Meals From The Marketplace

            Ever since Richard Nixon found a way for conservatives to win the presidency, Democrats have struggled to win the nation’s highest office.  (Nixon’s trick, for those who aren’t up on their history, was to unmask the national Democratic Party to the South, thereby forever giving the Republicans a solid electoral base – the southern states and the country’s heartland – in every presidential election.)

            It took the Watergate scandal and a middle of the road, southern candidate (Jimmy Carter) to narrowly squeak out a win in 1976.  It took a master politician (Bill Clinton), also from a southern state, a failing U.S. economy, a clueless incumbent (George H.W. Bush) and a third-party candidate (Ross Perot) to win by a plurality vote in 1992.  It took a roaring economy, a very weak Republican opponent (Bob Dole), and another Perot candidacy for Clinton to win re-election in 1996. 

            And it took a masterfully captivating, if enigmatic, campaign in the face of an economy in free-fall and a country that was fed up with another Bush (George W.) and everything he stood for (as represented by John McCain) to elect Barack Obama in 2008.

            None of those favorable conditions are likely to exist a year from now, when the country’s electorate settles in and decides whom it wants to lead it for the next four years.  Instead, the Democrats are facing the worst possible scenario, to wit: an economy that has not recovered and may feel like it is still in a recession, a fervent effort to regain the White House by the Republicans, led by a rabid base that will rally for any candidate not named Romney, and an incumbent president who has managed to alienate his liberal base, incur the hatred of the hard-core conservative opposition, and disenchant the critical middle third of the electorate.

            Barack Obama’s failure as the president of the country that gave him a decisive win in 2008 can best be described as colossal.  Now thirty-one months into his presidency, he still hasn’t figured out how to lead effectively.  And the country is catching on to that fact, after an overly long honeymoon period that saw his personal approval ratings consistently above 50%.

            The honeymoon is over.  Obama’s latest approval rating has dipped into the George W. Bush-like sub-40% range.  And with the leader of the loyal opposition crowing, after the deal the president accepted on the debt ceiling, that he “got 98%” of what he wanted, Obama’s leadership abilities would probably get an even lower rating.

            Democrats should be starting to wonder if just casting a protest vote in next year’s primaries is sending enough of a message.  Instead, they should be looking for a new candidate. 

            They should be looking for a candidate who can take the fight to the new ultra-right Republican Party.  They should be looking for a candidate who can explain that stimulus is not a dirty word and that the only way to get the economy straightened out is to increase government spending.  They should be looking for a candidate who has the courage to get the country out of the military quagmires it has been in since 2001.  They should be looking for a firebrand liberal who can make liberalism fashionable again.

            Barack Obama is not that candidate.  Whatever else might be said of him, Barack Obama is not a liberal.  He might act like a liberal in the way he negotiates (assuming that liberals are inherently terrible negotiators), but he isn’t a liberal in his heart of hearts, in his soul, in his core beliefs.

            The record speaks for itself.  He pushes for a health care bill that rewards corporate interests at the expense of the middle class.  He champions a financial regulation bill that keeps the vested interests of Wall Street in power.  He enhances military forces to prosecute ill-founded and poorly fought wars.  He permits human rights abuses (Guantanamo, foreign renditions, military tribunals, drone missile attacks) to continue unabated.  He extends tax cuts for the wealthiest Americans while failing to fight for extended unemployment benefits for the poorest.  He authorizes off-shore drilling after a massive oil spill and doesn’t even push for tighter regulation of the industry in the process.

            This is not the record of a liberal. 

            But more to the point, Obama doesn’t sound like a liberal when he speaks.  Instead, he sounds like a politician.  When his health care bill finally became law, instead of explaining what the bill would mean for average Americans, he derided the bill’s opponents by saying, “I woke up this morning, and, you know what, the sky wasn’t falling.”  That line passes for Obama humor, but it also conveniently skirts the real arguments Republicans made against the bill. 

