Evaluating SCOTUS and the ACA Decision

It has now been a little more than a week since the Supreme Court announced its decision upholding the affordable care act (formally NFIB v. Sebelius) and the backlash is only beginning to calm. I wanted to wait a bit before writing about the decision and take some time to digest the numerous reactions from liberals and conservatives, Democrats and Republicans, and legal scholars and politicians.

In my previous post, written the day before the decision, I predicted the court would uphold the act in its entirety with Chief Justice John Roberts writing the majority opinion and joined by Justices Kennedy, Ginsburg, Breyer, Kagan and Sotomayor. A few thoughts on that prediction. While I was correct and the ACA was upheld with Roberts joining the liberal members of the court, I was dead wrong on Justice Kennedy. Kennedy sided with Scalia, Thomas and Alito in a dissent signed by all four but with no one justice taking authorship (the court politics of this are interesting and I will discuss them in a separate post). As a result the decision was 5-4, not 6-3 as I predicted. Roberts upheld the mandate section of the ACA under the taxing power of the federal government and not the Commerce Clause as articulated in the legislation. Nobody I have read got that right. Additionally, the court chose to limit the expansion of Medicaid proscribed in the ACA to states that choose to accept such an expansion, ruling by 7-2 with Kagan and Breyer joining Roberts, Scalia, Kennedy, Alito and Thomas, that the Medicaid expansion as written is coercive and therefore unconstitutional. I did not anticipate this and certainly did not see Kagan and Breyer joining the five conservatives in the Medicaid section of the opinion (more on that later as well). Finally, I suggested that Justice Scalia's odd and clearly partisan behavior while reading the decision on Arizona's S.B. 1070 law might be an indication that he was upset about the ACA decision coming later that week. I believe that was, in part, the reason for Scalia's outburst.

Reaction to the court's decision was immediate and intense on all sides of the political spectrum. From Republicans came anger and outrage that the Chief Justice, appointed by George W. Bush, had not voted as they saw fit. Some of the criticism was coldly rational, disagreeing with Roberts' opinion that the tax power allowed the mandate and the law to stand. But much of it was a more visceral, angry kind of reaction, filled with name calling and cries of traitor. Many on the right saw Roberts' decision as motivated by political considerations. Some, such as Louisiana Governor Bobby Jindal, suggested that Roberts was coerced by the "liberal media," specifically the New York Times. Others hinted that Roberts was pressured by President Obama and was unwilling to stand up to the executive branch.

From Democratic supporters of the ACA came a collective sigh of relief that President Obama's signature piece of legislation had survived constitutional challenge. Some liberals, while pleased that the ACA was upheld, decried the erosion of the Commerce Clause and the limitations on the Medicaid expansion.

Some on both the left and the right thought that Roberts might be playing "the long game," pacifying Democrats in the short term while establishing precedent restricting federal power for future cases, particularly in his assessment of the Commerce Clause. 

All this in the first day and a half after the court issued its decision.

Then, on Sunday evening, Jan Crawford, a highly respected legal correspondent for CBS news with close ties to several of the conservative members of the court, notably Clarence Thomas, published a revealing piece citing sources within the court. In it she suggested that Roberts had initially sided with Scalia, Kennedy, Thomas and Alito in overturning the ACA but had later changed his mind and joined Ginsburg, Breyer, Kagan and Sotomayor in upholding the law. Crawford's article ignited a firestorm of speculation. If Roberts did, indeed, change his vote, why? When? Her article also raised questions about where the leaks from the court came from and what the motivations of those leaking might be.

On Tuesday of this week Paul Campos, a legal scholar at the University of Colorado at Boulder, published a piece at Salon.com citing his own sources within the court. In his article, Campos asserted that Roberts had initially sided with overturning the ACA and had written much of the body of the opinion that later became the dissent, before joining with the liberals in upholding the ACA under the federal taxing power. The key distinction between Campos's analysis and Crawford's is that, in Campos's view, the dissent was not authored by the four justices voting against the ACA in a display of judicial solidarity, but instead was authored primarily by Roberts, who then reconsidered his position and wrote the majority opinion upholding the ACA.

In all, it was an extraordinary week with new developments, at times, nearly every hour. The reactions to the decision generated almost as much drama as the decision itself.

Certainly the ACA decision is one of the most important of my lifetime to date, although there are still many political machinations that have yet to play out. The Republican party will continue to try to overturn the ACA through Congress and, depending on the November election, may be able to do so. But even with Republican majorities in both houses and Mitt Romney in the White House it will be difficult to fully repeal the ACA.

