MONDAY, SEPTEMBER 20, 2010


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EZ SU THE FED PAGE


GOP plan to replace health law unclear


BY RICARDO ALONSO- ZALDIVAR


Republicans are promising to


repeal and replace President Obama’s health-care overhaul if they win control of Congress. But with what? Not even they know. Some have proposed changes


to workplace coverage, even turn- ingMedicare into a voucher plan. Many prefer small steps that tiptoe around political land mines. Others want a clean start. “During the health-care de-


bate, there was just as much division within Republicans as there was between the parties,” said Douglas Holtz-Eakin, an ad- viser to Sen. John McCain (R- Ariz.) in his 2008 presidential bid. “It will be more visible now that Republicans may be in charge of one house, because those divisions will come to the surface.” At least 75 House seats are


competitive in this election, the majority held by Democrats, a recent Associated Press analysis said. The GOP only has to win 40. One of the first acts of a Republican majority would be a vote to repeal what they dismiss as “Obamacare.” But they haven’t said much about what would replace it. A GOP bill rejected by the


Democratic-ledHouse last year is the closest thing to a starting point. That plan would cover an additional 3 million people by 2019, compared with nearly 33 million under the Obama health-care law. It would lower premiums modestly for many small businesses and for people buying insurance directly. It wouldn’t solve the nation’s long- term cost and coverage problems. “On a scale of 1 to 1,000, it’s


about a 5,” scoffs former Senate majority leader Tom Daschle, a senior Democratic adviser. Yet some Republican propos-


als are as far-reaching as any- thing Democrats have tried. A budget crisis could push them to


the forefront because lowering health costs is critical to reducing record federal deficits. Many of those ideas come from


Rep. Paul Ryan (R-Wis.), one of a group of younger lawmakers try- ing to energize the party leader- ship. Along with Sen. Tom Co- burn (R-Okla.), Ryan sponsored legislation that would replace Medicaid with private insurance for most low-income people. The idea is to foster personal respon- sibility on the theory that con- sumers will seek better value for their health-care dollars. The plan would make employ-


er coverage taxable to employees, but that would be offset with a tax credit available to all. It could be used to buy coverage individually or to keep a plan at work. Some people with generous employer coverage could face higher taxes. In contrast to the Democrats’ health-care law, there would be no federal mandate that individ- uals get coverage or employers help pay for it. The plan, however, is a hard


sell. Any attempt to tamper with the tax-free status of employer health care is certain to provoke an all-out counterattack from la- bor unions. That hasn’t deterred Ryan. He also risks antagonizing the senior citizens’ lobby. On his own, Ryan has pro-


posed to convertMedicare into a voucher system. People who be- come eligible starting in 2021 would get a federal payment to buy private insurance. Because of the timing, most baby boomers get to keep the government-run program.


“Repealing Obamacare is a


step in the right direction,” Ryan said. “It’s not enough. You have to reform health care itself.” Repeal is not a surefire propo-


sition. Even if the Senate goes along, Obama could veto it, and Republicans probably won’t have enough votes to override. But they have a backup plan: Use the congressional power of the purse to deny the administration funds to carry out the law. —Associated Press


HIGH COURT Robert Barnes


In book, more of Breyer’s dissents on originalism


first two years in office, a frequent request from liberals was for someone to stand up to Justice Antonin Scalia. Give us someone who’ll take him on, they said, and tell him why he’s wrong. In fact, though, Justice


W


Stephen G. Breyer, appointed to the court by President Bill Clinton in 1994, has been doing just that for years. Scalia and Breyer are frequent


debating partners, and Breyer has written not one but two books critiquing originalism, the method of constitutional interpretation most associated with Scalia. It says the best way to interpret the Constitution is by looking at the meaning of the words at the time they were written. Breyer’s newbook, “Making


Our DemocracyWork,” underlines their disagreement in a chapter called “The Basic Approach.” “The court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing,” Breyer writes. “Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Judges should go about this,


Breyer says, using “traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the lawwork better for those whom it affects.” Breyer, 72, said in an interview


that he understands how that opens him to criticism of subjectivity, and that his approach lacks the simple


