Presidential Politics: It's the Swing States Stupid!

The presidential race is over in 36 states and it will be decided by swing voters in 14 swing states. Look to see how I analyze the race and discuss Obama's chances.

Go to my web page  and on the right side click on  my Politics in Minnesota article entitled Presidential Politics: It's the Swing States Stupid!

Also today: Strip searches for any arrest. Courtesy of Supreme Court that gave us unlimited corporate political spending and which will undo the Obamacare and affirmative action. Conservative judicial activism here we go!

The Supreme Court and Health Care: What's Next?

Barring a miracle, the individual mandate in the Obama health care act is dead. But even another possibility exists that the entire law may be voided by the Supreme Court. This should have never gotten to this point.  But what if the act is struck, what then?

The Patient Protection and Affordability Health Care Act (Obamacare or the Obama health care act “OHCA”) was always a flawed act to start. Yes it ensured an additional 36 million individuals and that was great. Yet it excluded universal coverage still leaving several million without health insurance.  Yes the law also requires insurers to issue policies to those with preexisting illnesses and to allow parents to keep their children until age 25 on their policies, but there was little in the law to deal with the cost issues. The government would still be barred from negotiating with drug companies for better prices, private insurance companies would face little market competition, and the vast administrative costs that the current system produces would not be addressed. All of these problems rendered OHCA a flawed piece of legislation.

Yet flaws like these make it bad legislation but not unconstitutional. The reason the law is before the Court is because it is a Republican idea.  The individual mandate is originally a Republican idea offered in place of the single-payer option.  Obama embraced it and the Democrats pushed it through Congress with barely a Republican vote.  The latter turned on the individual mandate after trumpeting  it, and now they are calling their idea unconstitutional. How ironic. Even more ironic is the fact when the Supreme Court heard the case last week one of the Justices even suggested that the way to get around the possible constitutional problems was to adopt a single-payer system.

Following the hearings last week was amazing. The OHCA is a lesson in sloppiness. The Solicitor General who argued the case before the Supreme Court was weak. Going into orals anyone who knew anything knew that the central issue and most important question to answer for the Court was to indicate what are the limits of the Commerce clause. Specifically, since the authority for the individual mandate rested on whether health care came within the realm of interstate commerce that Congress could regulate, the government needed to show that it had the power to act. But in demonstrating that, one knew Justice Kennedy–the swing vote–for example, would want to know if there are any limits to the Commerce clause if the individual mandate were upheld.

Solicitor General Verrilli failed to answer this question. He had an easy answer. He could have pointed to a 1992 decision United States v. Lopez where the Court struck down a provision of the Gun-Free School Zones Act of 1990 as exceeding federal commerce powers, and to a 2000 Court decision in United States v. Morrison where it struck down a  provision of the Violence Against Women Act of 1994 as exceeding federal commerce powers. He could have said these two cases established the outer boundaries of the Commerce clause, articulated the reasoning in them, and he would have done his job. Instead, he gave an opening to Justice Scalia to ask stupid questions about the federal government mandating people to buy broccoli under the Commerce clause. We should have never gotten there.

Additionally, the hearing on severability should have never taken place. The severability issue is over whether if the individual mandate is struck the entire law is dead.  A general piece of boilerplate attached to bills is a severability clause stating that if the courts declare any part of the law unconstitutional the section voided would be severed from the rest of the law, preserving it.  One would have thought in a 2,000 page law this boiler plate would have been in it, but it was not.  Sloppy.  Thus the real possibility of a Court voiding the entire law.

But the Court itself has also been sloppy here. Clarence Thomas should have recused himself from the case because of his wife’s political activities in opposition to the law. Similarly, a case can be made that Justice Kagan too should have recused herself because of possible involvement with the law at the Justice Department. But this is also a Roberts Court that is perhaps the most conservative Supreme Court since the 1930s, and its excesses in this and other recent ones such as Citizens United strip away any veneer that conservatives do not engage in judicial activism.

