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Doug Kmiec - Pepperdine Law School

About Doug Kmiec

Douglas W. Kmiec is Caruso Family Chair and Professor of Constitutional Law, Pepperdine University. He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush, a position previously held by the late Chief Justice Rehnquist and Justice Scalia in the Nixon and Ford administrations. (Kmiec started out in the Justice Department sharing an office with another young lawyer, Sam Alito). Professor Kmiec is the former Dean and St. Thomas More Professor of the law school at The Catholic University of America, where his high standards for intellectual rigor, faculty and student recruitment, and positive faith commitment helped moved the CUA law school into the upper tier of the U.S. News rankings. For nearly two decades, Professor Kmiec was also a member of the law faculty at the University of Notre Dame. At Notre Dame, he directed the Thomas White Center on Law & Government and founded the Journal of Law, Ethics & Public Policy. Professor Kmiec has been a White House Fellow, a Distinguished Fulbright Scholar on the Constitution (in Asia), the inaugural Visiting Distinguished Scholar at the National Constitution Center and the recipient of numerous additional honors. His published work is wide-ranging, including four books on the American Constitution, several legal treatises and related books, and hundreds of published articles and essays. He is a frequent guest in the media analyzing constitutional, cultural, and political developments. With his wife, Carolyn Keenan Kmiec the director of a fine arts program for disadvantaged children at Pepperdine, he has five children, two of whom have taken up the law as their vocation.

The Memorial Day Economics of John McCain -- Can the Average American Afford Him?

John McCain is a well-intentioned man. As I write on this Memorial Day week-end, one cannot help but admire his service and love of country. But long-ago patriotism and good intention alone are not enough to meet the economic concerns of the average working person in the United States. 

The American economy has soured; gas prices are intolerable for minimum-wage workers and constraining of freedom of movement for us all. For the first time in our adult lives, many will not be traveling this weekend to visit family, and it will not be by choice. Fair or not, McCain is saddled as he makes his case to the voter with the economic consequences wrought by the incumbent president. A President from the energy industry who never bothered in his eight years in office to formulate a responsible energy policy and who now  begs for Saudi oil from sheiks who proclaim unlimited supply  at their over the barrel price. 

The Iraq war whatever its original objective lumbers on at staggering costs without a definition of success or purpose. Some months ago, it was calculated that the war is costing $720 million a day or $500,000 a minute, according to the work of Nobel Prize-winning economist Joseph E. Stiglitz and Harvard public finance lecturer Linda J. Bilmes.  The money spent on one day of the Iraq war could buy homes for almost 6,500 families or health care for 423,529 children, or could outfit 1.27 million homes with renewable electricity, according to the American Friends Service Committee.

This week John McCain had a pleasant meeting with Silicon Valley executives who are some of the best and the brightest entrepreneurs in this country and who are naturally anxious to have corporate investment credits and a continuation of the Bush tax cuts on capital gains. The Senator was quick to reassure this assemblage of talent that his administration would have this highly compensated group foremost in mind. There is little denying that high-end tax reductions have benefited the affluent in sometimes staggering, if not unconscionable, ways. It is of course also true that the magnitude of wealth enjoyed at the top of our economics spectrum produces a disproportionate share of the revenue for the government, a fact that McCain often repeats.  But given the government’s profligate expenditures on war, why again should a middle income or average taxpayer be cheered by an increase in what the government spends? 

Yes, lowering tax rates at the top and on investment do yield additional job opportunities, but do they pay a family wage? Or are the vast bulk of these new jobs insufficient to cover the cost of a mortgage now in default, past due college loans for oneself and one's children, the ever increasing cost of transportation, or possibly under Senator McCain's plan, even the cost of health insurance that as he sees it no longer should be provided through one's employer? McCain's health plan decouples health insurance from the employment relationship shifting the cost substantially if not entirely to individuals. McCain does propose a personal tax credit of $2500 for individuals and $5,000 for families to subsidize the acquisition of private insurance, but there are several notable problems.

First, there is no existing individual health insurance market capable of providing such coverage. It is estimated that the administrative costs of individual policies are three times that of employer-based policies. In addition, the new arrangement would be especially costly, if available at all, for older Americans with pre-existing conditions. Right now, when insurance is purchased through employers these greater insurance risks are mixed into the larger employer pool and thus offset by the healthier and younger members of an employer’s workforce. This would disappear under the McCain structure. Conceivably, state insurance regulation could mandate coverage of those with pre-existing conditions or create insurance pools that could even out the premium expense across a larger number of individuals. 

But this is not McCain's plan. He is banking on a deregulation of the insurance industry that would free insurers of even existing state regulation.  McCain proposes to allow health insurers to sell in every state any policy approved in any state. The least regulatory state would thus govern them all.

Clearly, Senator McCain is putting great faith in the free market to supply insurance products at the best combination of price and coverage. There's no reason to doubt this principle of economics for those who can afford it. For people up in age or in poor health or of a modest income, however, there is good reason to believe that the market will by the rational principles of economics declare them to be uninsurable.   

John McCain during the primary confessed not to have a strong grasp of economics. That turns out not to be entirely true. John McCain and his advisers well understand how the economic system works for those who are capable of investing in it. For millions of average Americans, however, just trying to support a family, John McCain appears to lack an understanding of their economic plight, and by what he proposes, any empathy for it.

This will be my last essay for the “talking justice” blog. Like those Americans who have run short of resources to stay afloat, NPR’ s justice talking apparently lacks the wherewithal to sustain this forum of commentary. I hope my occasional contributions have met the high and intelligent standard that is associated with National Public Radio and its coverage of public events.

Published Friday, May 23, 2008 8:03 PM by Doug Kmiec

© Doug Kmiec. All rights reserved.

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