Here, then, is where we stand on the various outcomes of the ACA decision:

• The ACA  was upheld with nearly all its provisions by a 5-4 majority.
• The individual mandate section of the law, which assesses a small penalty to the portion of the population that does not choose to buy health insurance and is not covered by Medicaid, was upheld as part of the taxing power of the federal government. It was not upheld, as intended when written, under the section of the Constitution that allows the federal government to regulate interstate commerce. In her own opinion, Justice Ginsburg pointedly disagreed with Justice Roberts on this issue. 
• The Medicaid expansion part of the ACA was upheld but not the language that would have made it mandatory for all of the states to expand their existing Medicare programs or risk losing federal funding for Medicaid altogether. This was ruled coercive by a 7-2 vote, with only Ginsburg and Sotomayor dissenting. I tend to agree with Jeffrey Rosen that some kind of deal was negotiated between Breyer, Kagan and Roberts whereby Breyer and Kagan lent their support to the Medicaid limitations in exchange for Roberts upholding the ACA under the power to tax. 

There has been a lot of talk about Roberts acting politically in deciding to go against the grain of his conservative colleagues and uphold the ACA. That may be partially true. It seems to me, however, that all the justices act politically, albeit to different degrees. Ultimately Roberts' decision was a mixture of politics, law and a desire to maintain and strengthen the legitimacy of the court. He also demonstrated, as in the Arizona immigration decision a few days earlier, a willingness to negotiate, compromise and work with the liberals on the court. I suspect, as Jeffrey Rosen pointed out in a 1993 profile of him, that Scalia has, to some degree, alienated the other justices with his outlandish behavior, overtly political attitudes and willingness to alter his legal reasoning to fit his political beliefs. Roberts may feel the need to distance himself, at times, from Scalia's brand of adjudication.

In the final analysis the ACA decision is an example of legal and political compromise, not perfect for any one group but, I believe, exceedingly good for the country.

SCOTUS Watching

Tomorrow morning the Supreme Court will hand down a decision of historic proportions when it announces its opinion on the Affordable Care Act, President Obama's and the Democratic Party's signature piece of legislation.

Since the court heard oral arguments in March there has been endless speculation from analysts, pundits, legal thinkers and politicians on what the outcome may be. That speculation has only increased as it has become clear that the nine intend to hold the ACA decision until Thursday morning.

Monday's decisions on Arizona's immigration law and Montana's campaign finance law have added fuel to the fire. Two things in particular stand out about the Arizona decision. One, Chief Justice Roberts sided with the liberals on the court, as well as Anthony Kennedy, in striking down nearly all of the law. The only section upheld is subject to further review once enacted. As Walter Dellinger (Solicitor General in the Clinton administration) wrote, "Here are the provisions the court held were valid: No provisions. Not any. None."  The willingness of the Chief Justice to side with Kennedy, Breyer, Sotomayor and Ginsburg (Kagan recused herself) and assert federal supremacy over the states on the issue of immigration is a blow to the extreme Federalists and Originalists on the court. It also shows a willingness on the part of the Chief Justice to distance the court from the tone of partisanship that has recently dominated the American political landscape.

Second, the Arizona decision is notable for Justice Antonin Scalia's departure from any pretense of political objectivity. In a dissent separate from those of Alito and Thomas, Scalia made reference to the Obama administration's recent executive order calling for the non-enforcement of certain immigration laws. This had no relationship to the legal questions at hand and, to many observers, gave the impression of a justice overtaken by his unbridled partisanship. Some have speculated that Scalia is upset because Thursday's impending decision may not turn out as he wanted.

Here, then, is my idle speculation and prediction for tomorrow's historic decision. I believe the court will uphold all or nearly all of the ACA by a 6-3 margin with Justices Roberts and Kennedy siding with the four liberals and with Roberts writing the decision. If part of the law is stricken, it will be the mandate and that part of the decision will be 5-4 with Kennedy and Roberts joining Thomas, Alito and Scalia. That said, I believe there is a good chance that the entire law will be upheld. Regardless of the outcome, expect many separate opinions and expect Scalia, if the entire law is not stricken, to continue his clearly partisan and doomsday style opinion writing.

Reactions to Wisconsin

On Tuesday the people of Wisconsin voted to keep Scott Walker as governor. There is little question that this Tuesday's result was not only a victory for Walker and his labor reform policies but also a greater victory for the Republican party nationally as well as for those that oppose labor unions, both in the public and private sectors. The recall election in Wisconsin was closely watched by both parties as well as the national media, and both parties believed that a victory would give momentum to their causes on a national level. It was also quite a blow to organized labor, which devoted an enormous amount of resources, money and effort to the Walker recall.

That said, a few thoughts and reactions.

This was not a landslide victory for Walker or the Republican party. It was portrayed that way in many media outlets, but the final results came in at 53% for Walker and 46% for Barrett. This is what the aggregate polling predicted. However, media coverage on all the networks called the election for Walker before several Democratic-leaning counties had reported, when the results were at 60% Walker and 40% Barrett. While these early numbers suggested a landslide, the final results show a tally almost identical to that of 2010, when Walker was first elected.