But what is the law is voided, where are we? At present the United States spends 18% of its GDP on health care and with Baby Boomers aging, it is projected to increase to perhaps 20%. With the United States current GDP at $15 trillion in 2011, total health care spending is $2.25 trillion. America has the most costly health care system in the world, both in real dollars and in GDP percentage. The Netherlands is second in terms of percentage of the GDP spent on health at 12%. The US spends an average of $8,000 per person on health care, other developed countries about $2,000. They also achieve what we do not–universal coverage–and often have higher life expectancies, lower infant mortality rates, and generally better health care outcomes than we do. Out system is expensive and it does not deliver the goods, unless you are well insured.

But defenders of the American health care system love to point to freedom. They say our current system maximizes choice. They love to point to stories about people in Canada flocking to the US for coverage or for long waits in line for elective surgeries such as nose or boob jobs. Yes this may be true and perhaps other problems exist, but how much choice do we really have in the US? For those without healthcare, how much choice is there? For those in HMOs how much choice is there? The reality is there is little health care choice for millions in the USA.

Reforming health care is critical to the future of the US economy. Image if the US spent only 12% and not 18% of its GDP on health care. That would save the country $750 billion per year? What could we do with that money? Pay down the debt, cut taxes, invest in roads and schools, or more. Solving the health care crisis is still going to be with us after the Supreme Court rules, Republicans take over, or Obama remains in office.

Obamacare on Trial: The Supreme Court and Health Care Reform

Note: Today's blog draws upon a discussion of health care reform and the Commerce Clause found in my textbook Constitutional Law in Contemporary America, published by Oxford University Press.

[The Congress shall have power] “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Constitution Article I, Section 8, Clause 3.”

Obamacare goes on trial beginning Monday. The fate of this law now rests with the Supreme Court and its decision on its constitutionality will hinge on how it interprets the Commerce clause and a Supreme Court case decided in 1942.

In 2010 President Barack Obama signed into law the Patient Protection and Affordable Care Act of 2009.  The law, known to its critics as “Obamacare,” was a significant effort to regulate health care insurance in the United States in order to provide coverage for more individuals. Among the major provisions of the law was a mandate that required individuals who otherwise did not have health care coverage (such as through their employers) to purchase the coverage or face a fine. The bill cleared Congress along partisan lines, with Democrats supporting it and Republicans opposing it. Tea party activists, especially disliked the law, contending that it also violated the Tenth Amendment and states’ rights.

Many contended that this personal individual mandate was unconstitutional. A range of claims were offered to support this assertion, but the main argument was that Congress lacked the authority under the Commerce clause to mandate individuals purchase health care insurance.  Shortly after the passage and signing into law, several legal challenges to the Patient Protection and Affordable Care Act were brought in court. Four cases reached decisions on the merits regarding the constitutionality of the act under the Commerce clause.  Two district court decisions, Liberty University, Inc. v. Geithner, and Thomas More Law Center v. Obama upheld the individual mandate under the Commerce clause while two other cases Commonwealth ex rel. Cuccinelli v. Sebelius, and Florida v. Health and Human Services, found it exceeded Congress’ power under the Commerce clause. Federal courts of appeal also split over the constitutionality of the individual mandate.

The heart of the constitutional issue is actually quite simple. First, is the decision not to purchase health care insurance an act that affects interstate commerce? If it does, then Congress does in fact have the authority to mandate its purchase.

The Commerce clause is perhaps the most potent clause in the Constitution depending federal power.  Its insertion into the original Constitution of 1787 was made necessary because the then existing Articles of Federal government (the first constitution for the United States) proved ineffective in preventing individual states from discriminating against one another. States imposed tariffs and special taxes on imports, and the national government seemed ineffective in building a national market and regulating trade.  For some the Commerce clause is the heart of the Constitution.

Some of the Supreme Court’s most important and major constitutional decisions defining the scope of congressional power have been rooted in interpretations of the commerce clause. Cases such as Gibbons v. Ogden (1824) defined congressional commerce power as almost limitless, but other decisions have drawn its power and scope more narrowly. In the post Civil War Nineteenth century Supreme Court decisions struck down numerous federal laws, ruling that efforts to regulate certain business practices either did not constitute commerce or that they exceeded the scope of the power Congress could regulate. For example, in  Hammer v. Dagenhart (1918) the Supreme Court ruled that Congress lacked authority under the Commerce clause to regulate child labor.

