Wednesday, March 28, 2012

Hubris stands before the court.

I believe that the Supreme Court will uphold the individual mandate that is at the core of Obamacare by a vote of 6-3. Based on no legal theory whatsoever, I expect Chief Justice Roberts and perennial swing vote Justice Kennedy to vote with the Liberal wing to uphold the act of Congress.

OK, maybe expect is a strong word. Hope would be better. But it's not about the law, it's about the Court itself.

Spending last week in our nation’s capital, I listened to the astonishing vitriol of members of Congress and other publicly spirited Americans expressing their outrage at a law that would, to summarize their argument, bring the full weight of tyranny to our shores and mark the end of freedom in America. In the view of the assembled masses, should the Supreme Court fail to act—or the people in some other form fail to rise up—ours will be the generation who will have to explain to our grandchildren why we let freedom and liberty, our most hallowed values, die on our watch.

Lost in the arguments of conservatives and right wing activists was the fact that the individual mandate—the essential element that would bring tyranny to our homes—was initially raised as the preferred strategy for healthcare reform by the right. Dating back to 1989, the Heritage Foundation articulated the view that an individual mandate to purchase health insurance—rather than government provided healthcare or an employer mandate proposed by Democratsshould be a central element of healthcare reform:

“Society does feel a moral obligation to insure that its citizens do not suffer from the unavailability of health care. But on the other hand, each household has the obligation, to the extent it is able, to avoid placing demands on society by protecting itself... A mandate on households certainly would force those with adequate means to obtain insurance protection."

Three years later, the Heritage Consumer Choice Health Plan went further:

“Require all households to purchase at least a basic package of insurance, unless they are covered by Medicaid, Medicare, or other government health programs.

"All Heads of households would be required by law to obtain at least a basic health plan specified by Congress...

"The private insurance market would be reformed to make a standard basic package available to all at an acceptable price."

The moral rationale for the individual mandate was stated succinctly at the time by Heritage Foundation Senior Fellow Robert E. Moffitt:

"Absent a specific mandate for at least catastrophic health insurance coverage, some persons, even with the availability of tax credits to offset their costs, will deliberately take advantage of their fellow citizens by not protecting themselves or their families, with the full knowledge that if they do incur a catastrophic illness that financially devastates them, we will, after all is said and done, take care of them and pay all of the bills. They will be correct in this assessment...

"An individual mandate for insurance, then, is not simply to assure other people protection from the ravages of a serious illness, however socially desirable that may be; it is also to protect ourselves. Such self-protection is justified within the context of individual freedom; the precedent for this view can be traced to none other than John Stuart Mill."

What has changed, of course, is not the logic of the Heritage Foundation's argument, but the politics. The individual mandate—a public policy that was central to Republican healthcare reform alternatives to Hillarycarebecame anathema to the right by the time it was finally embraced by Democrats as an alternative to the left’s preferred single-payer or employer mandate approaches. A Cato Institute attack in 1994 on the Republican embrace of the individual mandate foreshadowed the current attacks on Obamacare, and illustrates the drift to the right in Republican policymaking in the Tea Party era:

“The most troubling aspect of the Nickles-Stearns [Republican healthcare reform] legislation, as introduced on November 20 [1993], is the mandate that it imposes on all Americans to purchase a standard package of health insurance benefits. By endorsing the concept of compulsory universal insurance coverage, Nickles-Stearns undermines the traditional principles of personal liberty and individual responsibility that provide essential bulwarks against allintrusive governmental control of health care."

In the late 1970s, Duncan Kennedy and the crits created turmoil within the hallowed halls of Harvard Law School by offering the horrific—if self-evident to many—observation that law and the courts are a tool of social power. This month, conservative jurist J. Harvie Wilkinson published Cosmic Constitutional Theory. Wilkinson, a federal appeals court judge often mentioned as a Republican Supreme Court nominee, mirrored Kennedy and the crits in his March 11, 2012 op-ed arguing in his opening paragraph that liberals and conservatives alike have conspired to undermine the role of law and the courts in our society.

“Both liberals and conservatives have the American Constitution in the cross hairs. They assault the Constitution in their different ways, each with damaging effects on our nation. Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other. Liberals, when it suits them, embrace rights that have not been enumerated in the Constitution and cry for restraint only when their pet bills come under fire. The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.”

Wilkinson essentially argues for leaving political decisions to those elected to make political decisions, and suggests that the grand legal theoriesfrom the jurisprudence of original intent on the right to living constitutionalism on the leftare simply covers for justifying the use of the judicial branch as a tool to achieve political goals.

For many, the swift and party-line action of the Supreme Court in Bush v. Gore deeply damaged faith in the Court as a reasoned arbiter of our political system. But that was a unique circumstance. This week’s argument, as Judge Wilkinson makes clear, is specifically about whether a politically motivated majority on the court will act to directly overturn an act of Congress simply because they want to, and because they can.

