barrett to Supreme Court, cementing its conservative majority” which was written by White House Reporter Seung Min Kim.
For me it was a very sad day. The first concern I have is what will Justice Coney Barrett do if President Trump claims voter fraud in a swing state like Pennsylvania or Florida? Will she recuse herself, or will she vote in favor of the president who nominated her?
My concerns about a conservative court include more than the ultimate outcome of the election. I fear for the ACA, the right of a woman to control her reproductive choices, the rights of the LGBTQIA+ community, the possibility of using legislation to address the social determinants of health, and the fate of bills that might be passed as part of a progressive legislative agenda. We will get a view of things to come soon. The case against the ACA is scheduled to be heard on November 10, a week after the election. Had Coney Barrett not been confirmed there would have been eight justices. Chief Justice Roberts has voted in the past to preserve most of the ACA. A four to four split would have saved the ACA. Coney Barrett has been a critic of the ACA and it may go down 5-4 or 6-3.
The history of how we got to this moment is nicely outlined in an article written by MaryBeth Musumeci entitled “Explaining California v. Texas: A Guide to the Case Challenging the ACA” that was published by the Kaiser Family Foundation on September 1, 2020, a few weeks before Justice Ginsberg died.
There is a nice graphic in the article that shows how each of the states have been involved in the case. The 18 states trying to get the ACA thrown out include most of the same states that have not accepted the Medicaid expansion. The 17 states trying to defend the ACA are heavily populated “blue” states. Ten other states have either joined the defense on appeal or have filed “amicus briefs” expressing support of the ACA. Two states, Ohio and Montana have filed neutral amicus briefs, and four states Alaska, Oklahoma, Idaho and Wyoming have done nothing. The Trump administration has deviated from the position that the federal government usually takes which is to defend bills that have passed Congress, and has joined the 18 states asking for repeal.
The issue is whether or not the ACA is unconstitutional since the tax bill of 2017 reduced the penalty for not having insurance to zero. Republicans contend that the entire law is unconstitutional since there is no federal penalty for non participation. Those defending the ACA contend that just because one part of the law is no longer valid, it does not invalidate the whole law. Ironically, the loss of the mandate has not led to any significant reduction in ACA enrollment. The defenders of the ACA argue the precedent that parts of laws are frequently found to be unconstitutional and are “severed” from the law leaving its other provisions intact.
The important parts of the ACA that would be devastating to lose are the protection of insurability despite preexisting conditions, the ability of young adults to remain on their parents policy until they are 26, protections for women’s health, standardization of minimal benefits on all policies, benefits to “non group” individuals like private contractors and the self employed who can buy coverage on the exchange, the Medicaid extension to all persons who earn less than 138% of the poverty threshold, and the subsidies for purchases on the exchanges for those earning less than 400% of poverty. Loss of the entirety of the ACA would throw healthcare into a state of confusion and economic uncertainty that is greater than all of the damage done by the Trump administration and by the pandemic combined.
The president has said time and again that he has a plan for healthcare that is ready to replace the ACA. He did it again during the interview that he terminated recently with Leslie Stahl of CBS for “60 Minutes.” If you missed the program, click here to see him lying to Leslie Stahl as she asks him about how he will protect the public if the ACA is ruled unconstitutional, and about his abysmal management of the pandemic. As he always does, he vigorous contended that his management of the pandemic has been the envy of the world. He continued by promising that he had a plan to preserve the protection for preexisting conditions, and asserted that his plan will be better than the ACA. Leslie Stahl pushed him hard on his management failures with the COVID and his phantom plan. She pushed him so hard that he huffed out of the interview. After he rudely and abruptly terminated the interview, he sent Kayleigh McEnany back into the room where the interview had occurred to give Stahl a huge binder containing 2000 pages which he said was his plan. At the end of the segment Stahl reported that binder was essentially a prop, it was just a huge unorganized jumble of papers, and not a plan. That makes sense because if he had a plan he would be using it to argue for his reelection. He had no plan for “the wall.” He has no plans for infrastructure improvements or to protect the environment. The only plans he has are a delight for his backers because those plans are about undoing the progress made by previous administrations.
So where does the ACA stand? It could be gone with Amy Coney Barrett on the Court. If Trump is reelected and the ACA is deemed unconstitutional it is unclear what will happen. Will things go back to where they were in 2008? Will he surprise us with a beneficial plan if he is elected? If Biden wins and there is a Democratic majority in both the Senate and the House there would be an effort to replace the ACA with an improved, and hopefully bipartisan bill that will contain a “public option,” but there would be many millions of people without insurance until that bill became law, and it is highly likely that the bill would be challenged in the Supreme Court by the same people who challenged the ACA.
A conservative majority on the Supreme Court and the filibuster in the Senate stand as threatening dual barriers to any progressive legislation that might address universal access to healthcare, public education, housing, changes in the tax code, LGBTQIA+ rights, resolution of inequities, and improvements in the social determinants of health. With the appointment of Amy Coney Barrett to the Supreme Court the responses available, though difficult, assuming the Democrats take back the Senate are straightforward and include:
- Try hard to move toward bipartisan solutions to big problems
- End the filibuster
- Change the structure of the Supreme Court
The first option would be nice, but is it likely? The next two options are reprisals against the behavior of Senate Republicans and require the emotional energy to change the Senate’s procedures and the structure of the Supreme Court. If this were chess, and if Biden is elected, one could argue that he was “checked” before he was crowned, but was that not the real reason that Mitch McConnell violated norms and moved so quickly to confirm a new justice? That move demonstrated that the Republicans are not sure that they will be in power in January.
Uncertainties are eventually resolved. The process of resolution begins in a week with election day. Will BIden win decisively? Will Trump concede if he loses? Will the Supreme Court give us a president that a majority of Americans did not want as they did in 2000? Will there be riots in the streets if Trump steals the election? Will Trump leave office peacefully and gracefully if he loses?
The nation’s politics would be complicated without a pandemic. The combination of a minority government, a conservative court, and a pandemic could have a multiplying effect. But, sometimes things work out. I did get word that my wallet was found. The snow in Amarillo will end in a couple of days. Tuesday will come and we will see what follows. I think the thing to remember is that there is only one ultimate direction to go. We must stay on the road toward a better America where inequities are addressed, people are respected, and honest rangers try to find the owners of lost wallets. Good old Joe Biden summed it up nicely at the end of the last debate when Kristen Welker asked both candidates what they would say on his Inauguration Day to the Americans who did not vote for them. Biden’s response was:
I will say, I’m an American President. I represent all of you, whether you voted for me or against me, and I’m going to make sure that you’re represented. I’m going to give you hope. We’re going to move; we’re going to choose science over fiction. We’re going to choose hope over fear. We’re going to choose to move forward because we have enormous opportunities, enormous opportunities to make things better.
We can grow this economy, we can deal with the systemic racism. At the same time, we can make sure that our economy is being run and moved and motivated by clean energy, creating millions of new jobs. That’s the fact, that’s what we’re going to do. And I’m going to say, as I said at the beginning, what is on the ballot here is the character of this country. Decency, honor, respect. Treating people with dignity, making sure that everyone has an even chance. And I’m going to make sure you get that. You haven’t been getting it the last four years.
I am confident that progress will occur some way somehow even with a conservative Supreme Court if we just keep believing in progress and don’t give up when there are temporary setbacks. We will know a lot more by next Wednesday.