            In announcing each of his military moves, instead of justifying his decisions with carefully explained reasons, let alone going to Congress to seek formal approval, he has waved the flag and saluted the troops, thereby rallying public support in the cheapest and most obvious of political ploys. 

            He doesn’t fight for liberal causes.  In fact, he hardly pays lip service to them.  Instead, he strives constantly to appear “reasonable,” as if acting reasonable leads to reasonable results when the opposition is adamantly unreasonable.  A true liberal would never have allowed the debt ceiling issue to become crisis politics and would certainly never have conceded what Obama conceded to get the debt ceiling raised.

            Nor would a true liberal have allowed the Bush tax cuts on the wealthiest Americans to continue while the opposition made the national debt seem like a crisis that had to be addressed immediately.  No wonder Speaker Boehner proudly proclaimed that he got 98% of what he wanted.  No liberal would have allowed that result, not with the country’s middle and working classes struggling to get by.

            Barack Obama would be a good third party candidate.  He’d be the guy in the middle whom a few well-meaning idealists would vote for because he sounded so reasonable. 

            But he isn’t a true Democrat.  And, as he also looks increasingly like another un-electable Democrat, his party ought to wise up and look for someone to take his place as its presidential candidate in 2012.

                As President Obama starts to sound a little more like an incumbent who will wage an aggressive campaign for re-election, the future of his principal legislative achievement thus far in his presidency is becoming a legitimate, if not yet fully appreciated, issue.

                I am referring, of course, to the 2010 Patient Protection and Affordable Care Act, disparagingly referred to as “Obamacare” by its opponents.  The massive legislation, which was well over a year in the making, has since been heralded (or derided, depending on the speaker) as the major reform accomplishment in Obama’s first term.  As various parts of the law are being implemented (the full impact of it will not take effect until 2014), the Republican Party is committed to repealing it as soon as possible.

                But that task may become unnecessary.

                The law presents a legitimate constitutional issue, one that has already received the judgment of six lower courts and that will very likely be accepted for consideration by the U.S. Supreme Court in the next term (which begins this October).  If that timetable holds, the Court will issue its decision in June of 2012, just before the political parties’ presidential nominating conventions.  And, unless the Court finds a way to duck the big issue the case will present, its decision will resolve the debate on the law’s constitutionality.

                And so, courtesy of the nation’s highest Court, “Obamacare” could become an even bigger issue in next year’s presidential campaign than many of us currently realize.

                The constitutional issue the new law presents involves what most legal experts agree would be a question never previously resolved by the Court.  In a nutshell, here is what it entails and how it arises from the Act.

                A critical component of the new law is the mandate that requires all Americans to obtain health care insurance from private industry providers.  The mandate is essential because without the revenue generated by the healthy portion of the population (principally the young who currently go without coverage), insurance companies would not be able to justify the added cost of coverage imposed on them by the law. 

                So, in essence, the mandate removes a choice that many Americans currently make –  risking substantial medical bills by being uninsured – so that those currently deemed uninsurable (e.g., those with pre-existing conditions) can be covered.

                The removal of that option/choice is what presents the constitutional issue.  The provision is justified by its proponents as an exercise of the Commerce Clause authority allowed to Congress in the Constitution.  Opponents argue that the Commerce Clause authority doesn’t allow Congress to compel economic activity, only to restrict or regulate it.

                The Commerce Clause of the Constitution received little attention for the first 150 or so years of the country’s existence.  During those years, the Clause was presumed to represent the ability of Congress to regulate the trading of goods across state lines, commerce between other nations and the individual states, and little more. 

                The Clause is one of the many “enumerated powers” given to Congress in Article I (Section 8, Clause 3, to be specific).  The document also specifically states that any and all powers not so enumerated are not permitted to be exercised by Congress. 

                With the expansion of government programs and regulation that the New Deal fostered (to combat the Great Depression in the 1930s), the Supreme Court adjusted its interpretation of the clause (in conjunction with the overarching “Necessary and Proper Clause” that covers all the enumerated powers in Article 8).  The adjustment rendered constitutional all laws that dealt with any activity that might have an effect on (or result from) interstate commerce.