During the second day of arguments, Justice Antonin Scalia suggested to Solicitor General Donald Verrilli that allowing the individual mandate would lead to a world where Congress could compel Americans to buy broccoli. Scalia's question would have been more insightful had it not simply mimicked conservative talking points circulating the prior the weekend making the argument that to let the individual mandate stand would lead to a world where the government would make us buy broccoli and GM cars. Hearing Justice Scalia use an argument from conservative talking points illustrated Wilkinson's argument that the high court may have reduced itself to just another player in our ongoing political wars, and placed at risk its cherished role as the last refuge of integrity.

The history of the individual mandate is what makes this circumstance so defining. The individual mandate began as a conservative doctrine, embraced early on by conservative Senators who today attack the same policy with no sense of shame or irony. Far from being the hallmark of tyranny, the individual mandate under Obamacare marks the success of the Republican Party in pushing Democrats to the right, to the embrace of market solutions over the employer mandates or single payer options.

This case is not about tyranny. It is not about broccoli. In a sense it is not even about the Commerce Clause. At the end of the day, it is about whether those on the Court are prepared to step back from the abyss that Wilkinson describes, and leave the making of lawsand our political debates—to Congress and the President. By the third day, the arguments went beyond the constitutionality of the individual mandate to overturning the entire act of Congress, as specifically argued by former Solicitor General Paul Clement, representing the 26 states challenging the law.

There were no cries of tyranny from the right when the Heritage Foundation first proposed the individual mandate, and those cries today are nothing more than one more manifestation of our political wars—wars in which those on the Supreme Court engage at theirand our—peril. Paul Clement's argument that they entire law should be shunted aside by the Court demonstrated how far the Court has drifted toward becoming just one more tool of the political combattants.

Chief Justice Roberts and Justice Kennedy—the most likely swing voteshold in their hands the question of public faith and confidence in the Supreme Court. I believe that they will each ultimately choose to validate that faith. And I hope they will validate that faith, because even more than healthcare, our society needs a Supreme Court that we can all have faith in.

Saturday, March 24, 2012

Moving on.

It is now over, perhaps someone will tell Rick and Calista.

This week, Jeb Bush quietly endorsed Mitt Romney—silencing the quiet yearning of Republicans who for months have hoped that Bush might yet emerge through a brokered convention—and Tea Party leader Jim DeMint urged Republicans to embrace him. For all the sturm und drang, the Republican Party’s imitation of a Democrat nominating fight seems to finally be over.

Further evidence of this emerging political reality could be seen in Santorum’s increasingly shrill rhetoric. First, standing in the ashes of his Illinois primary defeat, Santorum sought to raise the stakes—and the hyperbole—when he suggested that this presidential race was “the most important election since the election of 1860.”

Santorum seemed to lack any sense of irony in his comments. The notion that we are at a sesquicentennial moment—that our liberty and freedom, our status as a unitary nation, are at a moment of transcendent risk—might make one wonder why Santorum is the best his party could offer in such a moment. Such moments might call for yet another Bush, but despite his admirable passion for the cause, Santorum has failed to make the case beyond a narrow spectrum of the national electorate.

There has been a lot of gloating on MSNBC over the past few weeks, as the Republican kerfuffle seemed to push the Republican Party and its presumptive nominee out to the political fringes of the national polity. Just one week after the Republican trans-vaginal episode in Virginia, they seemed intent on getting decked out in full genitalia, as Santorum and Limbaugh insisted on adding contraception to the public debate.

This week it was Romney political strategist Eric Fehrnstrom’s suggestion that his candidate would not be hurt by a primary campaign that focused on issues that would not play well in a general election, when he observed that “I think you hit a reset button for the fall campaign. Everything changes. It’s almost like an Etch A Sketch. You can kind of shake it up and restart all of over again.”

But while Santorum and Newt eagerly displayed their Etch A Sketch props, and Democrats eagerly piled on, few seemed to acknowledge that despite all the fun of the moment, Fehnstrom is largely correct in his observation. If there was enduring damage in the Etch A Sketch comment, it is in the apt metaphor it has offered for Fehnstrom’s candidate, not for his campaign.

Come the fall, there will indeed be a new starting line, and the President will be hard pressed—much as his advisors might love the thought—to keep contraception on the front burner. While Obama’s re-election team moved quickly to seize the high ground in the wake of the Republican genitalia offensive and launch its Women strategy, the irony could not have been lost on any who have read Ron Suskind’s Confidence Men, a rather thorough smear of the President as manager and team leader of a misogynist horde—led by since-dismissed Larry Summers and Rahm Emanuel.

