Why NFIB v. Sebelius May Be Our Savior

With any decision of the Supreme Court, we have to understand the multiple reasoning behind it. Was it shortsightedness by Chief Justice Roberts, or was it something so political that we didn't even realize it ourselves. In the landmark decision of the National Federation of Independent Business v. Sebelius by a 5-4 decision, the Court upheld in part and struck down in part the individual mandate and the medicaid expansion respectively.

More than this, the Chief Justice, John Roberts--a notorious conservative confirmed under embattled President Bush--sided with the four justices who leaned left of center: Kagan, Sotomayor, Ginsberg, and Breyer. Consequently, Alito, Scalia, Kennedy, and Thomas dissented to the rulings of the Court, and they dissented in harsh manner.

Let's start with the basics: In this case, we had the challenge of the medicaid portion that would force states to take money, changes to the program, and other alterations or risk losing all of their money for medicaid if they decided not to opt-in. This, under the Court Opinion said was a big "no-no"! The Court Opinion basically said that the federal government could not force any state to take money for the changes in the law for Medicare or Medicaid. So, under the decision, this basically lets States out of being forced into the larger new law and doesn't lock them into anything significant.

Secondly, the largest challenge of the law: the universal mandate. This portion of the Affordable Care Act, was the biggest controversy. The President and Congress, led by Democrats with a few Republicans, believed--in what they probably thought was best--to make sure that all members of the US had healthcare. They, however, didn't expect a large push-back from voters. Largely, the Universal Mandate was considered bad form and a good portion of the population did not agree with this. They believed and still do to some extent, that government should not and could not force all members of a nation to pay into the program of universal healthcare. In the opinion, written by Chief Justice Roberts, the arguments were long, but in the short: the government's claim that it could be upheld by virtue of the Commerce Clause (meaning it would be a matter of commerce) was insufficient since no Congress has issued that not participating in commerce is commerce, that the Necessary and Proper Clause (that Congress had the necessary and proper power to force individuals to buy insurance) was neither applicable because of the interpretation was that the clause was only enforceable for issues granted by the Constitution, and finally the use of Taxation. This last part is what the Court opinion focused on, saying that the individual mandate (universal mandate) could be predicated on the powers of Congress through taxation since it is a universal concept.

In essence, the Court made many new friends and enemies. But in an article by IMCitizen called, "Chief Justice Roberts Is A Genius" he posits that this was actually some crafty work by the Chief Justice to upend the actual law itself. You can read for yourself, but I want to point out two particular points of this article that I agree with. While Roberts may have made some enemies and some complicated decisions, he in effect dismantled the ability of the Obama Administration, the Democratic Party, and Democratic members to call upon the collective use of the Commerce Clause and the Necessary and Proper Clause as their defense. Their new defense is that it is taxable, meaning that they'd have to approve of a tax-hike to pay for the Affordable Care Act in its entirety--especially in our economic climate, this doesn't look well. Secondly, the Medicaid portion basically says that if a state refuses to opt-in for the Affordable Care Act provisions for exchange programs and other medical care necessities, the government cannot take away the current levels of funding for the state. So, this means--as IMCitizen correctly identifies as the out for all Republican controlled states--which is about 28 or more state.

So did Chief Justice Roberts do something political on the bench? Probably, but he did it in concert with the four more liberal justices. Basically signing that those Justices agreed that a state could opt-out of the program and affirmed that the individual mandate is predicated on taxation and fee assessments than the power and duty of Congress to be able to control it. 

The Wisconsin Attitude: Political Wars and the Triumph

1921: Lynn Frazier. 2003: Gray Davis. 2012: ?

Politics, is an art form many think is only good for those of the evil minded and radically charged. Actually, its the business of politics that morphs the political minded into the "cesspool of deception and arrogance." History shows us that people will do anything to make sure their agenda is the one that prevails. Lynn Frazier and Gray Davis were to governors (of North Dakota and California respectively) who had successful attempts by the electorate to unseat them.

Governor Scott Walker of Wisconsin is not one of them. After successfully and increasing the votes, he retained his seat as Governor. How did he do this? One might speculate that he was given a miracle, which may be true. But, look at it this way, he defeated a large group--and a formerly powerful group. When Walker signed a law revoking rights of Unions, he was placed on the pedestal of evil, vilifying the workers and dismantling all that had been done to protect workers' rights.