                That interpretation was affirmed in litigation over the 1964 Civil Rights Act, which prohibited discrimination in privately-owned businesses that had previously been free to deny service to minorities (principally African-Americans and others of color).  Thus, the clause had become a vehicle for social change, instead of a means to overcome the incompetence of the original Articles of Incorporation, which had almost sunk the new republic before it had even set sail.

                And so things have remained until the passage of this new effort to change the way America deals with health care for its citizens.  The issue regarding the Act’s constitutionality goes beyond the Court’s prior interpretation of the Commerce Clause because, instead of denying, restricting or regulating private activity, the Act compels such activity.  And that difference is either insignificant or a deal breaker.

                It is insignificant if the emphasis on the interpretation of the clause is on whether the activity has an effect on interstate commerce.  If that interpretation is adopted by the Court, the Act’s requirement that all Americans purchase health insurance would be constitutional, because those purchases would definitely have an effect on interstate commerce (assuming health care itself is regarded as interstate commerce, as it almost surely would be).

                But if the emphasis on the interpretation of the clause is instead on activity that has an effect on interstate commerce, then the Act could easily be found to be unconstitutional.  Under that interpretation, the lack of activity (i.e., not choosing to purchase health care insurance) would not be covered by the Commerce Clause and the mandate in the Act would fail constitutional muster.

                Six courts have already passed judgment on this issue.  Four are federal District Courts, which are the trial courts in the federal system, and two are Circuit Courts of Appeal, which are the first level of appeal for review of District Court rulings.  Of the ten judges to consider the issue, one appointee of President George W. Bush broke ranks in finding the mandate provision constitutional and one appointee of Bill Clinton found the mandate unconstitutional.  The others all followed the positions of their respective parties.  (Two District Court decisions found the law unconstitutional; two found it constitutional, and the two Circuit Courts split, one finding it constitutional, one finding it unconstitutional.)

                So, what will the nine-member Supreme Court do?  The answer probably hinges on Associate Justice Anthony Kennedy (the other eight, four on each side of the issue, being reasonably predictable).  And, if past decisions (e.g., Bush v. Gore, which awarded the 2000 presidential election to Mr. Bush, and Citizens United, which declared that corporations are people for purposes of free speech) are a guide, his vote is more likely to fall with the Scalia-Thomas-Roberts-Alito bloc than with the Court’s moderates.

                Will the public’s interest thereby be served?

                The answer to that question could be the source of a major debate in next year’s presidential campaign.

            In the lead column in last Sunday’s New York Times “Review” section, Professor Drew Westen of Emory University asked, “What Happened to Obama?”  But the lengthy essay did far more than raise a question about the current president.  It indicted Obama’s leadership qualities and his record as president.

            And, while it didn’t call for a challenge from the left to his re-election, that possibility is what many liberals may soon be contemplating, if they aren’t already.  With 30 months of his presidency now in the books, it is clear that this man is not the champion of liberal causes many thought (or at least hoped) he would be.  But beyond concerns about his ideological views, he represents the worst of two unacceptable qualities in the leader the country needs at this time in its history: He is ineffective and indecisive.

            Ineffectively indecisive may sound harsh, but it isn’t inaccurate.  Obama has been conciliatory when he needed to be firm and irresolute when he needed to be committed.  In his speeches and press conferences, he has sounded far more like a mediator than a leader, and in his actions, he has been far more willing to meet demands than to make them.

            The result on issue after issue has been acquiescence to the growing militancy of the far right (as represented by the Tea Party, which, for all intents and purposes, is the current Republican Party).  And his acquiescence to that militancy has now adversely affected the nation’s creditworthiness, stalled the struggling economic recovery, and created a strong likelihood of a “double-dip” recession.

            Obama’s supporters make excuses that are increasingly unconvincing.  The claim that the Tea Party makes Obama’s job much tougher is only true to the extent that any weak leader would have a tough time with a militant opposition.  But let’s remember how the Tea Party movement gained traction in the first place.  It was in response to Obama’s early legislative initiatives, in particular, his stimulus bill, his efforts to reform the nation’s health care system, and his attempt to regulate the financial industry.

