Political update for April, 2012

Sometimes I worry that my legion of fans really need political updates every week, but, alas, I manage once a month, at best.

As Romney comes closer to inevitability, and Santorum, Gingrich and Paul just become barely felt irritants, if they stay in at all, our thrills will rapidly dissipate. We will get to watch Romney pick a V.P. That’s always fun. Sometimes more fun than who gets to be president (Think Sarah Palin and Tom Eagleton). Everyone knows there is a good chance it will be Rubio, although he has repeatedly said, not “I’m not thinking about it,” but absolutely – “No” - sort of the way Christie kept saying no to a presidential run (but, then, at the end, he did give it some serious thought for a few days). No one really believes Rubio when he says “No.” I don't. I doubt his wife believes him.

NO!

Here’s a “No” you can believe. You have to love this late March poll from the Pew Research Center. They asked subjects to give one word responses to the names of the four Republican candidates. They then broke the answers down to positive, neutral and negative responses (and I don’t know). The first or second response for each nominee was – “no” or “no way.” That’s hysterical. In the case of Paul and Gingrich, the other word was “old.”  In the case of Romney, it was “rich.” In the case of Santorum, “conservative.”

I did my own math and broke them down this way, by candidate –

The first column ignores the neutral words and shows what percentage of positive words there were to just positive and negative one

The second column is the number of positive or neutral words as a percentage of positive, negative and neutral words.

And the third column is just the breakdown of all the words per candidate as given by Pew including positive, negative, neutral and those who had no opinion.

                        Pos as %            pos&neut as %          breakdown all

                        of pos and neg   of pos&neut&neg      categories
                                                                                     pos/neg/neut/don’tknow

Gingrich          20                    46                               10/39/23/28                                        

Paul                 36                    58                               15/27/23/36
Romney           32                    59                               14/30/29/28
Santorum         39                    54                               13/30/22/35

Notice that Gingrich has the highest negatives by far. He has the lowest positives as well. This is consistent with my position that he would get slaughtered in a general election. Romney has the highest neutrals, which really isn’t surprising. If you compare those who had the best ratio of positive to negative, it is ranked Santorum, Paul, Romney and then Gingrich. If you take positives and neutrals against all those who had opinions (that is, excluding I don’t know), then it is ranked Romney, Paul and then slightly lower Santorum and then, of course, last - Gingrich.

Not that this should surprise anyone. Gingrich and Santorum are going to be liked or disliked by those with more liberal or conservative positions and Romney liked best by moderates. I personally like that Paul did better than Gingrich and Santorum concerning positives and neutrals as opposed to negatives, but, in the end, it doesn’t matter. No one thinks he could win.

Santorum loses where he should be strongest

Just a quick note on a little fact I picked up this week. Obviously, Santorum is stronger than Romney with evangelists – Romney can’t win in states where they are more than 50%. But, oddly, Santorum is not an evangelist. He is a Catholic. But, the Catholics have gone more for Romney in every single state where they have exit polls excepting Tennessee.

This is actually good news, far as I’m concerned. It means people care less about precisely what religion a candidate is, and more about their values. Of course, as of last weekend, we saw Romney finally do better than Santorum with evangelicals, but that is just because many of them are buying the narrative (as they should) that Romney is going to win.

But now that Romney seems like a lock – is that it for the Republicans?

Columnist Charles M. Blow wrote on April 4^th that now that Romney seemed assured a victory, the election was pretty much over, as Obama can be charismatic on the campaign trail and Romney is a slight more animated Al Gore (actually, that is my description of what he said). The race was pretty much over.