The highwater mark of the Supreme Court invalidating congressional legislation as exceeding  its Commerce clause authority occurred during the first New Deal in the 1930s.  In decisions such as Schechter Poultry Corporation v. United States (1935), United States v. Butler (1936), and Carter v. Carter Coal Co.  (1936) the Court ruled that many of the original pieces of New Deal legislation pushed by FDR and passed by Congress exceeded the constitutional limits imposed by the Commerce clause.

However, then it all changed.  In 1937 FDR threatened the Court with a plan to add more justices. As a result of that threat, the retirement of some justices, and his replaced with new ones, the Supreme Court changed its mind in a new round of New Deal cases, upholding them as not inconsistent with the Commerce clause. Among the most notable decisions, Wickard v. Filburn (1942).

In Wickard, at issue was whether a small dairy farmer who planted wheat for personal use could be fined under the Agricultural Assessment Act (AAA) because his production wheat violated the quota he was allotted. Wickard had argued that his growing of wheat for personal use had no direct impact on interstate commerce and therefore Congress had exceeded its constitutional authority in the creation  of the AAA and in the imposition of the quota and fine. The Supreme Court rejected Wickard’s arguments, ruling that statutory penalties may be applied to those who raise more than the assigned quotas of acres of wheat even though the wheat is to be consumed on the farm and not moved in interstate commerce. The Court held that this exerts a substantial economic effect on interstate commerce since “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market.” For the Court, decisions not to purchase goods can impact interstate commerce–such as the decision not to purchase wheat and grow it instead for personal consumption.

The fate of Obamacare rests with what Wickard means as a precedent. Does the decision not to purchase health care insurance burden or affect interstate commerce? This is the question before the Supreme Court starting Monday. Do not look to the Court striking down the entire law–at issue is only a portion of it (the individual mandate) and not the entire act.

Since decided in 1942, Wickard’s expansive reading of the Commerce clause has been used to justify extensive regulation and legislation, including promoting civil rights laws, anti-trust, and protection of the food supply. The Court has agreed with clams that refusing to serve customers, for example, affects interstate commerce, thereby justifying civil rights or anti-discrimination laws.

There have been only two decisions since Wickard that have invalidated federal legislation under the Commerce clause. In 1992 the Court in United States v. Lopez struck down a provision of the Gun-Free School Zones Act of 1990 as exceeding federal commerce powers. And in 2000 the Court in United States v. Morrison strikes down a  provision of the Violence Against Women Act of 1994 as exceeding federal commerce powers. Both of these decisions were decided under the Rehnquist Court when both Chief Justice William Rehnquist and Justice Sandra Day O’Connor pushed an agenda limiting federal power and championing states rights. Outside of these two cases, no other federal law has been invalidated on Commerce clause grounds since 1937–75years ago.

But the Rehnquist Court is not the Roberts court. The current court that replaced Rehnquist with Roberts and O’Connor with Alito is less interested in federalism issues (limits on the federal government) than its predecessor. One can easily see a scenario where this Court upholds Obamacare, especially if it follows Wickard. Not purchasing health insurance and thereby shifting costs of medical care to others (for the uninsured) is just as much an impact on interstate commerce as the decision of one farmer not to buy wheat but purchase it.

Whatever the Court does do, its impact politically will be significant. Were Obama and the federal government to win it might rally the conservatives come November, whereas an Obama loss might mobilize Democrats and liberals. Thus, losing in Court might be a political blessing for November.

The Economic and Political Truth about Right-to-Work Legislation

Today's blog also appeared as a Community Voice piece today in Minnpost. 

The debate over the merits of constitutional amendment making Minnesota a right-to-work (RTW) state is heating up. Proponents of RTW contend that it will make Minnesota more business competitive and produce jobs. Opponents respond that it will lower family incomes. Because the debate has taken on partisan implications with Republicans and chamber of commerce constituencies favoring RTW and Democrats and unions opposing it is difficult to separate fact from fiction. Is RTW about economics, or is politics, directed at busting unions which have historically supported Republican candidates and causes? The simple answer is that it is about both. RTW does not produce the economic benefits that its advocates claim, and instead the real justification has to rest upon its political aims.

