8:35am

Tue February 8, 2011
Opinion

The Root: Health Rulings Are No 'Sputnik Moment'

Sherrilyn A. Ifill teaches at the law school of the University of Maryland and writes about law for The Root.

The decision by the federal district court in Florida that strikes down the new health care law as unconstitutional is just another example of why, despite the urgent call of President Obama, our country may not be ready for a "Sputnik moment."

It was exciting to imagine, during the compelling call to arms in President Obama's State of the Union address two weeks ago, that Americans might rally themselves to push for excellence and innovation in every aspect of American life. But even as Obama painted a grand vision of who we could be, some Republicans were tweeting words like "socialism" and "he's lying" to undercut the president's message.

The contrast between the president's big ambitions and the small-minded response of some Republicans is telling. Because even as Obama soberly assessed America's economic, educational and infrastructure shortcomings in comparison with countries in Asia, it seemed apparent that we have a president whose intellectual power, forward thinking and ambition for our country may be far ahead of the willingness or capability of the American people and American institutions to engage.

It's telling that just a week after Obama's presentation of an ambitious vision for our country, he would suffer yet another defeat from a conservative judge interpreting Congress' power under the Commerce Clause in the Constitution to exclude the power to require that individuals purchase some form of health care. Judge Roger Vinson's opinion (pdf) is 78 pages long and impressively garlanded with historical analysis of the Commerce Clause. But his reasoning is, at bottom, small. In short, his conclusion is largely the same as Judge Henry Hudson's in Virginia: Congress' Commerce Clause power gives it the ability to regulate economic activity — but not inactivity — that substantially affects interstate commerce. In other words, Congress can regulate what you do, but not what you don't do.

The decision of two federal district courts to deem the new health care law unconstitutional should not be viewed solely as a blow to Obama or to Democrats in Congress (it will be gratifying to read an appellate court's full disposition of the constitutional question over the next few months, since we've yet to read a full-throated, robust analysis in support of the law's constitutionality). Despite a recent move by a Mississippi judge to throw out a lawsuit challenging the health care law, the decisions in Virginia and Florida seem reflective of a country that is essentially stuck — unable and often unwilling to embrace forward-looking, progressive change — even in the face of devastating, even crippling flaws in many of our country's most important institutions and policies.

The largely conservative federal courts are obsessed with parsing the words of our Constitution as they were understood more than two centuries ago, turning our foundational document into what our first chief justice, John Marshall, warned in McCulloch v. Maryland might become "a splendid bauble." The rigid jurisprudence of our courts also increasingly reflects the static thinking of large swathes of the American public. We have lost the ability to commit to solving the problems of our society and have instead become satisfied with an obsessive nostalgia for the past and an all-consuming embrace of the status quo. We see the problems, but we lack the will or the desire to solve them.

Remember when those commuter-plane crashes occurred a few years ago, and we learned how little our nation's commercial pilots are paid, and how little their flight schedules allow them to sleep? What about the devastating collapse of the Massey coal mine in West Virginia last year that resulted in the deaths of miners?

Massey's record of multiple violations and the company's swaggering CEO inspired outrage. But there have been no new laws or policies put in place to protect against the same thing happening again. Instead, Massey stands poised to avoid some of its legal troubles stemming from the collapse when the company sells itself to a coal conglomerate for more than $7 billion.

For a more recent example, take the shooting in Tucson, Ariz., that resulted in the deaths of six people, including a Republican federal judge and a 9-year-old girl. The ability of the alleged shooter, Jared Loughner, to obtain weapons and ammunition of the caliber to do massive human damage, despite his well-known and seemingly apparent mental troubles, seems an obvious call for more stringent requirements for gun purchasers.

It's been reported that Obama is poised to give a major national address on gun control. But we already know what will happen in response. The National Rifle Association and the Republican Party will hysterically argue that Obama is "shredding the Constitution" and seeking to take away the right to gun ownership. It will be forgotten that one of Obama's earliest acts as president was to sign an executive order allowing individuals to carry concealed weapons in our national parks — an attempt at conciliation for which he has received no credit from the right, and justifiable condemnation from left (or just from those who want to enjoy our national parks without fear of gun violence).

We have become a nation that is almost unwilling and unable to confront and grapple with some of its most important challenges. Instead, comforting ourselves with slogans about "freedom" and vapid calls to the greatness of the American people, we lurch from avoidable tragedy to revealing disaster with scarcely any will to take up a sustained and informed campaign to make systemic changes in our deeply flawed institutions, industries and policies.

A progressive push — like the president's health care law — is immediately decried as contrary to our "values." And this only seven years after much of the nation stood behind a president who called upon us to start a war without a legal basis, condoned torture and detentions without trial, and turned a blind eye to the rule of law. We have become better at "undoing" than "doing." It's a testament to how backward we've become that a new political movement — the Tea Party — was born of an effort to undo a law ensuring health care for every American.

By invoking America's accomplishments in the space program in the 1960s, Obama's poignant request for us to remember what we can accomplish as Americans is perhaps also a reminder of how far we have come from being a country that can rise to the challenge. It is a steep road ahead, and the president, despite his seemingly unending optimism, must know it.

Obama's invocation of a Sputnik moment during the State of the Union address is a call to arms — more coherent, compelling and urgent than a call to war. It will not be heeded as quickly and comprehensively as was the tragic and ill-fated call to a "war on terror." The Florida health care ruling seems a sobering but appropriate reminder that it will take more than soaring rhetoric for America to "win the future." Copyright 2011 The Root. To see more, visit http://www.theroot.com/.

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