Thursday, June 28, 2012

Obama Won by Losing: Thoughts on the Health Care Decision

President Obama won by losing on Thursday.  Yes his health care legislation was upheld but it came at the expense of federal power and perhaps further losses down the line in terms of civil rights and other forms of federal power. The media will report that by a 5-4 decision the Supreme Court affirmed the individual mandate and upheld the Obama Health Care Act.  But a tighter and more thorough reading demonstrates this to be a very conservative decision and Obama lost big legally.

Congress passed and the Obama administration defended the Patient Protection and Affordability Care Act primarily on Commerce Clause grounds.  Their argument was that Congress under the Commerce clause (giving them the power to regulate interstate commerce) justified the imposition of the individual mandate.  They cited an important 1938 New Deal case Wickard v. Filburn as precedent.  Five justices rejected this argument.  Chief Justice Roberts along with the four dissenters contended that Congress may not compel an individual to buy health insurance because individuals who do not have insurance where not engaged in the activity of interstate commerce.  Instead, the individual mandate compelled them to enter commerce.  They used this argument to distinguish this health care regulation from the regulation in Wickard where in that case a farmer was growing wheat for personal consumption and not sale and the Court said that this still constituted commerce.  In that case the farmer was doing something, here people who do not buy insurance were not engaged in commerce.

The broccoli argument here was persuasive.  Roberts alluded to broccoli once and the dissenters specifically mentioned it 12 times in their opinion.  They agreed that by the logic of the Obama administration the federal government could force us to buy broccoli because it is good for us.  Thus, the individual mandate to buy health insurance is not something that the federal government can do.

Yet the backup argument by the Obama administration was that Congress’s power to tax saved the mandate.  Yes, sort of.  Roberts again drew on another landmark New Deal case United States v. Darby.  Here a New Deal Court affirmed a law under Congress’s taxing power to regulate and eliminate child labor.  In the health care case on Thursday Justice Roberts and the four liberals affirmed the individual mandate as a tax.  They contended that no one is required to buy insurance  but if they do not then they have to pay a tax.  Thus, contrary to media reports, Congress cannot compel us to buy health insurance, but they can tax us if we do not.

Some may state this is a difference that does not make a difference.  This is not true.  The four liberals on the Court would have affirmed the individual mandate on Commerce clause grounds in addition to the tax claim but Roberts only supported it on taxing power.  What are the implications?  In the last 50 or so years major legislation on civil rights and many other regulatory issues have been affirmed in part on Commerce Clause grounds.  This decision today actually trims back the Commerce Clause power of the federal government, raising questions about the Voting Rights Act and other civil rights legislation in the future.  This is the case both because of a weakened Commerce Clause and also because it suggests a Court perhaps less sympathetic of federal power than thought.  All this is significant especially in light of state challenges to legislation in these areas.

Yes, Obama got a win on Thursday.  He had a good week.  Housing prices are going up, gas prices going down, and he has clear leads in Ohio, Florida, and Pennsylvania.  He won the Arizona case too. But the health care victory is a pyrrhic one at best.  It is not a major expansion of federal power but a contraction.  Justice Roberts gave the president very little and he actually was a genius.  He agreed with most of the conservative dissenters while making it look like the Court is above politics and in the process preserved its institutional image.  Obama won by losing today.

Wednesday, June 27, 2012

Bets on the Health Care Decision (Obamacare)

Should have done this sooner but any bets or predictions on the health care vote and decision or tomorrow?  Reporters have asked me repeatedly for predictions.

I say either 6-3 to uphold the individual mandate (Roberts majority opinion) or more likely 5-4 to strike down the individual mandate on commerce clause grounds (maybe upheld on taxing authority). Everyone here predicts here that Kennedy writes the opinion and safe money is here.  However, given the AZ v. US opinion, I go with a less orthodox answer with Roberts also as the author.  The case was badly argued and based on that Obama should lose but precedent is with the government on this.  I say 55-45 probability that the mandate is gone.  Precedent is not in favor with this Court.