The Women strategy will matter, because for all the premature victory cries on MSNBC when the whistle blows starting the fall race, Obama and Romney will be somewhere around 45-45 and the fight will be over the remaining 10%. Just like Hillary’s supporters who came around to vote for Obama, the Republican right will be sufficiently motivated to show up on November 6th by visions of Barak Obama’s second term that they will get past the fact that they have no idea what Mitt Romney actually believes.

Romney will have the opportunity to start again and run the campaign he wanted to run all along. Even today, in the midst of the Santorum onslaught, Romney’s campaign’s website says nothing about social issues. The issues are jobs and growth, foreign policy, and managing the government. The only reference to social or cultural issues is the masthead statement “We have a moral responsibility not to spend more than we take in.”

And he will get to run that campaign in a limited number of states. Looking back at 2008, Obama soundly defeated McCain 365 to 173, for a 192-vote electoral college margin. Obama won the electorate in order of age, with the strongest margins among 18 to 24 year old voters, and the highest share of the youth (66%) vote going back to 1972, as well as the highest share of women voters (56%) over the same timeframe.

The other group where Obama outperformed compared to recent electoral history was his winning of the moderate vote, with 60%, the highest share for either party over this same timeframe. And this is where Romney has intended to take the fight.

A moderate governor from a blue state, this was going to be Romney’s battle plan and battleground. And it still will be.

His focus will be on a handful of states, with few surprises, that could comprise a path to the 96 votes that Romney needs to win. He has to win back traditionally red states Indiana and North Carolina, as well as Virginia. Then he has to add Colorado and Nevada or New Mexico. Each of these states has sizable Mormon populations, a significant Tea Party presence, and were strongly contested in statewide races in 2010. And then there are Florida and Ohio, notorious battleground states that were each won by Obama by 200,000 votes four years ago.

The VP selection generally does not have much impact beyond one state, but in this equation, one state matters. Romney will not pick Santorum, just because it is his choice and he has to have more self-respect than to pick a guy who has savaged him so brutally. That leaves Florida Senator Marco Rubio, Virginia Governor Bob McDonnell and Ohio Senator Rob Portman as likely candidates to buttress his chances. But despite his Tea Party cred, Rubio is simply too young. McDonnell has to have been soiled by the transvaginal ultrasound affair, and certainly Romney wants to stay away from the word vagina. That leaves Rob Portman.

That would be a reasonable strategy looking at the electoral path to winning those 96 votes. Romney can lose Florida as long as he wins Pennsylvania. And he should win Pennsylvania if he wins Ohio. Hard to imagine he wins Ohio and Pennsylvania and loses Virginia. And he simply cannot count on Florida, even though Obama's margin was thinner in Florida than Ohio or Virginia, both because of Republican punting of Latino voters, and just because it is... Florida.

The election results in 2008 and 2010 point to a central question about 2012: Who will show up. The 2010 electoral rebuke of the President was not so much about a change in the national mood as much as a change in who showed up—a notably older and whiter slice of America than in 2008.

Obama will be well-served to focus on women, as the Republican gender gap—already wide—has only been exacerbated. While Rush Limbaugh has long set the direction of Republican national strategy, his is a rhetoric best kept to true believers.

The challenge for Romney will be to craft a positive message that charts and alternative direction for the country. His stump speeches lack either philosophical or policy vision. Instead, he is defining himself purely against the President—a political vesion of Professor Quincy Adams Wagstaff, Groucho Marx’ eloquent character in Horsefeathers: Whatever the President say, whatever the President does, Romney is against it.

The fall campaign will not be about anything that Mitt Romney and Rick Santorum are arguing about. And the national media has even caught up with the fact that arguments about the price of gas have long been the staple of political campaigns and ignore the reality of commodity pricing and markets.

Eric Fehrnstrom is correct. The slate will be wiped clean in the fall. The challenge for the Romney campaign will be to articulate an alternative, more conservative vision of the nation, and in the fall campaign Whatever he says, whatever he did, I’m against it is unlikely to suffice. There are many compelling and traditional Republican themes that one might embrace—perhaps smaller banks, ending government-by-lobbyist, curtailed foreign entanglements, and of course fiscal responsibility. However, while Romney's website asserts the moral responsibility not to overspend, in his stump speech he pledges not to touch Medicare, which raises the question of how Romney balances his sense of moral obligation in the face of political exigencies. This is his Etch A Sketch problem.

For his part, the President’s reelection may yet rest on factors beyond his control. He has doubled down on claims that we are out of the economic woods, yet that remains a tenuous claim. And then there is Iran. Supreme Leader Ali Khamenei may yet meddle in our elections, and for all the debates over Obamacare, the President’s reelection may yet be influenced as much by issues of war and peace as by individual mandates and the commerce clause.