U.N. trying to prove relevance united nations from A1


for action or a consortium for action at the U.N.” Jones noted that the growing


assertiveness of emerging pow- ers — particularly China — has made it harder to reach interna- tional compromise. But theUnit- ed Nations has been hobbled by failures, and distractions, of its ownmaking. The outgoing head of an anti-


corruption office delivered a parting shot to Secretary Gener- al Ban Ki-moon in July, accusing him of leading the United Na- tions into an era of decline.More recently, the top Chinese official at the United Nations, in an alcohol-fueled outburst, noted at a U.N. retreat that he had never really liked Americans, or his boss, Ban. Asked to comment about the


Chinese diplomat at a recent press briefing, the secretary gen- eral sighed and urged reporters to turn their attention to more pressing international problems. The U.N. General Assembly,


the world’s biggest international diplomatic debate, still provides an opportunity to take stock of America’s role in the world, as well as a platformfor authoritar- ian leaders to air their grievanc- es. During the past decade, the General Assembly chamber has reflected the strains of global policymaking, with President George W. Bush lecturing the world body about its failure to confront Saddam Hussein and Venezuelan President Hugo Chavez famously comparing Bush to the devil. This year, the mood is favor-


able for an American president who has restored U.S. funding to the United Nations, ended a U.S. boycott of the U.N. Human Rights Council, and reinvigorat- ed U.N. nuclear disarmament efforts. On Wednesday, Obama will


also reaffirm U.S. support for a series of U.N. development tar- gets, known as the Millennium Development Goals, before the General Assembly begins in ear- nest. The Obama administration,


however, will make no new fi- nancial pledges to the campaign. Susan E. Rice, the U.S. ambas-


sador to the United Nations, said that the administration “set out to rather dramatically change


the tone and the substance of our engagement” with the world body after a relationship that has been marked for years largely by confrontation. She highlighted U.S. initia-


tives to imposeU.N. sanctions on North Korea and Iran. She said the United Nations was provid- ing a critical role in managing peace efforts in places including Sudan and supporting U.S. ef- forts in Afghanistan and Iraq. And she noted the United Na- tions’s vital role in responding to natural disasters in places such as Haiti and Pakistan. “We’ve seen tangible results


that in fact will make Americans safer andmake the world amore peaceful and prosperous place,” she said. “We’ve ended needless U.S. isolation on a range of


“A lot of the juice is outside the United Nations.” —Bruce Jones, analyst


issues.” Still, during the past two


years, the U.N. Security Council hasmade fewer decisions than at any time since the end of the Cold War, according to a report by the Security Council Report, an independent, nonprofit group. U.N. peacekeeping, which


grew rapidly during the Bush administration, has stalled. Not a single new U.N. peacekeeping mission has been authorized since Obama came into office, though the council has autho- rized additional troops to ensure order in Haiti after the January earthquake. The United States and its Eu-


ropean allies, meanwhile, have opposed calls by African govern- ments to send the United Na- tions back into Somalia. And the council mounted a largely ane- mic effort to preventmass atroci- ties of civilians in Sri Lanka. Russia, meanwhile, blocked any discussion of a peacekeeping force for Kyrgyzstan to halt vio- lence against ethnic Uzbeks ear- lier this year. In Congo, the United Nations has admitted failing to provide adequate pro- tections for victims ofmass rape.


“The feeling that I get watch-


ing the [Obama] administration is that their heart is certainly there,” said John Ruggie, a pro- fessor at Harvard’s John F. Ken- nedy School of Government and an adviser to Ban. “The willing- ness to be supportive is certainly there, but with so many other issues to juggle and deal with I don’t think [the U.N.] has be- come a real focus of attention.” In perhaps itsmost important


challenge at the moment, the United Nations is leading the effort to oversee a referendumon independence for southern Su- dan — a ballot that threatens to reignite one of Africa’s bloodiest civil wars if it’s not seen as credible. In a bid to bolster the U.N.


