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an independent newspaper EDITORIALS


Diagnosis: Constitutional T The first court assessment of the health-care law pronounces it sound.


HURSDAY’S RULING by a federal judge in Michigan upholding the constitu- tionality of the individual mandate to buy health insurance was just the first word on a subject almost certain to end


up at the Supreme Court. The ruling came in a lawsuit filed by the Thomas More Law Center, a conservative public interest group that claimed that Congress overstepped its authority by requir- ing individuals, beginning in 2014, to obtain health coverage or pay a fine. U.S. District Judge George Steeh found that Congress acted consis- tent with its power under the commerce clause, which allows it to regulate interstate commerce. The commerce clause question is a novel, and


admittedly difficult, one. Over the years, the court has found that the clause gives Congress a wide berth in legislating, even in cases where the link to commerce, or to interstate activity, is rather hazy. “The Supreme Court has expanded the reach of the Commerce Clause,” Judge Steeh not- ed, “to reach purely local, non-commercial activ- ity, simply because it is an integral part of a broad- er statutory scheme.” Thus, in the 1942 case of


Upside-down


tax policy How the current system helps the haves buy bigger houses and pay for college


perverse result of the stealthy spending conduct- ed through the federal tax code. The code is salted with “tax expenditures” — programs, many worthy, designed to promote policies from homeownership to education to retirement savings. There are two problems with this approach.


I


First, it lacks transparency and accountability. While direct spending programs are subjected to continual review, the spending that takes place through the tax system operates on silent auto- pilot. Once embedded in the code, the preference tends to be in place until dislodged. Second, accomplishing social policy through


tax expenditures tends to award the most help to those who need it least. As a new report by the Corporation for Enterprise Development and the Annie E. Casey Foundation demonstrates, the $400 billion federal asset-building budget — sub- sidies to buy homes, save for education or plan for retirement — is upside down. Rather than ameliorate rising income inequality, it reinforces it. Low-income households who do not earn enough to itemize deductions don’t get the ben- efit. A middle-class household earning $50,000 a year “receives less than $500 in benefits” from tax breaks for mortgages, property taxes and in- vestment income, the report found. “By contrast, taxpayers bringing in more than $1 million enjoy $95,820 in annual support through mortgage and property tax deductions and investment tax breaks,” it said. Something is wrong with this picture. Yes,


F YOU WERE spending $400 billion a year on social programs, would you give half of that to the wealthiest 5 percent of Amer- icans? We didn’t think so. But that is the


Wickard v. Filburn, the Supreme Court upheld a penalty imposed on a farmer for wheat grown purely for home consumption. In 2005, in Gon- zales v. Raich, the justices said that Congress could prohibit the growing of marijuana solely for personal consumption. Still, as the plaintiffs in the health insurance case noted, the commerce clause has never been construed to regulate a choice not to purchase something. The argument that congressional power


stretches this far is that requiring uninsured indi- viduals to obtain health insurance is central to the legislation’s broader effort to keep costs under control. If obtaining insurance is optional, the un- insured who go to emergency rooms or require ex- pensive care will end up shifting the costs of that uncompensated care onto doctors, hospitals and, eventually, in the form of higher rates, individuals who obtain insurance. Absent the individual mandate, the other aspects of the health-care leg- islation — the requirement to extend coverage to individuals with preexisting conditions, for exam- ple — would be unaffordable. As Judge Steeh analyzed the case, the plaintiffs’


decision was not whether to participate in the health-care market; everyone eventually does. Rather, he said, “as inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the meth- od of payment for the services they expect to re- ceive. The government makes the apropos anal- ogy of paying by credit card rather than by check.” The implications of individual choices on pay- ing for health care have at least as great an effect on the broader economy as Roscoe Filburn’s deci- sion about how much wheat to plant. We think the capacious contours of the commerce clause, as interpreted by the Supreme Court for decades, support the imposition of the individual man- date. But we think that is a closer call, and more of an extension of existing doctrine, than Judge Steeh’s ruling acknowledges. Whether to buy in- surance or handle health-care costs another way is a bigger difference than credit card or check. We were glad to see the mandate upheld but look forward to hearing from more courts on the un- derlying theory — and what limits it imposes on federal power.