What do we know about the economic impact of RTW? Legislative debates on the issue are generally badly informed or woefully devoid of fact-based impartial evidence. Often studies are cited by organizations with clear political agendas. Groups such as the Cato Institute, the Mackinac Center, and the Chamber of Commerce argue that RTW laws produce lower unemployment rates for states. Conversely, the generally liberal Electronic Policy Institute finds the opposite, and also asserts that RTW adversely impacts unionization and family incomes. More nuanced and independent research yields a better picture.

Right-to-Work Laws Fail to Increase Employment

In Right-to-Work Laws and Economic Development in Oklahoma Lawrence Mishel finds no evidence that RTW laws increase employment. Conversely he finds evidence that they decrease wages. Lonnie Stevans of Hofstra University in a paper entitled "The Effect of Endogenous Right‑to-Work Laws on Business and Economic Conditions in the United States:  A Multivariate Approach" reached the same conclusion on both points, while also noting that the rate of self-employment was higher and bankruptcies lower in RTW states.

Conversely do RTW laws hurt unionization? H. Craig Petersen and Keith Lumsden in "The Effect of Right‑to‑Work Laws on Unionization in the United States" find little evidence for this claim. States, for example, such as Nevada, which is RTW, have one of the higher unionization rates in the country at 16.6% in 2011. The same conclusion is reached in the article "The Effects of Right-to-Work Laws: a Review of the Literature" by William J. Moore and Robert J. Newman.

But in addition to the above research, one can also do the math to look at the impact of RTW.  There are 22 states with RTW and 29 states plus the District of Columbia without.  The Bureau of Labor Statistics (BLS) provides statistics on unionization rates, unemployment, and median family income.  What do we learn from crunching some numbers?

Fox's Bill O'Reilly asserts that RTW states have a much lower level of unemployment than the union states do. Using BLS December, 2010 data, the unemployment rate for RTW states was 9.2%, for non RTW it was 9.7%. Now look at the December 2011, BLS numbers. Supporters of the amendment can point to the fact that seven of the top ten states with the lowest unemployment rates are RTW. Conversely, five of the ten states with the highest unemployment rates are RTW. Second, the average unemployment rate for RTW states in December, 2011 was 7.6%, compared to 7.9%. Using the most recent January 2012 numbers, the unemployment rate for RTW states was 7.3%, and 7.8% for non-RTW states. Overall, not much differences here in terms of economic performance.

Another way to examine the issue is by doing statistical correlation analysis. Statistically, if being RTW decreases unemployment the correction with it is 1. If RTW increases unemployment the relationship is -1, and if the laws have no impact the relationship is 0.Is there any statistical correlation between a state being RTW and unemployment rates? The correlation is 0.09 suggests no relationship. Essentially, O'Reilly is wrong in his statement.

But the classification of states as O'Reilly does into those which are RTW versus union is too crude. Many RTW states do have unionization levels comparable to those lacking such legislation. Is there any statistical correlation between the percentage of the workforce in a state that is unionized and unemployment rates? With a correlation of 0.1 the connection is almost non-existent.

Right-to-Work Laws Depress Family Incomes
But now take a look at the differences from another angle. There is a significant difference in median family incomes in states that are RTW versus those that are not. Using a three years average median family income for 2009 to 2009, RTW states have a median family income of $46,919, non RTW it is $53,418 a difference of $6,499 or 13.9% per year. Testing for the impact of RTW on median family incomes, the relationship is -0.4. This means there is statistical evidence that RTW is associated with lower incomes BRTW depresses wages. Finally, the percentage of the state's workforce unionized demonstrates a positive 0.47 correlation with incomes unions increase income.

RTW laws are only one variable affecting the economic climate of a state. But is fair to say that these laws have no real impact on unemployment and instead states with them have lower median incomes. Similarly, unionization does not depress employment and instead increases wages. Presumably more wages for workers means more consumption and a better economy in the state.

So if economics is not really the issue (unless one wants lowers wages), then what is it is about? It is about politics. Generally advocates for RTW are Republicans who see labor unions as primary supporters of Democrats. RTW laws, along with voter identification laws are tools aimed at weakening the political support for the Democratic Party by making it more difficult for some to vote, organize, and amass political resources. Simply put, it is an effort to rig the rules of politics to favor one side by demobilizing the other.