            In each instance, Obama’s measures were either ill-defined (health care and the initial financial regulatory plan) or inadequate for the problem at hand (the stimulus bill and the ultimate financial regulatory bill).  And in each instance, Obama himself did precious little to lead the fight for what he wanted. 

            Instead, he allowed Congress to come up with the bills, acting as if he were just a sideline observer instead of the single person in our system who can identify the needs of the country with a voice of unimpeachable authority.  George W. Bush, of all people, proved this point time and again as he pushed vigorously for his tax cuts, his wars and his assaults on individual liberty. 

            Bush got a half million fewer popular votes than his opponent in 2000 (only winning the election when the Supreme Court awarded him Florida’s Electoral College votes), but on taking office he immediately acted as if he secured a mandate in pushing a highly partisan agenda.  Obama did win a landslide victory in both the popular vote and the Electoral College, but he did nothing more than lay out a wish list of important programs he wanted to pursue, never claiming a mandate or, more importantly, acting as if he had one. 

            But why else was he elected so handily after a campaign that stressed the need for “change”?  If you run for the office of president as a “change candidate,” the assumption is that you are going to push for real change when you get elected.  But on taking office Obama only indicated vaguely and generally what the country needed: health care reform, energy independence, better education (the three pillars of his first Congressional address).  The specifics were never forthcoming, and the second and third pillars still haven’t been addressed.

            The attacks from the right began immediately, and while some of it (the “birther” claims, in particular) smacked of a racist backlash, most of it was just politics, aggressive politics, to be sure, but just politics nonetheless.

            In response, Obama showed that when it comes to political fights, he isn’t a fighter.  Instead of fighting back, he tried to placate and conciliate, neither approach especially effective when the other side just wants to attack and diminish you.  And, over time, the Republicans have succeeded in doing just that. 

            But Obama’s real failing has been in the area that was thought to be one of his strengths, to wit: he has not communicated effectively.  He hasn’t used his “bully pulpit” to educate or to explain the reasons for his actions and for the proposals and programs he sought to implement.  Thus, the health care bill was a year in the making and Obama still has not articulated the reason it is so important to a point of meaningful understanding.

            Ironically, in dealing with the public, Obama has been far too political.  His speeches, instead of educating, seek to simplify the calculus of a decision to second-grade arithmetic.  He acts as if the complexities of policy judgments are beyond the intellectual grasp of the populace, thereby playing right into the hands of the opposition, which is much better at simplifying policy issues than he will ever be.

            Ultimately, a president must be judged by what has happened on his watch relative to what he said would happen in his campaign.  And this president has not brought about meaningful “change,” either in the policy judgments he has made or in the way he has run his presidency.  Moreover, he has not solved the main problem he confronted when he took office, which was “the economy, stupid.” 

            Instead, he has attempted half solutions either because he thought they’d be enough (the stimulus bill) or because he didn’t think he could get anything more (the debt ceiling “compromise”).  In each instance, he has been too timid, too conciliatory, too indecisive, and too “centrist.” 

            Obama’s liberal “base” may stick with him, but at this point, an alternative candidate from the left would be attractive, even if only to register a fully-merited protest.

            “Our Constitution is in actual operation.  Everything appears to promise that it will last; but in this world nothing is certain but death and taxes.”

-Benjamin Franklin (1783)

            That Franklin quote has held up for over two hundred years, but much about it may be in question now that the deal has been struck to end the debt ceiling crisis. 

            Oh, the Constitution is still in operation, albeit not necessarily in the manner that Mr. Franklin and his colleagues intended.  But whether it will last much longer is very much an open question, or at least it should be if what Congress has shown to be its “strength” in the last few months is an indication of its vitality. 