TOM TOLES


MONDAY, OCTOBER 11, 2010


LETTERS TO THE EDITOR dletters@washpost.com


The sacrifices made on Virginia soil I found it ironic that The Post placed the article


“Faces of the Civil War, staring out across the dec- ades” above Robert McCartney’s column, “McDon- nell’s laudable lead on Confederate past,” on the front of the Oct. 3 Metro section. Though I did not vote for Robert F. McDonnell or


George Allen for any office, in my mind their procla- mations of “Confederate History and Heritage Month” has never been an edict in support of the evil practice of slavery. As the “Faces” article pointed out, most of the brave men who fought for both sides did so out of “innocence and idealism” and to defend their states, which at the time were more important than country. Confederate History Month is about the sacrifices


that made Virginia strong, on the soil where not only the seed of America was planted but also the capital of the Confederacy. You don’t have to recog- nize it, but please allow those of us with deep roots in our state to honor those who fought and died for Virginia and those who rebuilt it to the prominence it enjoys today.


JOHN P. WILLIAMS, Alexandria Still in the thrall of developers


The Prince George’s County Council has been changing the law for favored developer projects for as long as I can remember [“Townhouse bill arouses suspicion in Prince George’s,” Metro, Oct. 6]. Why should Karington be any different? The developer is one of the most influential in the county, and coun- cil members are wary of offending him because they might be looking for jobs when their terms expire. This pro-developer, anti-citizen mentality to


change zoning upon request was one of the main thrusts of the 1992 term-limit campaign that I founded and chaired. We hoped that with new peo- ple at the helm every eight years, we could contain the power and cycle of corruption, but we missed our mark. The time has come for citizens to look at other alternatives to deter business as usual. JUDYROBINSON, Hyattsville


Encryption is the way to go Contrary to the assertion in the Oct. 7 editorial


“Wiretapping the Net,” e-mail services are “subject to the wiretap law,” and all e-mail service providers, regardless of the classification of their parent com- panies, are required to comply with, and do comply with, court orders for interception and subpoenas for disclosure of stored e-mail. The Post may have been trying to say that some e-mail services are not subject to the mandates of the 1994 Communica- tions Assistance for Law Enforcement Act, but that would have been misleading, too. For good reason, that law does not apply to e-mail services, regardless of whether their parent companies are communica- tions providers. In any case, there has been no cred- ible assertion that e-mail service providers lack the capability to intercept and turn over e-mail. In terms of encryption, the editorial claimed that the policy question is not difficult. If that is correct, it is not in the way The Post assumes: In the 1990s, the U.S. government made the policy choice that strong encryption used in government and commercial communications was, on balance, better for security than were vulnerable communi- cations. Since then, strong encryption has become the foundation of online commerce and enables American businesses to protect sensitive data. The FBI’s proposal to reverse that policy decision poses a conflict not only between security and privacy but between two very different versions of security, one in which communications are secure and one in which they are vulnerable. GREGORY T. NOJEIM, Washington


higher-income households pay higher rates and a greater share of taxes. But they benefit dis- proportionately, even given this bigger share. Ac- cording to the report, “While the overall share of the tax bill for the top 1 percent of earners was 27.7 percent in 2005, their share of total benefits from asset policies that same year was over 45 percent.” In coming years, fiscal pressures will demand a


close look at the tax code. That should include serious consideration of whether the current subsidies are sensible and sensibly allocated. In particular, study is needed of whether existing deductions should be limited or restructured as credits — including, in appropriate cases, refund- able credits (money back to those who do not owe income taxes). This is too big a chunk of spending to remain unexamined.


D.C.’s Election Day R


ESIDENTS OF the District know better than anyone the indignity of being denied choice in government. It’s important, then, that voters not give short shrift to


Beyond the primaries, there will be many choices on the Nov. 2 ballot. While not fielding candidates for the citywide


next month’s general election. There are still sig- nificant offices to be decided, and the local Repub- lican Party, for the first time in recent memory, is competing with an interesting slate of candidates. We are not yet prepared to endorse individual candidates. But it’s important to call attention to the fact that, as critical as the September party pri- maries were in this Democratic-dominated city, voters do themselves and the District a disservice by not weighing all the alternatives available to them on Nov. 2. Single-party rule is never healthy, and GOP officials deserve credit for this year’s imaginative efforts to build a stronger party.