effort, Obama will participate in a high-levelmeeting this week to prod Sudan’s rival camps to com- mit to a peaceful vote. Edward Luck, a historian at


the International Peace Institute who acts as an informal adviser to Ban, said theU.N. effort to find its way has been complicated by a “geopolitical strategic situation that is very, verymurky.” “The U.N. reflects that,” he


said. “The world is muddling through as the U.N. is muddling through.” Luck said that situation will


only becomemore difficult in the coming year as key emerging powers—includingBrazil, India, South Africa, Turkey and Nigeria — get their turns as members on the Security Council for two-year terms. Brazil and Turkey have used their position to challenge the existing order on the council, mounting a campaign, for in- stance, to thwart the U.S. push for sanctions on Iran. But Luck said he was confi-


dent that the United Nations would remain a key player, not- ing that there are no other international institutions with the capacity to implement their policies on the ground or with the same kind of political legiti- macy that comes with being an organization with universal membership. “The U.N. is not the sun of the


international solar system; ev- erything doesn’t revolve around it,” he said. “But it is the final reference point on most issues, which have to come to the U.N. for legitimacy.” lynchc@washpost.com


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hen President Obama faced openings on the Supreme Court in his


worries that the court’s 5 to 4 decisions on controversial subjects will be seen as political. “And I agree it is a problem—


if you ask the average person . . . there is a tremendous inclination to say these decisions are made on a political basis,” Breyer said in the interview. “But that is not how it looks from the inside, that is not how it looks when you’re actually working on a case.” He points out that only a


quarter of the court’s decisions come on such a divided vote. “They tend to reflect


CHIP SOMODEVILLA/GETTY IMAGES


Stephen G. Breyer, left, and Antonin Scalia are frequently at odds, especially over the concept of originalism, which Scalia champions.


message of originalism. “I’ve said many times: I can


understand why you’d want . . . a simple, clear theory, as if you had a historical computer and could in fact decide on the basis of history the answer to these questions,” Breyer said. “But history is too uncertain.” In the book, he points to


District of Columbia v. Heller, the case that established for the first time that the Second Amendment protects an individual right to gun ownership. Scalia, writing for the five-member majority, and Justice John Paul Stevens, writing for the four dissenters, including Breyer, both looked extensively at the amendment’s historical roots. They came up with completely different interpretations. But Breyer went further,


saying that even if such a right existed, the District had authority to forbid handgun ownership because it had a compelling interest in saving lives. Such a proportionality approach is criticized as “judge- empowering,” Breyer


acknowledges. “But what is the alternative? Today’s court should not base an answer to a question about an issue such as gun control on the facts and circumstances of eighteenth- century society.” Breyer’s discussion of Heller is


only one of a number of recent cases he mentions in the book. But those looking for an insider’s account of the deliberations that went into the decisions will be disappointed.He doesn’t mention any current colleagues by name, and his descriptions of the holdings in the cases read much like newspaper or law- reviewdescriptions. “I tried to be as objective as I


could be,” he said. He also said he hoped that by


going into detail on the reasoning behind the decisions, he could temper a viewhe considers most harmful to the court’s reputation: “that we are nine junior-varsity politicians.” Even as he finds himself more


often in dissent on the increasingly conservative court led by Chief Justice John G. Roberts Jr., Breyer said he


differences of basic philosophies or jurisprudence or ways people believe the lawshould affect or does affect, or the Constitution should affect or does affect, or should be interpreted in the United States,” Breyer said. “And it’s very misleading to


call those political differences.” Like other justices who


recently wrote books, Breyer has hit the media circuit to promote his work. The short, crisp sentences in “Making Our DemocracyWork” are a contrast to his long, hypothetical questions on the bench or his stream-of-consciousness answers to interviewquestions. His promotion of the book got off track in a network interview when he stumbled into an overly analytical answer about Koran- burning. But Breyer, if concerned about


the court’s image, remains an optimist. Accepting the court’s decisions, he writes, has become “habit” for the nation. And if he continues to disagree with the court’s decision in, say, Bush v. Gore, he looks for the silver lining. “Despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the court’s intervention, the public, Democrats as well as Republicans, followed the decision,” he writes. barnesbob@washpost.com


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