Thursday, June 28, 2012

The Dawn of a New Age of Government?

Senator Edward Kennedy called healthcare reform the "the great unfinished business of our society." Today it is finished. Every branch of the US government has had its say. The Supreme Court decision also marks the end of the Rehnquist era. No longer can we reliably predict that it would always send powers back to the states. Indeed, it said "No" to 26 states that had challenged the Affordable Healthcare Act today.

This is also, incontrovertibly, a victory for Obama. Today, John Boehner called the Act a "harmful" law. Mitch McConnell called it "terrible." Romney called it "bad." But none of them can call it "unconstitutional" anymore, taking the wind out of the Tea Party's sails.

Sure, this is now a rallying and fund-raising issue for Romney, but it's always been an issue. The conservative base now knows that the only way to repeal the Affordable Healthcare Act is to take out Obama. The difference between a conservative and an independent voter, however, is that only the former looks back. Swing voters at the presidential lever will appreciate a conservative Chief Justice's endorsement of the Affordable Healthcare Act, and won't care anymore after this. This is now a done deal.  It re-establishes Obama as a leader, because he joins Lincoln and FDR as a winner in tumultous politics.

If Obama follows up and wins the election this year, we may be in for a resurgent Age of Government after three decades of retrenchment. FDR caused the nine (justices) to switch in time in 1937. Obama caused only one, but then again he tried to and pushed through a law that FDR knew he couldn't do and the one was a Chief Justice appointed by his Republican predecessor, no less.

To be sure, the Court did reject the administration's argument that the Interstate Commerce clause legitimated the individual mandate. Chief Justice Roberts, however, argued that the Supreme Court's job is to mine the Constitution for arguments - even when the administration failed to find or emphasize them - to sustain acts passed by  Congress. In ruling that the mandate is constitutional under the taxing and spending powers of the Congress, he exercised, in his mind, the duty of judicial restraint and deference to the elected branches. In this, he acted like the Justice George W. Bush thought he had nominated to the bench.

However, the constitutional reasoning Roberts proffered -- that the individual mandate is a tax (and the Attorney General explicitly said it was not) -- is way beyond what Bush or any conservative would have liked. People aren't quite coming to grips with this fact yet. The congressional power to tax is a massive power and by failing or refusing to make a clear and distinct separation between what is a tax and what is penalty (Roberts gave three very weak reasons), this decision delivered a huge victory for "big government" liberals, because almost anything can henceforth be classified a tax and therefore permissible under the taxing and spending clause of the Constitution.

The Anti-Federalists of 1787/88 were right: where the purse lies, so does sovereignty. Publius, or at least Hamilton, knew it too, but he kept mum about it, because his goal had always been a "consolidation" of federal authority.  Today, Justice Roberts unknowingly but effectively extinguished the (already specious) distinction between a tax and a penalty. When Republicans now turn their argument to calling "Obamacare" "Obamatax," they are fighting on much weaker ground than before, because the taxing and spending powers of Congress are massive; yet this power was among the principal reasons for why the Constitution was written in the first place. What Roberts did, in effect, was to force the conservatives back to their original ground and show their true colors: they are, at heart, Anti-Federalists who are no more appreciative of a powerful federal government in 1787 than in 2012.

Liberals shouldn't get too smug yet though. The individual mandate is not the panacea of our still very flawed health-care system. 30 million or so people are now going to be in the system in 2014, and they will move from already crowded emergency rooms to primary care physician offices. This is the start of healthcare reform, not the end. But it is also the start of an era where government is no longer seen as the problem. It may yet prove to be the solution again.

Sunday, June 10, 2012

Is Team Obama Cracking under Pressure?

How quickly Fortunes change. For the first time this election season, the Republicans now look poised not only to match Obama's fundraising ability, but to beat him at it. There is certainly no way that Obama is going to enjoy the 3 to 1 advantage he had over McCain four years ago. All this is also to say, then, that for the first time this year, Mitt Romney could be the frontrunner in the presidential race.

The worst month for the Dow Jones this year has also been the worst for Obama. Republicans are perking up because with the economy taking a turn for the worse, Obama's electoral college advantage appears to be weakening. Having won an important victory in the Scott Walker recall election in Wisconsin, the GOP now believes that it has a shot at bleeding Democratic resources there, and possibly even in Michigan and Pennsylvania. If Obama is forced to spend valuable time and resources in these three weakly Democratic-leaning states, he will have less time to spend in Ohio, Virginia, and Colorado.

Just as Obama looks like he is defending the electoral fort, he is also in defense mode on the ideas. This is the fundamental difference between '08 and '12. Obama had it easier in 2008, when he was up against a highly unpopular president waging a highly unpopular war. Not so in 2012, when this not so popular president, defending an even more unpopular health-care law, is up against the same atavistic contempt for incumbents that he had used to upend McCain in '08. This is why Obama surrogates keep going on about the mess they inherited. The longer they can claim Obama to be the Washington outsider besieged by the legacy of Bush, the less he can be stained by his own incumbency.

Yet the more he gripes about the past, the more Obama looks like a rookie overwhelmed by the complexities of governance, and the more Mitt Romney looks like the man for the job. Obama's campaign slogan, "Forward," subtly implies that the Republicans are "backwards." But the president should be mindful that he can hardly appear to be leaning forward if his eyes are continually cast backwards to the previous administration for comparison. That strategy worked once in 2008, but the past cannot be prologue twice.

To top it off, the president made his "the private sector is doing fine" comment.  You would expect this from Joe Biden, not Barack Obama. The president is not out of touch, but out of it. Even the best campaigners crack when reality bites. Hit hard by a slew of bad news, Obama is running to his base, rhetorically and literally, for comfort and coddling. But neither partisan sound-bites nor standing ovations by the LGBT community are going to get him reelected.

The dynamics of 2012 are nothing like that of 2008. Americans are done with hope; they want jobs. They are done with bickering about wars, and are more angry about health-care laws. Obama is no longer the new kid on the block, and he is not going to be the best funded anymore. Inspiring platitudes will not work this year.  As the going gets tough, Team Obama will have to think outside of the '08 box or face ignominious defeat.