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.
Wednesday, June 27, 2012
Friday, June 8, 2012
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.
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.
Tuesday, June 5, 2012
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.
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.
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