You have to laugh when so called pundits or experts are so certain in their predictions, particularly of the “Hardy har har har, the opposition has no chance at all” variety. Not very many pundits were thinking Obama was going to win handily back in early 2008. Most didn't even think he'd be the nominee. And, most wrote off McCain when he seemed to drop out of sight in the primaries for a while. Many pundits seriously thought Huntsman had a shot this time. I mean, Huntsman? How? Nor did many (any?) expect Santorum to surge as he has this time (including the world famous pundit who writes this blog). Elections simply depend on too many circumstances and variables to predict with any certainty unless there is a really popular incumbent. I remember how my favorite liberal rejoiced when Obama was elected in '08, certain that the Republicans were dead as a major party, and having to eat crow at the rise of the tea party and the 2010 elections. Similarly, I remember a conservative I know saying after the midterm elections that it was obvious that any Republican would be able to beat Obama in 2012. The bottom line is, make your predictions for fun - I do - but, when you are right, it is as much luck as anything else. And, admit your biases – oh, wise pundits. Not for us - we already know them, most of the time. For yourselves. It will make you look less silly.

SHAM!  

I listened to the oral arguments in late March regarding the Affordable Care Act (aka Obamacare). The court scheduled four separate arguments on this one case over 3 days, on the specific subjects they wanted covered. The issue the first day was whether the Tax Anti-injunction Act applies to the case. This is a highly technical argument, but it does not seem really difficult to see where the court is heading.

If the part of the law requiring a mandate is really a tax, then it cannot be challenged in court until such time as it is due, paid and administrative remedies are exhausted (in other words, the plaintiff would have to go through the IRS process). If that applies to this case, then the cases challenging the law which have gotten so much publicity have to be dismissed and can’t be re-filed at least until 2015. This would be critical, because if that is the case, then the law would be completely in effect and, given the comprehensive and labyrinth like characteristics of the ACA, even a hostile court would know how difficult that would be to entangle if they overturned it.

Ironically, though, not only have those challenging the act said the anti-injunction law  doesn’t apply here, but, at least for now, so does the government. Unfortunately for both of them – it is a jurisdictional question that cannot just be waived. If the court finds the cases violate the anti-injunction law, then that’s the end of the matter.

But, the court won’t do that. At least, I seriously doubt it. From the questions I heard the court ask the attorneys, it seems that they have largely already made up their mind to find some kind of exception or another to the act (nothing so frustrates lay people as to the law like exceptions).

The reason for the anti-injunction law is that if people could just challenge taxes willy nilly, anytime they wanted to, legitimately or not, the government would be deprived of its “life’s blood” – money – and, as a general rule, that would not be a good idea.

There are some serious problems with the government claiming that the mandate to buy health insurance which is the center of the case - is not a tax, so that they can legally hear the case. The first problem is - the government repeatedly called it a “tax” while the law was being debated. Second, when the cases started, the government tried to get them dismissed, again claiming it was a tax. Third, even after the government decided the mandate wasn’t a tax so that the anti-injunction law did not apply, they still argued it was a tax for other purposes (ridiculous inconsistencies are the other things that lay people can’t stand about the law). Last, in the oral argument before the Supreme Court last week – the government’s hapless attorney (and, I feel bad for the guy, but he was as bad as everyone said) couldn’t help himself but call it a “tax” to the point that one of the judges suggested he might want to watch that. It’s funny to a point.

Doesn’t matter how bad their attorney was, the court is going to rule on Obamacare in its entirety. And, it’s a sham. Because, of course it is a tax.

The oral argument concerning the central issue - whether the mandate (that all individuals must purchase insurance or pay a tax/penalty to the IRS) was possibly the most interesting one I’ve heard in a long time (there is no video – C-Span replays the audio after the argument is over and puts up static pictures of which attorney is speaking and which judge questioning, plus sometimes a little information below it). The question of whether the mandate is constitutional – whether under the commerce clause the government has the right to order a person to participate in commerce by getting insurance or paying a penalty if they do not. It became quite clear during the questioning that the four “liberal” judges were very comfortable with the idea that the government can intervene in pretty much anything it wants that isn’t expressly forbidden by the Constitution and the conservatives were comfortable with limits on government intervention. The truth is, for them, they have really lost that battle long, long ago. Obviously, these are generalizations, but largely true.