As luck would have it, Wisconsin was in a state of disarray, one that had a massive budget issue that needed to be solved quickly. And, just as Walker promised, he turned his state from deficit spending to surplus spending. His battle with State Democrats yielded one thing: Republicans can take on the fight and win. Wisconsin is notorious for its Democrat leaning, especially in its showing on the 2008 election but quickly shifted back to Republican in the 2010 midterm election. So what does this show for 2012? There's no clear answer. It could easily sway back to Democrat for the national election or it could easily move closer to the right and vote Republican--which would help Governor Romney, who just clenched the unofficial number to take the Republican Nomination.

Suffice it to say, this feat of retaining a seat in the midst of a recall election by 54-percent, a 2-percent gain from his initial election, to 46-percent is a wake up call for Democrats. It is possible that even their own are shifting away, or they realize that the Unions of old are dead and the Unions of now are more dangerous than they wanted. While Unions are good, circa 1800-1980, the past years have only damaged workers, reducing their own rights and limiting their voices through the Employee Free Choice Act. While it may seem to be a significant streamline of measures to ensure a union, it takes away may things that protect Union members, such as the secret-ballot of voting for representatives. According to Mackinac Center for Public Policy, a study was shown that of those polled, 53-percent found that a secret ballot was the fairest way compared to the alternative from the EFCA. Also included in this study on the question of whether Congress should keep or replace the existing ways election process. A resounding 78-percent said to keep it the same, while only 11-percent chose to replace it and another 11-percent were not sure.

Maybe Unions aren't as good as they once were, and the statistics may be showing it. Nevertheless, the win for Governor Walker remains a valuable asset for Republicans, even if Democrats say otherwise. The 2012 election will be an increasingly interesting election.

The 2012 Election: What Is Going to Happen?

The 2012 election will probably be one of the most contentious elections to date, more so than the 2000 election in which it was decided by the Supreme Court. With two very polarizing candidates from both Party's, the election could split this nation--but this is far from reality at this time.

What needs to be understood is that, this election is based largely on the economic downturn of 2008 and the continual shrinking of the economy coupled with the rise of unemployment, stock market lagging, the Euro-Zone in jeopardy from Greece, and largely investments. The current President, while being able to pull out of the Iraq Conflict and seemingly moving towards reducing the Afghanistan Conflict, has had very few wins (the DADT repeal, and the controversial Affordable Health Care Act) which have only split the nation and caused his ratings during his first term to hover close to 50 percent. Normally, a first term president is capable of holding a higher--albeit a medium rating of 50 percent to 60 percent of approval. President Obama established a high dominance of popular support and ratings during his first year in office. As several colleagues and I discuss continually, if he had planned his objectives correctly, the outcome of this election may not be so contentious. (We'll save this for another day.) 

2010 Census Apportionment of US House of Reps. 

First, to understand this cycle of elections we must first look at the numbers. The Electoral College represents a system that--albeit controversial to many--is old fashioned and highly misunderstood. The Electoral Map is considered in two forms: the apportionment of Congressional seats and the allotment of two Senatorial seats. These two allotments create the total value of the Electoral College at being 535 votes allowed. In any election 270 is necessary to capture the election for a president. So, why am I bringing this up? Well, the 2010 Census brought us some unique changes, several key states have either gained or lost at least1 or 2 seats. The photo from TPM and the U.S. Census Bureau show the states mostly affected by the changes in population. One of the key points here is that Florida and Texas have gained the more electoral votes and thus more Representatives in Congress. New York and Pennsylvania have lost 2 seats in each state. This has unique impact of Democratic Party control of the New England States and how it may not translate into an automatic win for President Obama. The Obama team will need to move outside of the more traditional states and attempt to advance into Republican territory as it did in 2008 and failed to do in 2004. 

Yet, with the rising unpopularity among Independents and minorities that have been disenfranchised by the Democratic Party, Team Obama must reinvigorate its use of the youth vote just four years ago. Unfortunately, those same youth that catapulted him to the presidency may not be there. With the constant battles of political correctness and political infighting--now seen from the recent ads Team Obama has pushed against his confirmed frontrunner Team Romney. In the most recent polls, from RealClearPolitics, Team Obama has roughly 1 point lead, which leading up to the election means that the President has a much less change than he did almost a year ago in polling data. Team Romney, since his primary competitors have all backed out, has a clear road to the nomination and can now directly focus on the President and his record of controversial items. 

