JACK BERNARD'S TRAVELS

Two weeks ago, Secretary of State Pompeo and Israeli Prime Minister Netanyahu flew to Riyadh, Saudi Arabia for a secret meeting with Mohammed Bin Salman, the Saudi Crown Prince. All three parties denied the meeting occurred but lately their story has sprung leaks. 

This triad of unsavory characters – MBS, who ordered the murder of Jamal Khashoggi, Netanyahu, under indictment for bribery, bank fraud, and breach of trust at home in Israel, and Pompeo seeking support for a presidential run in 2024 – are doing Trump’s dirty work by establishing an anti-Iranian alliance they hope will undermine the incoming Biden administration.

Then yesterday, following the assassination of Iran’s chief nuclear scientist (widely understood to have been the work of Israel) we learned that Trump’s son-in-law, Jared Kushner, is headed back to the Middle East to resolve a dispute between Qatar and Saudi Arabia and to “quiet tensions” amid Iranian threats to retaliate. What could possibly go wrong?

Best guessers think Pompeo’s secret meeting was intended to prevent the Biden administration from rejoining or renegotiating the Joint Comprehensive Plan of Action (JCPOA), the nuclear treaty signed by Iran, the five permanent members of the UN Security Council plus Germany and the European Union that Trump withdrew from in 2018. Whether the US was involved with Israel in the Iranian assassination (remember Trump ordered the assassination of Iranian General Qasem Soleimani in January and was silent on the murder of Khashoggi) Iran vowed today that “it is not going to ‘fall into the trap’ of scuttling any future talks with the Biden government following the assassination.” (Bloomberg News)

This is a scary game of chicken. Iran will surely retaliate against Israel. The port of Haifa with its strategic significance and a large civilian population is the most likely target. With wars in Syria, Yemen, and Afghanistan, tensions in Lebanon, Iraq, Pakistan, and Iran, the entire Middle East is a tinder box. Surely, Kushner is the man to clean it all up.

I have a theory about this flurry of activity in the Middle East. The Donald is not a strategic thinker. He really doesn’t care about the Middle East unless it impacts him and his bottom line. Kushner is smarter but mans the other oar in the same boat. My theory is that they’re scared to death of the future. Both are highly leveraged with all that debt coming due in the next few years. 

We know that no respectable bank will loan to Trump. Deutsche Bank bailed him out last time – probably with laundered Russian money – but DB is unlikely to step up for the next bailout while they are under investigation for bank fraud and money laundering. Kushner was saved from a $1.4 billion default on his 666 Fifth Avenue property when a Canadian investment bank backed by the sovereign fund of Qatar stepped in at the last minute. 

So, where will they go for money next time to keep their pyramid schemes from imploding? Trump is beholden to Putin for something. We don’t know exactly what, but he’s been Putin’s “useful idiot” for four years because of it. Loyalty is the password in Trumpworld, but not in Putin’s. Despite his offer to “gift” the Russian president the penthouse of a glitzy new Moscow Trump Tower, I’m betting Putin will throw him under the bus as soon as his “useful idiot” is no longer useful.

Under the circumstances, my best guess is that all this last-minute activity – selling out the US to support Netanyahu’s claim to the West Bank and Golan Heights and the sale of extensive military hardware, including missiles and maybe even F-35 fighters to Saudi Arabia – aims at getting Trump/Kushner a lock on Saudi money (maybe even UAE money) in the future. This unholy alliance of two centuries-old Middle Eastern enemies is designed to handcuff the US in its dealings with Iran, legitimize Israel’s land grab on the West Bank, rehabilitate MBS’s reputation following the Khashoggi murder, and give Trump a tiny bit of revenge against Biden for the loss of the election.

There is something about this last 55 days of Trumpworld that has the feel of Dr. Strangelove or How I Learned to Stop Worrying and Love the Bomb.

Don’t worry. He went to Jared…

Disclaimer: It gives me no pleasure to write about Trump and his posse, but I think it’s important to show what I believe to be the depth of their wrongdoing and the geopolitical consequences. I try to give it a spin that’s interesting and sometimes even darkly funny, but I can’t wait to see the end of this nightmarish period in our history.

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When Donald Trump contracted the Covid-19 virus in October, he was medevac’d by helicopter to Walter Reed National Military Medical Center where a team of 12 doctors monitored his vital signs, supplied him with supplemental oxygen, injected him with Remdesivir, a viral inhibitor, and gave him Regeneron, an experimental antibody cocktail not yet approved for general use. Mr. Trump recovered from the virus at an estimated cost of $100,000 not counting the helicopter ride to and from the White House. American taxpayers paid for all of it.

In an irony of ironies, if you’re one of the 20 million Americans whose health care is covered by the Affordable Care Act (Obamacare), the guy whose medical bills you just paid is trying hard to take your coverage away.

Unfortunately, American taxpayers don’t have access to Mr. Trump’s level of care. What they have is a confusing mix of private, government, and employer-based insurance plans anchored by the Affordable Care Act (ACA), Medicare, and Medicaid. 

The ACA, enacted by Congress in 2010, was the best Congress could do, at the time, to offer uninsured Americans, including those with pre-existing conditions, healthcare coverage. Since its passage, ACA opponents have tried to “repeal and replace” (mostly repeal) it at least 70 times (Newsweek) and have taken it to the Supreme Court twice—most recently last week—in an effort to have it declared unconstitutional.