The power of the federal government under the commerce clause has grown dramatically over the last two centuries already. But, there are some limits. First, there are some very few things that courts will say are still “local” to a state and thus not “interstate,” in nature. Two, there are also some very few things which are not considered commerce like, e.g., violence. In this case, the most pertinent question is whether the government can order someone to purchase insurance and thereby put themselves in commerce.

I expect the answer will be no, the federal government cannot do that. It was interesting to me that Paul Clement, a former Solicitor General himself, arguing for 26 states opposed to the law, said that a state, as opposed to the federal government, would have the right to force their citizens to do so. This is precisely Romney’s argument with respect to the Massachusetts’s law he signed into law when he was governor there, for which he is being mocked and tortured about now. I’m sure he was pleased with Clement’s comment. He’ll be even happier if one of the judge’s say it.

The last of the four issues surrounding the law being argued involved the Medicare provisions (the third one was whether the act is severable – if the mandate falls, does the entire Act?) The Medicare question is whether the federal government telling the states that it either does what the government requests with respect to certain matters or they will be cut off from all Medicare payments.

All states get Medicare money from the federal government which they distribute to their citizens. It is an awful lot of money and the loss of it would certainly cause whichever state administration managed to lose it, to also lose their heads – at least professionally – if they did not work out an agreement with the federal government at the end of the day (the way it is usually resolved).

This type of “coercion” by the federal government is not really new. The states are calling this unacceptable coercion because of the nature of the entire Affordable Care Act, including the mandate. I think the complainants have less chance to win this part of the case. But, that’s not really why I bring it up. What interested me was the way that everyone involved, lawyers and judges, simply accepted that it was perfectly okay for the federal government to take tax money from people (obviously, people living in a state, for the most part) and then return the money to the state as if they were doing them a big favor. That includes, of course, states which pay more money in taxes than they get back. No one even suggested that if the federal government did not take the money from the state’s citizens in the first place, to pay for things which are really local in nature (like older peoples’ or disabled persons’ health care) and then give it back to the states as if it was a wonderful gift, for which the states should be grateful to accept all the federal baggage tied to it, that might be better.

I’m not suggesting that we are going to wake up one day and the federal government is going to go all Ron Paul on us and decide it is going to greatly reduce taxes so that either we can spend it ourselves or the states can tax us for things specifically beneficial to our state. But, it is stunning – even now after decades of it - that we’ve so far from the supposed federalism we were designed to have, that no one will even mention it in the Supreme Court.

Obama’s blunder

It must be really hard to be president and run for office again when things aren’t going so well. It must be really hard to have your signature piece of legislation about to be overturned by the Supreme Court. Because, for President Obama to claim that it would be unprecedented for the Court to overturn a federal law, is just silly. It’s more than silly. It’s kooky and crazy and so untrue that it can be mocked by anyone with the slightest bit of legal knowledge and no one, not even the Attorney General, can defend it. The Supreme Court has, since Marbury v. Madison in 1803, claimed the right to overturn federal laws. It is a little bit rare, but not terribly so, and certainly not unprecedented. But, lots of people have written on this already and why flog a dead horse?

What interests me is the irony – typical irony, I should say – of a political party piling upon an adversary by going against one of their pet arguments. For, it happens to be the case that conservatives have for the longest time opposed Marbury v. Madison as incorrect law, particularly when they did not want a law overturned. This is so much the case, that when arch-conservative Justice Scalia was having his confirmation hearing in the Senate, he actually was asked about whether he thought Marbury was settled law and refused to answer – twice - because he thought it might come before him again and he would want to consider it. He did think better of it (going by my memory) and said he would not. But, he had to give it some thought. Or, take conservative talk show host, Mark Levin host who writes on legal topics as well. In his book on the Supreme Court, Men in Black, he wrote, “Neither the history of our founding nor the establishment of our govenments supports the current arrangement in which the judiciary rules supreme. Indeed, Marshall’s ruling in Marbury was nothing short of a counter-revolution. For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.”