The rest of the law remains in place.  Kennedy will not upend that many settled expectations (see the Planned Parenthood v. Casey decision on this).

Low probability of dismissal on ripeness or rescheduling for a new hearing.

Other bets:
Broccoli is mentioned at least 5-6 times in the various decisions.

Scalia rails on and on no matter the outcome.

The final decision is 150+ pages.


This is the most difficult prediction I have ever had to make.

Thursday, June 21, 2012

Why sloppy drafting will kill the photo-ID amendment

 Today's blog appeared in the Community Voices section of Minnepost on June 21, 2012.

Whatever the merits of the Minnesota voter photo-identification amendment, chances are that it provisions will not take effect soon, if at all, even if adopted by voters this November.

The reason is not that it is a bad bill, which it is, or that it will do little to combat the virtually nonexistent in-person voter fraud in the state, which is also the case. Instead, the amendment's authors did such a horrible job of drafting it that either the Minnesota political process or the courts will prevent it from ever going into effect.

Criticism of the voter-ID amendment has centered on the issues of fraud, disfranchisement and cost. Critics contend that it is a solution in search of a problem. Two major recounts have demonstrated that in-person voter fraud is de minimis and that what little that does exist will not be remedied by photo identification.

Additionally, the argument is that the photo-ID requirements will disenfranchise many populations, such as the elderly, students, the poor, and people of color.

Finally, critics assert that the photo ID will cost the state and local governments millions to administer, while also inflicting personal costs on individuals. All these are valid criticisms, but none of these speaks to the problems with the amendment that will prevent it from going into effect.

The single-subject rule
Assume the voter-ID amendment does pass this November, what then? The first major defect is that it violates the single-subject rule. Article IV, section 17 of the Minnesota Constitution states: "No law shall embrace more than one subject, which shall be expressed in its title." Minnesota, similar to what is found in approximately 40 other states, mandates that a specific bill or law include only one subject. This rule also applies to constitutional amendments in Minnesota.

Courts across the country have taken an aggressive position in recent years applying the single-subject rule, especially to ballot propositions and constitutional amendments, to invalidate measures voted on by the people. The reason is simple: Voters should not be forced to vote yes or no on ballot propositions that contain more than one subject, especially if they object to one of the provisions. Imagine a constitutional amendment asking voters "Should the mosquito be named the state insect and abortion banned?" I may oppose abortion or dislike mosquitoes and forcing a yes or no on the entire proposition makes it difficult for voters to express their true preferences.

Consider the voter ID proposal language put before the voters: "Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?" This ballot question has two subjects: One refers to presentation of a valid photo ID and the other to requiring the state to provide free identification.  Conceivably, a voter could favor presentation of voter photo ID but not providing free identification, or vice versa.

In the last few years in cases such as Unity Church of State Paul v. Minnesota (2004), and Associated Builders and Contractors v. Ventura (2000), the Minnesota courts have aggressively enforced the single-subject rule, and there is no reason to think they will not do so here. Thus, even if the voters approve this amendment, it is likely the amendment  falls to the single-subject rule.

But backers of the amendment were stuck. Courts across the country have invalided voter identification bills under state or federal constitutional clauses because they did not provide for free identifications. This happened, for example, in Georgia. Voter-ID supporters thus had to attach this provision to the constitutional amendment. Were this ordinary legislation maybe the free ID would have survived single-subject, but as a constitutional amendment it creates problems for voters in making their choices.

The enabling problem

Again assume voter ID passes this November. The amendment requires additional enabling legislation to go into effect. Unless the Republicans obtain veto-override majorities, Gov. Mark Dayton can simply veto any enabling legislation, rendering the voter ID amendment unenforceable. Assume the DFL takes back one house of the Legislature; it can refuse to act. In either case, the amendment is dead. Assume the DFL takes back both houses; then either the Legislature does nothing or it enacts  enabling legislation so watered-down that it meaningless.

GOP Rep. Mary Kiffmeyer contends no enabling legislation is needed, since the constitutional amendment is self-executing or self-enforcing. She is wrong.