Second, we must look at the value of other factors, such as the entire elections on the entire congress.

"This means a disproportionately high number of Democrats seats are up for grabs in 2012. Including the two Independent Senators who caucus with the Democrats, the party has twenty-three seats to defend. In contrast, the GOP has only ten. This is significant for obvious reasons. Republicans have to defend less than half the seats of their opponents. Their opponents will have to allocate more time and resources than they would like. In addition, there is less opportunity for Democrats to take Republican seats as a hedge against possible losses (luckily for liberals, a few of the seats on the Republican side happen to be competitive- more on that later)."

A quote from an article by Kyle Romines, above, clearly depicts the problem for Democrats.Money is key and paramount to this electoral fight. The Democratic National Convention, in effect, will not only outspend Republicans, but must in essence fund itself in a highly competitive race. It could in the end, leave the DNC with a massive debt bill that it will need to fix before the midterm elections. In this scenario, Republicans would need to capture four seats, with keeping its ten, to seal a majority vote to unseat the Democratic controlled Senate from 2006. The Senate plays a much bigger role than some consider, especially with nominations for Supreme Court appointments, treaties, and other items that must be sent to the Senate for approval. In the Senate race, Democrats have a large possibility of losing those four seats needed to retain a majority--if the President wins reelection and maintains the tie-breaker vote of Vice-President Biden. If, of course, Romney wins the election, Republicans would only need three seats to retain majority as the Senate would be tied fifty votes to fifty in a party lineup.

Finally, let's consider the impact of the last four years for this election. President Obama had seemingly wooed the populous and somewhat can by his ability of speech. Yet, this does not always translate into votes. In all of what President Obama wanted to do, he has achieved two items: health care reform and pulling out of Iraq. While some would stipulate his push for LGBT rights, through the DADT repeal, it has done little to improve the overall goal of LGBT advocates--at least that is what some of my colleagues are stating independently. Therefore, it is not an achievement in the manner in the face of Affordable Health Care Act, etc. Obama may have been able to use minority politics as a cornerstone of his implementation, but beyond his vehement speeches and grandstanding, where are those policy initiatives? Not really anywhere beyond the minimal required. Would Republicans do the same? Yes, they have in the past to some constitutents and will most likely do it in the future. Moreover, what must be said is that this election is pivotal on two fronts: the decline of the populism of Obama and the increasingly dissatisfaction of any real policy changes.

Romney equally has a pivotal problem. Romney cast himself as the "moderate" among the other primary contenders, just as much as Rep. Ron Paul (R-TX) claims. However, as many Republicans saw, through the primary season, that Romney was not clearly the choice--which could and probably will damage his chances among Republican voters in November. Romney--and equally McCain--are what some people call in the Republican Party a 'Liberal Republican.' These types tend to have more left-than-center views as an Moderate-Leaning Republican who identifies more so with the GOP on more than three policy issues, 'Liberal Republicans' tend to voice their alignment with the GOP in only one or two policy areas: usually foreign and economic policy. Romney, thus, has a deep uphill battle among Republican voters because their initial support was split between him and Rick Santorum, a more social and fiscal Republican. This split in votes will cost Romney a lot of support from the Republican base. This split of support coupled with his "flip-flop" policy decisions will definitely leave him attempting a balance act in the Convention to rally support and his decision of the Vice-President. Here, his Vice President could help him in his bid for the presidency.

In conclusion, the reality is simple. Each side has a deafening blow to both campaigns that will hinder their chances. Obama has an increasingly troubled approval rate in the midst of economic turbulence and erosion of some of his supporters from within Congress over his attacks on the free market policies. Romney has a plethora of problems that will largely be decided on his ability to pick a Vice Presidential candidate to calm those voters who nominally did not vote for him or refuse to vote for the 'Liberal Republican' facade. The predictions from polling data a clear in one aspect: this election will come down to the votes of the few. The 2012 election is not at this point decidable, and because of that we call it a toss-up in the Presidential election.Any one of them can win, they are equally on the same ground politically and realistically.