            First the elected representatives of the people made an issue of something that never had been an issue before in the history of the country and that never needed to be an issue now.  Then those same representatives appeared set on destroying the nation’s economy by seriously threatening not to extend the country’s ability to borrow the funds necessary to pay its bills.  Then, having come close enough to a self-imposed bankruptcy, they put together a “deal/framework” that will probably unravel in the months to come when the committee they select of their own to spell out the details disintegrates into another self-made crisis of partisan and ideological inflexibility.

            Such is the nature of the “great experiment” that has been the beacon for the world since the U.S. Constitution was ratified.  The will of the people is either so schizophrenic that it is close to impossible to identify clearly, or the people’s elected representatives are so poorly chosen that the government they form is a mockery of the democratic republic it is supposed to reflect.

            Think about it for a moment.  For no reason other than that a segment of one of the political parties in the country wanted to make an issue of something that never needed to be an issue, the country almost defaulted on its financial obligations.  Had it done so, the economy would have almost certainly nose-dived once again, and the country would have been as close to a Greek-like collapse as it could have come to in so short a time.

            But it’s that third part of the Franklin quote that is most problematic in 2011.  Not that death is any less certain.  It still awaits us all, only its arrival uncertain.

            But as the “starve the beast” strategy that Republicans have been pushing for three decades is more readily accepted by ever more Americans, taxes can no longer be considered an absolute certainty.

            Consider a few unassailable facts:

            In 2001, when George W. Bush assumed office, he inherited a one trillion dollar budget surplus from his predecessor, Bill Clinton.  He proceeded to cut taxes drastically.  He then started two wars and refused to mention, let alone consider, the idea of raising them to pay for those wars.

            And now, ten years later, with individual tax rates lower than they have been since World War II, and with massive budget deficits creating a mountain of federal indebtedness, taxes are deemed “off the table” in any deficit reduction negotiations.

            In the early stages of the debt ceiling crisis, President Obama spoke of the need for shared sacrifice, suggesting various methods by which the wealthiest Americans (individuals and corporations) might chip in to increase federal revenues.  He assured the nation, in a national address from the White House, that no deal would be struck unless it included revenues as well as cuts.  He even offered a three for one deal, whereby three trillion dollars in spending cuts would be “balanced” by one trillion dollars in increased revenues, the result not of increased tax rates, but of closed “loopholes” like oil and farm subsidies.

            The Congressional Republicans flatly rejected the tax part of the offer and ran with the cuts in social programs.  Obama quickly caved on his revenue demands, leaving taxes “off the table” and further enhancing the Republicans’ efforts to starve the beast by denying the government the revenues necessary to pay for the government’s bills.

            Granted, Mr. Obama is not a great negotiator.  In fact, he would be the used car salesman you’d love to buy a car from.  The conversation might go something like this:

            Obama: This car is a real beauty.  How much do you think you can pay for it?

            Buyer: Not a penny over ten grand, and I want a new car warranty included and a fresh set of tires.

            Obama: Oh, I think we can do that, but only if you pay for the tires.

            Buyer: Forget it.  I’m not paying for new tires on a car you are trying to get me to buy.

            Obama: But it will cost me to get the new tires, don’t you think you should pay something for them?

            Buyer: Hey, you’re trying to sell me the car.  Why should I pay for new tires on a car you’re trying to sell me?

            Obama: Well, would you be willing to pay for the new car warranty?

            Buyer: You just don’t get it do you.  I’m paying no more than eight grand for the car with everything I want on it.

            Obama: You said ten thousand.

            Buyer: That was before you started pushing me around on the tires and the warranty.  I’m insulted by your inflexibility, so now I’m only willing to pay eight thousand.

            Obama: Well, we really need to sell this car, so I’ll throw in a paint job if you pay the original ten thousand.

            Buyer: Eight thousand, and we’ll take the paint job.

            Obama: I’m not happy with this deal.  But we need to do it, because the car isn’t doing us any good sitting on the lot.

            Buyer: I’m not happy either, but I’ll take it.

            The moral of the story and the lesson from the resolution of the debt ceiling crisis is that taxes are an endangered species.  The only thing certain about them is that they will never go up, and the only question is when they will disappear altogether.