races of mayor, D.C. Council chairman or at-large council seats, the local GOP recruited candidates to run in all four city wards on this year’s ballot. The group — Marc Morgan in Ward 1, David Hedgepeth in Ward 3, Timothy Day in Ward 5 and Jim DeMartino in Ward 6— present themselves as urban Republicans: conservative on fiscal issues and progressive on social issues such as gay rights. Education is an important theme with the candi- dates, who are supportive of the reforms under- taken by D.C. Schools Chancellor Michelle A. Rhee and strong on issues of choice, such as the need for charter schools and the federally funded D.C. Op- portunity Scholarship Program. As The Post’s Tim Craig pointed out, the group also presents an un- usual demographic mix for a GOP ticket. Three


candidates (Mr. Morgan, Mr. Hedgepeth and Mr. Day) are African American, and two (Mr. Morgan and Mr. Day) are gay. They face enormous odds in a place where there are 11 Democrats for every Republican. All are be- ing outspent by the incumbents they face. In con- trast to the weeks preceding the primary, when it seemed there was a candidates forum every night, there appears to be little interest among commu- nity groups or the media in these contests or the nonpartisan D.C. State Board of Education races also to be decided. This needs to change: There should be more candidates debates. Challenges lie ahead for the District; rather than taking a pass on Nov. 2, voters should take seri- ously their civic obligation by studying the candi- dates and choosing wisely.


The writer is director of the Center for Democracy and Technology’s Project on Freedom, Security and Technology.


Ready to talk about inmate furloughs The Oct. 5 editorial “A dangerous delay” was right


to focus on the failure of the Bureau of Prisons (BOP) to implement a policy regarding notification of victims when inmates are on furlough. Even though the editorial acknowledged our let- ter to Attorney General Eric H. Holder Jr. setting the record straight, it should not have repeated the bu- reau’s outrageous attempt to shift responsibility. As we have stated, and the Government Accountability Office has reported, BOP management had a mecha- nism to prioritize policy negotiations but did not ask us. BOP failed in not prioritizing the policy and in not taking full responsibility for its own inaction. We remain ready to discuss and implement the proposed policy immediately. JOHNGAGE, Washington


The writer is national president of the American Federation of Government Employees.


Deserving of success Steven Pearlstein [“The costs of rising income in-


equality,” Economy & Business, Oct. 6] feels that one of the reasons for income inequality in this country concerns the lack of incentive to do what is neces- sary to achieve a higher income. He stated that peo- ple “don’t work hard, take risks and make sacrifices if they think the rewards will all flow to others.” But that is precisely why there is an income dis-


LOCAL OPINIONS 3Join the debate at washingtonpost.com/localopinions


Women on the other side of the prosperity gap


The Oct. 7 front-page article “More U.S. wom- en pull down big bucks” missed an entire side to the story about the earnings of women in our region.


While some of the country’s wealthiest women live here, there is a wid- ening divide between them and women who live in poverty. According to a report that my organiza- tion will release Thursday,


The median income for a single woman with children in the District is just $29,900.


21 percent of female-headed households with children in this region live below the poverty line. A number of women in our region may earn more than $100,000, but the median income for a single woman with children in the District is just $29,900. And while the number of women


with six-figure incomes may be rising faster than similarly situated men, we still have a 20 percent gender wage gap to overcome in this region. The article also noted that higher education has helped more women succeed, but a substantial proportion of local women — 57 percent of Latinas and 39 percent of African American wom- en — have only a high school diploma or less. It is


critical that we continue to find ways to break down barriers to economic security for our re- gion’s low-income population. NICOLAGOREN, Washington


The writer is president of the Washington Area Women’s Foundation.


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parity. Those who are willing to take the risks and work hard do reap the rewards. Those who become dependent on others, take no risks and don’t work particularly hard do not reap such rewards, nor do they deserve them. This should not be such a great revelation. Depen-


dency and expectation for others to do the heavy lift- ing has become rampant in this country. Our gov- ernment has played a great role in fostering this cul- ture. Government dependency results in more government and an ever-increasing income dis- parity. The middle class gets smaller while the upper and lower classes grow.


JAY BERNSTEIN, Rockville


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