In other words, Marbury was wrong.

I don’t want to be mistaken. Marbury has been the law for over 200 years. It is the law and Obama’s comment was cra-a-a-zy. But, conservatives have been beating him up for it for a couple of days, when they have been for the longest time – in his corner on that point. This is the way partisans are. You know, that reminds me. I think I said last political update that I was going to bash Obama this time, and I just realized I forgot. Okay, next one.

Egypt Muslim Brotherhood makes a sly chess move

I am not a fan of the Muslim Brotherhood, or the head of any nation where they do not cherish the enlightenment values. But, there rise in Egypt, presuming they are not crushed by the military in the near future, makes what is going on in Israel interesting, if more uncomfortable for Israel.

I have been writing for years here Israel stands on a precipice despite their great military power. The reason for this is the dissemination of military technology to less developed countries and organizations such that even Israel’s relatively weak neighbors like Hizbollah and Hamas will sooner than one thinks have so many missiles, which someday they will also be able to aim, so that even tiny Israel’s victory in another war may be such a blow to Israel that she is destroyed - or nearly so.

However, I sincerely believe that many of Israel’s neighboring governments, particularly those controlled by Sunnis like Jordan and Saudi Arabia, no longer really expect or at least strongly desire, Israel’s demise. I’m differentiating the governments from the Middle Eastern people, who are very strongly conditioned to be anti-Israeli.

Armed aggression has never worked against Israel. What I have always thought would work better for the Palestinians would be a cooperative and friendly attitude by them – more “poor us,” and less “I kill you.”  In other words, when the word “martyr” ceases to mean someone who was killed during an aggressive and violent act by them or because they were associated with terrorists and starts to mean Palestinians who suffer or die because they do not have the same rights to self-governance as Israel insists upon for itself. This would turn any Israeli government into the bad guys for virtually everyone not already of that persuasion, excepting many American evangelicals or Jews. For some reason, probably cultural, the Arab world just did not get this strategy. They want to win a fight.  And, Hamas’ existence and power has made it easy for a politician like Netanyahu never to go back to serious negotiations.

The Brotherhood, which has sworn off violence long ago, at least so they claim (we can be vigilant and cynical about any former terrorist organization which claims to have changed its stripes), has made a move in the direction that might actually help the Palestinians. That shouldn’t sound so revolutionary, but it is.

Instead of backing Hamas, a position which doesn’t help Hamas or any Palestinian, they have transferred their backing to Fatah, which is, the same party that Israel wants to deal with. It is more complicated than this, of course – what in the Middle East is not? – as Fatah and Hamas have also supposedly buried the hatchet with each other, a rapprochement that Israel rejects as making it impossible for them to negotiate with Fatah either.

Abdul Mawgoud Dardery, a member of Egypt’s parliament, and Brotherhood member (the Freedom and Justice Party is the name of the political party associated with them) made a speech at a conference at Georgetown University in D.C. If you listen to his speech, you think, okay, it sounds like the Freedom and Justice Party wants Egypt to be free and just. He talks about all groups participating in the government, including, non-Muslims, Christians and even secular people participating. It’s all about democracy and respecting democratic institutions, free speech and so on for him and the other Brotherhood members on the panel I watched. He claims they want the spirit of Sharia law – such as justice – whatever that means – and not Sharia laws. Considering that polls show that the large majority of Egyptians like Sharia laws, including some of its more violent aspects that is a little hard to believe. Time will tell, of course, as in all countries. We still cannot know whether the Arab Spring will be good for Western countries or bad.

There are lots of doubters and I’m cynical, if hopeful. But, this the right lip service for them, at least. And a smart move. Whether they mean it or not.

 
That's it for this month. Next month I really am going to beat up on the president. He deserves it.