First, in Freeman v. Goff (1939) the Minnesota Supreme Court stated that constitutional provisions are presumed directory or mandatory. The presumption is that they must be enforced as described in the amendment unless there are other reasons to think not. But the voter-ID amendment cannot be enforced as written without enabling legislation explaining critical terms such as what constitutes a "valid" photo identification. The vagueness of this word dooms enforcement, leaves public officials open to charges of abuse of discretion, and raises potential due-process and equal-protection violations if they simply try to enforce the requirements as written.

The precedents
More important, repeatedly Minnesota courts have long declared in cases such as  Willis v. St. Paul Sanitation Co. (1892), State v. Kiewell (1902), State v. McColl (1914), Aase v. Langston (1928),  Payne v. Lee (1946), and In re Wretlind (1948) that: "Prohibitive clauses of the constitution such as the due process clause are self-executing and require no legislation for their enforcement."

By that, generally Bill of Rights provisions that limit the state and protect individual liberties are self-enforcing, whereas provisions that direct the state to do something require enabling legislation. In the case of the voter-ID amendment, at the very least the state is required to provide free identifications, necessitating enabling legislation defining what is considered a valid ID and how it will be distributed.  The same is true when it comes to the first part of the amendment, requiring presentation of a "valid" photo identification. Again, what constitutes valid? This, too, requires enabling legislation to clarify and implement.

Overall, the potential political landscape after the November elections, as well as firmly entrenched state and federal constitutional principles, are enough to bog down and prevent enforcement of the voter-ID amendment for years even if it does pass this November. Millions of dollars will be wasted on this amendment in an effort to pass, defeat, and litigate it, and taxpayers will be angry no matter the result.

When that happens, supporters of the amendment can blame themselves and the authors of it for sloppy drafting that doomed the amendment from the start.

Wednesday, June 13, 2012

The Uniqueness of the 2012 Election

This blog originally appeared as a June 5, 2012 National Public Radio digital news story by Linton Weeks. My comments are featured in a story about what is unique about the 2012 elections.

Volunteers unfurl a banner with the Preamble to the Constitution during a demonstration against the Supreme Court's Citizens United ruling on campaign finance rules at the Lincoln Memorial in Washington, D.C., Oct. 20, 2010.
All U.S. presidential elections "are unique in some fashion," says John G. Geer, a political science professor at Vanderbilt University.

Sure, but what about 2012? What exactly will make the 2012 election between President Obama and Mitt Romney truly unique?

For one thing, though the candidates have many similarities, as noted by NPR and The New York Times, there is a clear-cut choice between directions the country might take.

And there are other — what shall we call them? — uniquities.

Carol S. Weissert, director of the LeRoy Collins Institute — a nonpartisan public policy think tank in Tallahassee, Fla. — points out that the presidential election in November will be the first since the 2010 Citizens United Supreme Court opinion that opened the barn door to unregulated spending in all political campaigns — but especially presidential campaigns.

"We're seeing some glimpses of what unregulated spending is doing in the Wisconsin recall," Weissert says, "but we haven't seen anything yet."

And, she says, it'll be the first election during a time when our country's economic well-being is linked in large part with Europe's economy. "If the eurozone collapses — or maybe when," Weissert says, "this will shake the core of our economy and affect the presidential election. And there is little we can do about it but watch."

The 2012 election, says Caroline Tolbert, a political science professor at the University of Iowa, will be sui generis in several ways. Never before has this country seen an African-American incumbent president run for re-election, she says. And never before has there been a major party nominee who was a Mormon.

Tolbert also cites the president's mad skills at digital campaigning and politics. "Obama has 26 million likes on Facebook," she says, "compared to less than 2 million for Romney."

For David Schultz, a public policy professor at Hamline University in St. Paul, Minn., the approaching election "is about an America that is divided by a partisan politics of nostalgia versus a politics of tomorrow."

Schultz, who also teaches election law at the University of Minnesota's law school, says the country is at a critical crossroads. One path will determine how America responds to its global role and ranking in a hyperdynamic world.