Republican Good News, Bad News after Alabama and Mississippi

Good News for Santorum: He wins Alabama and Mississippi.
Bad News for Santorum: He loses Hawaii and Guam.

Good News for Romney: He wins Hawaii and Guam.
Bad News for Romney: A Republican will never win Hawaii in the presidential race and Guam doesn’t matter.

Good News for Gingrich: He came in second in Mississippi and Alabama.
Bad News for Gingrich: He came in second in Mississippi and Alabama after stating last week these were must wins for him.

Good news for Romney: No Democrat can win Mississippi or Alabama.
Bad News for Romney: Nor can he.

Good News for Santorum: He won two states and slowed down Romney’s momentum.
Bad News for Santorum: He has one-half the delegates that Romney.

Good News for Romney: He won the most delegates on Tuesday.
Bad News for Romney: It’s hard to claim frontrunner status when you come in third in two states.

Good News for Santorum: Conservatives win 70% of the vote in Alabama and Mississippi.
Bad News for Santorum: As long as Gingrich is in the race, they split the conservative vote.

Good News for Romney: Gingrich is still in the race, splitting up conservative vote.
Bad News for Romney: He cannot seal the deal and close the nomination.

Good News for Gingrich: He is not dead yet.
Bad News for Gingrich: He cannot identify another state he can win.

Good News for Romney: Illinois is the next state.
Bad News for Romney: He may win another state that no Republican will win in November (Obama’s home state).

“It’s the gas prices stupid.” Oil and the Fate of the Obama Presidency

“It’s the gas prices stupid.” Perhaps this is the new mantra that David Plouffe should have posted in the Obama re-election headquarters, updating the famous “It’s the economy stupid” that James Carville coined for Bill Clinton’s presidential campaign in 1992. Yet unlike in 1992 when that saying and strategy slew a sitting incumbent, Obama should worry that the tables could be turned on him and gas prices could doom his bid for a second term.

In a recent Washington Post poll rising gas prices are sinking Barack Obama.  According to the poll, his disapproval rating is 50% with disapproval of his handling gas prices at 65%. Overall disapproval on the handling of the economy is at 59%. All of these numbers are increases in the last few weeks after economic good news had steadily helped him politically.

Confirming the salience of gas prices were exit polls in Ohio last week dramatically demonstrating the worry and concern in that swing state among many, including the crucial swing voters.

But there is a particular and vexing problem for Obama with rising gas prices that suggests that he has few options to insulate himself.

Think about reasons for rising gas prices. They include speculation over Iran and whether Israel will bomb Tehran’s potential atomic capabilities. There is also the decision by Iran not to sell oil to some countries in response to an embargo against it. There is also rising demand for oil across the world as the economy improves, and there are also some shutdowns in refineries for a variety of reasons that remain dubious and perhaps monopolistic.

Obama wants to pressure Iran regarding its nuclear capabilities. The more it does that the more that invites oil price speculation. Second, Israel increasingly fears a nuclear Iran and is rumored to want to bomb its facilities. If it does that then expect oil prices to skyrocket. Last week when Prime Minister Netanyahu visited the United States he appealed to Obama to support them in a possible bombing of Iran. If Obama does that, again, oil goes up. If the president does not support Israel then he runs the risk of alienating Jewish voters, and in swing states such as Florida that could prove costly. 

Obama’s trilemma: How to contain Iran and support Israel, depress oil gas increases (which can also hurt the economy), and promote his reelection? This is not an easy feat to accomplish.

What tools does he have to address these problems? Not many. He could again open the spigot to the Strategic Petroleum Reserve similar to what he did in June 2011. However, that decision was coordinated with similar actions with allies around the world and it is not clear they will follow suit this time. Additionally the amount oil released then had minimal impact on oil prices and the same will be true when (not if, but when) Obama opens it again this year. The only issue is when he will do it. Open to early it has no lasting impact, open too late and it may have no political or economic efficacy.

Obama has to do something and he cannot look hapless. This is in part what doomed Jimmy Carter in 1980 when he did not know what to do about the Iranian Hostage crisis. Somehow Obama has to divert America’s attention away from gas prices, or convince them that the GOP have no better ideas regarding what to do (and the latter is true). However, every step along the way the Republicans will be reminding voters that “It’s the gas prices stupid.”