The Democrats did, in fact, win one of the four State Senate seats up for recall. In the 21st district, John Lehman narrowly defeated Van Wanggaard. The Democrats now control the State Senate 17 to 16 and it is unlikely that any significant legislation will pass between now and November. As an aside, Van Wanggaard has refused to concede and has invoked that favorite Republican bogeyman, "voter fraud," as the cause of his loss.

The Democratic party was both confident in and reliant upon massive voter turnout. It just did not happen. Democrats hoped that 65-68% of eligible voters would participate, numbers that would approach turnout in a Presidential election. On Tuesday about 57% of the eligible voters participated, a number that the Democrats knew would severely damage their cause.

Ultimately, many voters simply did not believe that a recall was warranted, regardless of their feelings about Governor Walker or his policies. A large number of people believe that a recall should be used only if there is evidence of criminal activity and that was not the case in Wisconsin.

Still, the effects of the Wisconsin recall election reach beyond the narrower issue of Walker retaining his Governorship. First, Tuesday was a real blow to the labor unions, whose power is waning. The unions went all out and seemed quite confident that they had been able to mobilize voters in the weeks leading up to the recall. They were wrong. Walker's reforms have already hurt the power of public sector unions in Wisconsin and union membership in both the public and private sectors is declining.

Second, the victory in Wisconsin was a blow to Democrats nationally. Though they are downplaying the results after the fact, several prominent Democrats, including Bill Clinton, threw their weight behind Barrett to no avail. No matter how it is spun by the party, the election in Wisconsin was watched on a national level and the result was a bad one for the Democratic party. Republicans will point to their win as affirmation of their policies in the days and months between now and November.

Finally, Wisconsin has given us an early look at the effects of the Citizens United decision on elections. Walker outspent Barrett by at least 7 to 1 and much of that money came from outside the state and from individual, very wealthy donors. Billionaires that oppose labor rights, people like the Koch brothers and Sheldon Adelson, contributed literally millions of dollars to Walker. While it is unclear just how much of an effect that money had, it is clear we have entered a new era of electoral politics.

Time's Up

The Wisconsin recall election is today. Although Governor Scott Walker holds the lead in polling and is the favorite to defeat the challenger Tom Barrett, the most recent polls have shown his lead narrowing to less than three points and Democrats remain cautiously hopeful that a sweeping ground game and massive turnout could turn tonight's result to their favor.

As noted previously here, this election has all manner of potential side effects and repercussions. In the last few days the Democrats have made a push that has included ramped-up support from national pro-union groups and an appearance from former President Bill Clinton. Noticeably, the only support from President Obama has been a single missive on Twitter indicating that Tom Barrett would make a great governor. The Obama administration seems to fear that supporting a failed bid will make the President look weak nationally. There is little doubt that his strategists remember, all too well, the loss in Massachusetts of Martha Coakley to current Senator Scott Brown. Obama's late support of Coakley there proved insufficient and in the aftermath he was effectively painted as a President who could not even help the Democratic candidate hold Ted Kennedy's seat. This was a deeply embarrassing moment for the Obama team and they have not forgotten it.

Voting is underway in Wisconsin in what I believe is a barometer for the prospects of working and middle class Americans. I encourage everyone to keep a close eye on the results as they come in tonight. The polls close at 8 pm, Central time.

The Wisconsin Race Heats Up

On Friday evening Wisconsin Governor Scott Walker debated his opponent Milwaukee Mayor Tom Barrett. It was the first of two debates held in the days leading up to the June 5th recall election that will determine Walker's fate and the fate of the recall. Walker entered Friday night's debate with an aggregate polling lead over Barrett of 50.4 percent to 45.4 percent. The final debate will be held on May 31st.

By all accounts both candidates held their own at the first debate, each occasionally landing punches, but neither coming out a clear victor. This bodes well for Walker who, in addition to his polling lead, has out-raised Barrett in Wisconsin by nearly 25 to 1. Both men have received considerable financial support from out-of-state interests. 

In addition to battling the incumbent and being outspent by a considerable margin, Barrett has wrestled with another problem: a glaring lack of support from the DNC and the office of the President. Though the Barrett campaign has made clear that they would appreciate the support of the President, thus far Obama has done little more than issue statements of support. While the Obama administration supports Barrett's platform in principle, they are politically wary of lending the support the Barrett campaign desperately needs to close the gap with Walker. It is widely speculated that the President and his strategists fear being tied to a possible Barrett loss in the Badger state when November rolls around.

Though recent polls have shown Barrett shaving a few points off Walker's lead, Barrett faces an uphill battle in the next two weeks. Walker will continue to outspend him and without the pull of Presidential support, it seems likely that Walker's better-organized supporters will turn out more heavily than Barrett's supporters on June fifth.