"The second path America is crossing is demographics," Schultz says. "We are witnesses to a country where one generation of citizens — the baby boomers — are waning in influence and are being replaced by a new generation sharing a different agenda than those who came of age during the 1960s. This election is about the end of the 1960s as a defining moment in American politics. The other demographic change is racial. We are seeing a growth in the strength of people of color, as their numbers increase and the white majority recedes to a white plurality."

The third path, Schultz says, leads to a war over wealth that this country has not seen in a century.

"America is economically more unequal today than it has been since the 1920s," Schultz says, "with multiple statistics and studies demonstrating that the gap between rich and poor has exploded in the last three decades. Occupy Wall Street has highlighted this battle of wealth versus the people, portending a possibility that this election is about whether American democracy is for real or for sale."

Those scenarios — America's place in the world, shifting demographics and the battle between dollars and democracy — are setting up two contrasting political narratives, Schultz says. One narrative leads toward a nostalgic past; the other toward a fast-changing future. "This election," Schultz says, "is about which of the narratives will win."

Vanderbilt's Geer frames it another way. The 2012 election, he says, "strikes me as very much a product of long-standing forces. In this case: the condition of the economy and which candidate we most trust to lead America for the next four years."

Monday, June 4, 2012

Progressive Politics in the Age of Conservatism

Face it–progressive politics in America looks dead.

No, not socialism, that’s been dead almost from the beginning in the United States. Although during the height of the recent recession a Rasmussen poll found only 53% of the population lacked preferred capitalism to socialism. Yet there generally seems little support for workplace democracy and significant public ownership of state owned enterprises that are profitable and run for the benefit of the public. America’s version of government ownership is to take over ailing and unprofitable enterprises such as the auto industry or banks, pump billions if not trillions of public dollars into them, and then return them to private control just as they become profitable again. This is not socialism–it is corporate welfare.

The progressive politics that looks dead is good old-fashioned economic liberalism. This is not Bill Clinton liberalism that supported NAFTA and welfare reform and which Mitt Romney recently warmly embraced as the kind of Democratic Party politics he liked. Instead, the progressive politics that appears dead is that of Lyndon Johnson, John Kennedy, Franklin Roosevelt, and even Teddy Roosevelt. It is about the Great Society and the New Deal. It is about redistributive politics that sought to raise those at the economic bottom, narrow the gap between the rich and poor, and wrestle control of political power in the United States from corporations and plutocrats. It was a commitment to believing that the government had an important role in make sure we had a nation that was not one-third ill-fed, ill-clothed, and ill-housed, that kids should not go off to school hungry, and that corporations should not have the same rights as people.

But if Bill Clinton’s presidency did not kill off this type of progressive politics, surely Barack Obama has.  If Obama did not do it directly, he did so indirectly with the 2010 backlash against him that has done more to kill progressive politics than can be imagined.

Look at where American politics is today. A 2009 Gallup poll pegged 40% of the population as describing themselves as conservative, nearly twice the 21% labeling themselves as liberal.  In 2010 the numbers were 42%-20% conservative and liberal, and one can only speculate what they are today after the November, 2010 electoral rout of Obama and the Democrats. Since then Republicans have  taken effective control both in Washington, St. Paul, and across the country. Obama is practically immobilized by the TEA Party, Mark Dayton gets nothing his first year in office then supports corporate welfare for the billionaire Vikings owner.  Across the country in places such as Wisconsin Governor Walker stomps on union rights and may well be the first governor in history to survive a recall election. Yes unions did win some victories in Indiana and elsewhere, but they are on the defense.

Progressives are on the run everywhere. It is not just on matters of public policy such as with taxes, government regulation, and health care, but also in the rhetorical battle for the hearts and minds of the people. You can’t even call yourself a liberal anymore without being red baited. Thus the reason for switching to the term progressive. Conservatives have successfully labeled as left or socialist anyone who does not agree with them. During the Republican primaries Bachmann called fellow party members “frugal socialists.”

