Tag: Jonathan Chait

For those of us old enough to remember the time when President Obama’s reelection campaign was flailing and desperate allies were bombarding him with advice — it was about two weeks ago — it feels a little soon for Republicans to dissolve into panic of their own. And yet here we are.

The basic chronology of the latest panic is as follows. First, Rupert Murdoch — who commands a vast global media empire — decided his personal Twitter feed was the medium of choice to communicate his belief that Romney needs to replace his campaign staff. Fellow right-wing business titan Jack Welch concurred. Then the Wall Street Journal editorial page fired off a jittery editorial bemoaning his “insular staff and strategy that are slowly squandering an historic opportunity.”

All this was the backdrop for Romney’s poorly received interview yesterday, in which he attempted to clarify his position on whether the individual mandate is a tax. His adviser Eric Fehrnstrom initially said it was not. Now Romney says it is. Dropped into the roiling waters of Republican discontent, this is the perfect recipe for an early summer campaign freak-out.

It’s worth bearing in mind a couple points, though. First, there’s not a whole lot of evidence that Romney is actually blowing it right now. The polls have registered a slight uptick for Obama, possibly related to his campaign’s ability to hammer home the ugly underside of Romney’s business career, or possibly reflecting a random statistical blip.

The mandate-tax brouhaha merely reflects the impossible position Romney finds himself in. Remember, as late as 2010, Romney was praising Obama’s decision to include an individual mandate in his health-care law. Then Republicans decided it was unconstitutional, and since then have concluded it is the only thing worse than unconstitutional: a tax. So Republicans insisted that Romney not undercut them and concur that it is indeed a tax. So he did. And when asked about the identical policy he introduced to Massachusetts, here was his attempt to draw a distinction:

Actually, the — chief justice, in his opinion, made it very clear that, at the state level — states have the power to put in place mandates. They don’t need to require them to be called taxes in order for them to be constitutional. And — and as a result, Massachusetts’ mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.

I have read this passage countless time in an attempt to make sense of it. Romney seems to be asserting that Obama’s individual mandate is a tax because the Supreme  Court ruled it is justifiable under the taxing authority, and because his individual mandate never faced a legal challenge, it never had to declare itself a tax, so it isn’t, even though it is exactly the same thing. This is bizarre.

On the other hand, you try explaining a coherent worldview when you’re in Romney’s position. It’s impossible. The best you can to is emit some kind of word salad.

Here is the deeper problem. Conservatives say they want Romney to change his staff or alter his campaign tactics. But what they really want is a different candidate and a different electorate. They want to believe that the American people are hungering for detailed endorsements of Republican plans to cut entitlement spending  and taxes for the rich and launch a philosophical assault on the welfare state. But that’s not what the public wants and Romney knows it.

People don’t like the health-care law because they have no idea what it does and think it was a distraction from the economy. Romney’s best and only campaign strategy is to exploit discontent with the disastrous economy. He needs the votes of as many people as possible who feel frustrated with Obama, which is why he is leaving his alternative as vague as possible. Obama is the candidate who wants to turn the election into a specific choice between competing visions for the future, because Obama’s preference — in which taxes for the rich are higher and entitlement spending gets cut less — is vastly more popular. What’s more, Romney’s history as father of national health insurance and sometime-advocate of the same national plan as the one Obama passed exposes the philosophical inanity of the Republican belief that Obamacare represents socialism.

The smart move for Romney is to ignore conservative caterwauling. The only question is whether he’ll be able to, or whether his base, as it has done from time to time, will force him to run the campaign they want rather than the one Romney needs.

Read more posts by Jonathan Chait

Filed Under:
the national interest
,politics
,campaign 2012
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via Daily Intel http://nymag.com/daily/intel/2012/07/hey-republicans-leave-mitt-aloooone.html

Jan Crawford has an amazing report showing what many of us suspected immediately when the Supreme Court announced its shocking and bizarre decision to uphold the Affordable Care Act: John Roberts switched his position on the law because he feared the crisis of legitimacy he would create by embracing such an activist position. He is perfectly eager to join in future bouts of right-wing judicial activism, but this particular one, and this particular time, frightened him away from the precipice.

I should explain why I call the decision shocking and bizarre. There were numerous arguments for the constitutionality of the law. The argument that it could be uphold under the power to tax struck me as convincing (Jack Balkin made the case a month before the decision) but not completely airtight. You could plausibly deny the mandate was a tax, whereas the arguments denying it as a function of the Commerce Clause were insanely tendentious. Liberal lawyers were unanimously supportive of the Commerce Cause justification and divided on the taxing arguments. Conservative lawyers were divided on the Commerce Clause and united on the taxing authority. The overlap of legal minds willing to accept the fantastical right-wing arguments against the law but also to accept the weakest liberal argument for it contained nobody at all, until Roberts himself stepped forward to claim this unoccupied territory.

Crawford’s report will enrage conservatives. (The conservative justices and/or clerks who spoke with her probably leaked the story precisely in the hope that it would.) They’re right to be enraged. The essence of law is to decide cases on the basis of what the law says, not on the basis of personal preference or some other consideration. Roberts seems to have corrupted his role as a judge, deciding upon the outcome that made him most comfortable and working backward to a justification for it. The epithet legal scholars use for this sort of thing is a “results-oriented decision.”

And this suggests why, as reassuring as the bottom-line result of Roberts’s decision may be, the process by which he arrived at it was so unnerving. The legal arguments he did endorse were simply crazy. And, beneath the legal gobbledygook, the form of craziness was crude and obvious.

The case against the law was, basically, to devise a series of often niggling, semantic or outright false distinctions between Obamacare and other of the many ways in which Congress has regulated commerce before. Then, freed from precedent, it could turn the decision into a philosophical game, imagining that upholding this law would enable some future law which adopted a vaguely related rationale to some horrible dystopian end (mandatory broccoli!) You could use this kind of dorm room logic to declare any law unconstitutional. All you have to do is find some way in which it’s different from previous laws – and every law is different from other laws in some way – then imagine President Stalin and a complaint Congress twisting the justification to some unimaginable purpose, and presto, unconstitutional.

David Frum brilliantly compares the this-isn’t-really-in-the-Constitution-so-I’ll-wing-it logic of the conservative dissent to the famous liberal activism that liberal justices used to create a right to sexual freedom in Griswold v. Connecticut. That earlier case, rightly scored by conservatives for decades, declared that “emanations” from the Third, Fourth, Ninth and Tenth Amendments created a right to privacy that extended to sex. The four conservative justices insisted Obamacare couldn’t be constitutional because… well, just because:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

They can’t say what limits the government can prescribe upon private conduct. But they don’t like this health care business. So they’ll just cite the Constitution in general as their source here, with all the legal precision of some guy in a tricorner hat at a Tea Party rally. (Scalia also hates dope smokers so anything he may have said about limiting their private conduct does not apply to health care.)

Roberts was willing to endorse the legal logic of this thinly veiled justification, but unwilling to accept the political consequences of it. If his decision was justice, it was justice of the roughest kind.

Read more posts by Jonathan Chait

Filed Under:
the national interest
,politics
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via Daily Intel http://nymag.com/daily/intel/2012/07/john-roberts-writes-his-own-law.html