Obama needs advice and help. In 1992 space aliens advised Clinton on what to do about the economy, at least according to the Weekly World News. It seemed to help him then. Maybe that alien can provide Obama with some advice in 2012, instead of offering what appears to be out of this world recommendations to Gingrich and others that they can get gas to $2.50 per gallon immediately.

Do the Math: The Increasing Probability of a Brokered Republican National Convention

After Super Tuesday Mitt Romney told Santorum that the delegate numbers were against him and that it was unlikely that the latter could win enough delegates to reach the 1144 magic number to clinch the nomination. Truth be told, it looks like none of the GOP candidates except Romney can reach this number, and even his chances are questionable. All this  raises the increasing probabilities that there will be no candidate with enough delegates after the primaries are done in June to clinch the nomination.  Brokered convention here we come!

Let’s do some math.

There are a total of 2,286 delegates to the August 27-30, 2012 Republican National Convention (RNC) in Tampa, Florida.  For a candidate to win the nomination he must secure 1144 delegates.

Through super Tuesday here is the delegate count:

Romney          421
Santorum        181
Gingrich          107
Paul                47
Huntsmann      02

So far a total of 758 delegates have actually been awarded.  This is 33.1% of the total delegates. Another 129 delegates have been selected in caucus states such as Maine and Minnesota but have not yet been awarded to anyone. This means there are 1399 delegates or 61.2% are yet to be awarded.

Of the 129 caucus delegates not officially awarded, potentially Santorum and Paul have done well at winning many of the delegates in these caucus states, suggesting that their numbers looking better than they do.  In fact even Romney may have more delegates than his official number indicates if his portion of the 129 is considered.  But for purposes here, ignore these 129 delegates since they probably will not be awarded until after the primary season is over and they generally are cast for the winner at the national convention, assuming there is one.  If no candidate has already reached the 1,144 number, these 129 delegates will become really important.

Of those delegates actually awarded (758) Romney has won 55.5%, Santorum has won 23.8%, Gingrich 14%, and Paul 6.2%.

For Romney to win the nomination, he needs to win 723 additional delegates out of the 1399 remaining. This means he has to win 51.6% of the remaining delegates.

For Santorum to win the nomination, he needs to win 963 additional delegates our of the 1399 remaining. This means he has to win 68.8% of the remaining delegates.

For Gingrich to win the nomination, he needs to win 1037 additional delegates our of the 1399 remaining. This means he has to win 74.1% of the remaining delegates.

For Paul to win the nomination, he needs to win 1097 additional delegates our of the 1399 remaining. This means he has to win 78.4% of the remaining delegates.

The math suggests that Romney merely need to perform in the future at slightly below or about the same level of delegate collection to win the nomination. If this were occur, he would have enough delegates around June 5, when California (172), Montana (26), New Jersey (50), New Mexico (23), and South Dakota (28) hold their primaries. Assuming no major changes in political fortunes, it will  be three more months at a minimum for the Republican nomination to conclude with a nominee.

But Romney’s math is fuzzy. March 10 brings Kansas, March 13 Alabama and Mississippi, and then Missouri has a March 17 contest. There is a total of 142 delegates here.  Romney will not do well here, winning perhaps 40% of the delegates (57). There are other southern states–Texas, Louisiana,  Arkansas, and Kentucky, with a total of 272 delegates where he may also substantially underperform  and perhaps win only 40% of the delegates (109). If this were the case, Romney would have 587 delegates, and would then have to win 557 out of the other 1,127 remaining delegates (49.4%).  This is not impossible for Romney, but it suggests that he has to continue to perform well in these other states if he wants to clinch the nomination by the end of the primary season in June.

If Romney were to perform worse than these projections then he chances of securing the necessary delegates to clinch the nomination goes down. For example, if he does worse than expected in the next two weeks and his momentum is slowed then it may make it harder for him to clinch in advance. Better than expected performances in the next couple of weeks can increase the chances of securing the necessary delegates.

Bottom line: The math is against Santorum at this time and Romney merely needs to continue at his current pace to clinch the nomination in June. Romney is definitely in the driver’s seat but the math suggests a precarious seat.