Watch cable news (not just FOX) or surf the web, crack pop conservative ideas dominate. Ron Paul pleads for a return to the gold standard, Michelle Bachmann blames Obamacare and Wall street reforms for the crash in the economy (even though neither have really taken effect for the most part). The recession of 2008 is the fault of the government and not greedy bankers and speculators, Keynesian economics to stimulate the economy is wasteful, consumer protection is bad for business, and the Supreme Court’s Citizens United expanding corporate free speech rights to dump unlimited money into the buying of elections is good.  Oh, and vaccines cause mental retardation and global warming does not exist. Main stream media seems afraid to put real progressives on the air and what passes as progressive on MSNBC is watered-down and defensive.

How did it happen?  There is no one cause but there are several reasons. First, what Obama and progressives have failed to do is craft a narrative supporting their views. Tea Party activists and conservatives have the narrative of individual freedom–markets are good and government is bad. Government suppresses personal freedom and markets promote it.  Never mind that corporations tell more people what to do with more of their life at work than the government ever does or could. That’s corporate freedom. Conservatives have made free choice their buzz word and equality a dirty one.  Progressives have no overarching rhetoric and narrative to support their world view. “Hope” and “change” may be great election slogans but they do nothing for governance. The closest one has to a progressive narrative out there is from Occupy Wall Street about the “other 99%.” Yet OWS is so fragmented it lacks a central policy message upon which one could govern. Progressives need a winning narrative that appeals to Americans and which dictates a governing philosophy.

Second, Obama was not really a liberal but his rhetoric looked it. He ran promising change. The reason why so many are disappointed in him is not that he was too far left but that instead he failed to deliver on his lofty promises. At inauguration Obama had a window to change America but he flinched. Carpe diem was not his motto.

Third, progressives lack guts to fight. Look at Obama last year during the debt deal stand off or Dayton and the government shutdown. Both finally caved in. Why? Democrats (and one should not confuse the party with progressivism) believe that they are the caretakers for government. They believe that they need to be responsible and not run the risk of shutting the government down for fear of how it would ruin the economy or hurt people. But conservatives know this and take advantage of the Democrats willingness to blink. But by blinking the Democrats are screwing over poor people and the economy slowly by giving ground one inch at a time and they seem unable to recapture it. Until Democrats fight and show conservatives they are willing to shut the government down and hold conservatives responsible they will never win. Missing is the courage of their convictions.

Fourth, conservatives understand how to make structural reforms and policy changes that both benefit their supporters and enhance their power. Tax cuts and cuts in regulation are simple ways to benefit supporters, but there is more. Voter ID disempowers their opposition, attacking union rights undercuts labor support for Democrats and opposition to business in the workplace, and gutting regulations on money in politics strengthens corporations and rich individuals. Obama’s biggest mistake in his first two years was his failure to act accordingly. Instead of health care reform he should have used his sizable majorities in Congress to support the Employee Free Choice Act to strengthen unions, adopt national legislation banning voter ID and permitting day of election registration in federal elections, and adopting real Wall Street and bank reforms that would have limited their power, including reauthorizing Glass-Steagall.

Moreover, Obama should have first done something to help homeowners and workers get their houses and jobs back. Reward supporters up front and they are with you for life. Furthermore, when the Supreme Court issued Citizens United Obama could have issued an executive order barring corporations from bidding on federal contracts if they make political expenditures.   Or he could have ordered the Securities and Exchange Commission to issue rules requiring shareholder assent before companies make political expenditures. Finally, to break the back of conservative news he could have embraced a reinstitution of the Fairness Doctrine to require the media to offer diverse view points. But he did not do any of this? Why?

This is the last problem. Democrats now feed at the same trough as Republicans. Obama took more money in 2008 from Wall Street than any other presidential candidate in history. Democrats are increasingly as dependent on big corporate and individual donors as Republicans and just as bought and paid for.

Progressive politics is dead so long as it is married to the current Democrat Party. Progressives need their own Tea Party revolution on the left–one that engineers a new rhetoric and takeover of the party. One that is not willing to play it safe and worry that if a few Democrats lose  that means the Republicans win. It means a willingness to fight for what you believe in. This is what progressive politics needs to be in the age of conservatism. Dead men don’t fight or win.