Most observers are paying closest attention to the gubernatorial contest, which plays to the national media and the national parties as well. In the heat of the gubernatorial contest, however,  we should not lose sight of the fact that several other elections are also at stake which mean nearly as much to Wisconsin as the headliner. Four seats in the state Senate are in play on June 5th; if the Democratic party takes just one they will regain control of the Senate, where 17 of the 33 seats are held by Republicans. Democratic control of the Senate in Wisconsin will make it much, much more difficult for Scott Walker to advance his controversial agenda, should he hold on to the governorship.

That said, a victory for Walker can be expected to embolden other states considering the pursuit of anti-union and anti-collective bargaining legislation. It will also have a carry-over effect to November, including the possibility, horrifying to Democrats though it may be, that Wisconsin is in play for the Presidential election.

Another Note on Polling

Alana Goodman has a post up at Commentary today in reaction to a recent Rasmussen poll. In it she asserts that President Obama has manufactured issues to distract from the economy and that this is hurting him with voters. She points out that the most recent Rasmussen poll shows Mitt Romney up 7%, 50 to 43. Goodman argues that issues like gay marriage are an attempt by the President to divert attention from the struggling economy and Mitt Romney's attempts to brush aside all other issues and focus directly on the economy are working. This, she says, is demonstrated in the polling numbers.

I find this perplexing, although not because of her argument about the issues; it is clearly to Romney's advantage to focus on the economy and Obama must make other arguments while the economy continues to struggle. Rather, I disagree with the polling numbers she chooses to support her theory.

As I have suggested previously, individual polling numbers can be very deceptive. The Rasmussen poll is notoriously inclined toward Republican candidates. While the race between Obama and Romney has unquestionably tightened in recent weeks, every polling aggregate that I have seen shows the President with a lead nationally, albeit a small one. The Rasmussen poll is clearly an outlier. At no point in the piece does Ms. Goodman take note of other polling or aggregate polling averages. Real Clear Politics has the average of seven different polls (including Rasmussen) available at its site; Obama leads Romney by 1.3% in that calculus, 46.7 to 45.4.

Pieces like this, on both the left and the right, seem designed to serve the political inclinations of their readership and do not leave readers more informed.

The Wisconsin Recall Election

The sprint to June 5th has begun. The fate of the Wisconsin recall of Governor Scott Walker will be determined in the next four weeks. Walker is challenged by Milwaukee Mayor Tom Barrett in a race that will be hard fought, very close and, by all accounts, one of the most expensive gubernatorial races in the history of the United States. A recent Marquette Law School poll puts Barrett ahead 47-46 among registered voters and Walker ahead 48-47 among likely voters. 

In U.S. history only two governors have been recalled: Lynn Frazier, Governor of North Dakota in 1921; and Gray Davis, Governor of California in 2003, who was replaced by the actor Arnold Schwartzenegger. The Wisconsin race carries with it implications on both the state and national levels.

On the state level, if Walker holds on to the governorship, it will be a tremendous blow to organized labor. Walker has already reduced the collective bargaining rights of public sector union employees, resulting in massive protests in the capitol last year. Though his campaign insists it is not his policy, there appears to be some evidence that Walker, reaffirmed by a recall election win, would push to further draw down union power and possibly make Wisconsin a "right -to-work" state.

Barrett, though not the first choice of labor advocates in the Democratic primary, now has the full support of labor in the state and the nation. All elements of the Democratic party appear to have united solidly behind Barrett in an attempt to defeat Walker. If elected, Barrett has vowed to restore collective bargaining rights and protect public service unions from any attempts to erode their standing.

On the national level, many see the Wisconsin recall election as a microcosm of the greater battle in economic policy between the model favored by the Congressional Republican party and that supported by the Democratic party.

As a result of the importance both parties attach to the Wisconsin recall, massive amounts of money have poured into the Walker and Barrett campaigns in the form of both direct contributions and super-PAC money. The campaign finance watchdog group The Wisconsin Democracy Campaign estimates that total spending on the June 5th election will be over $60 million dollars and could well be closer to $80 million. Much of this money, for both sides, comes from out-of-state support. For Walker, it is estimated that more than two thirds of his financial support comes from interests outside Wisconsin.

A Walker victory could encourage other governors, such as Chris Christie in New Jersey and John Kasich in Ohio, who support similar anti-union policies, much smaller government and fewer public sector employees.

On the other hand, a Barrett victory would indicate strong support for unions and the role of government in the economy. A win in Wisconsin would affirm the belief that Americans see unions as a critical component of the middle class.

The next four weeks in Wisconsin deserve close attention and the result on June 5th will be an early leading indicator for the national election in November for President and for the toss-up seats in the House and Senate. Whichever party wins in Wisconsin will use that victory as a weapon to attack the policies of their opposition.