Here’s the great mystery… why would any American want to prevent other Americans from having access to affordable health insurance? We’re in the middle of the worst pandemic in 100 years. Over 250,000 fellow Americans are dead, many others hospitalized, millions have lost their jobs. The ACA is their healthcare safety net, yet conservatives want it repealed without offering a replacement plan. 

According to the Center for American Progress, if the law is invalidated more than 20 million people will lose their health coverage and 135 million with pre-existing conditions (including Covid-19 survivors) will be left without access to affordable insurance.

Conservatives argue the law amounts to socialized medicine, an argument left over from Ronald Reagan’s “red menace” conservativism, yet the law is overwhelmingly popular. The argument escapes me; their America already has Social Security, Medicare, public education, food stamps, TSA, air traffic control, and subsidized agriculture. There are laws mandating drivers licenses and automobile liability insurance. So why is health care such a socialist threat?

The Commerce Clause of the US Constitution grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” From its earliest history the court judged commerce to mean “the activity of selling, trading, exchanging, and transporting goods and people, as distinct from producing the things being moved.” In a 1944 Supreme Court case (United States v. South-Eastern Underwriters) commerce was deemed to include “a business such as insurance.” (National Constitution Center)

I’m not an originalist, a textualist, or any kind of constitutional scholar but one approach to legal interpretation I learned in law school is “the plain meaning rule.”  There is a presumption in favor of the plain meaning of a statute’s words. Congress has the power to regulate commerce, including insurance, under the authority of the Commerce Clause. The plain meaning is clear.

I’m not covered by the ACA. As an older American I qualify for Medicare, but this case is more important than how it affects me. It affects millions of my fellow Americans. Here’s the overview of its history:

• The final version was signed into law by President Obama on March 23, 2010. As a condition of its passage, health insurance was made “mandatory” for all adult US citizens. This provision, referred to as the “individual mandate,” was inserted to ensure the “risk pool” included enough healthy people to lower and spread the cost across all enrollees. The mandate included an opt out provision such that if the taxpayer opted not to purchase insurance he or she would pay a penalty. This provision was inserted to prevent people from waiting until they got sick to purchase insurance. Buy now or pay a penalty.
• The mandate’s constitutionality was challenged by taxpayers in several states as a violation of the Commerce Clause. Could the government order all Americans to purchase health insurance? The challenge asserted the mandate was an unconstitutional application of the Commerce Clause and therefore not within Congress’ authority. 
  • The case reached the Supreme Court in 2012 where the law was upheld in a 5-4 decision with Chief Justice Roberts holding that the mandate’s “penalty” was a valid exercise of Congress’ power to tax and not a Commerce Clause issue.
• Attacks on the law’s constitutionality continued even after Congress repealed the penalty (tax) provision in 2018. The Supreme Court granted a second hearing in the 2020 term when the Fifth Circuit Court of Appeals ruled the mandate unconstitutional and so integral that the entire law should be invalidated. This is the case the Supreme Court heard last week. It was brought to the court by the Texas Attorney General, 26 Republican attorneys general, and the Trump Justice Department, arguing that the mandate is so integral to the ACA that if it is unconstitutional the whole law is unconstitutional.
• On Tuesday November 10, one week after the Presidential election and eleven days after the installation of Amy Coney Barrett as an Associate Justice, the court heard oral arguments with a decision expected before the end of the 2020 term in June.

I got up early on November 10^th (Marine Corps birthday) to listen to the oral arguments on C-Span 1. This is really dry stuff, but it might be life or death for those covered by the law. If you’ve never listened to oral arguments, I recommend it. The Chief Justice controls the questioning, the proceeding is formal, and the participants all respectful. Very different from the political dialogue of our time.

Oral argument, in this case, turned on two legal questions: did the plaintiffs (the challengers) have “standing” to bring the case and if they did would their argument “on the merits” persuade the justices to rule the ACA unconstitutional? On the first question, plaintiffs had to show they suffered “damages.” You can’t just show up at the Supreme Court (or any court) and complain about a law without “standing” i.e., that you’ve been injured by it.  If not, you don’t get to argue the “merits.” or substance of the case. Texas claimed financial injury caused by the burden of increased paperwork. Sounded weak to me.

On the merits side, the plaintiffs argued that because the individual mandate was ruled unconstitutional by the Fifth Circuit, the entire law was flawed and should be declared invalid. It’s often difficult to read the outcome of a case from the justices’ questions but it seemed that the Chief Justice and Justice Kavanaugh were both skeptical that the mandate (repealed by Congress in 2019), even if unconstitutional, should invalidate the whole law. Their questions turned on “severability,” a doctrine that says if one part of a law is invalid the remainder can be saved by severing that provision and leaving the rest intact. Since Congress had already zeroed out the mandate’s tax provision and it was no longer a factor, severing it from the larger act would allow the law to remain in force. Most of the legal commentators agreed that it is likely the ACA will survive. The ACA is not perfect, but Congress has a chance to improve it. We’ll see if Congress under a new administration has any appetite for work. The ACA can’t be fixed by Executive Order. It will take bipartisan Congressional support to make the necessary changes. My fingers are crossed.

62 days remaining until the inauguration and we can breathe again.

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