Monday, March 30, 2015

Why I kind of wish Mitt Romney had run in 2016

Much to the delight of Americans everywhere—both Democrat and Republican—the door is firmly closed on a Mitt Romney candidacy for president in 2016. After briefly flirting with a third bid for our nation’s highest office, Governor Romney stated unequivocally at the end of January that he would sit this one out. So, you are probably asking, why am I just now talking about this? Well, it’s simply because (believe it or not) I actually think there may have been one particularly beneficial impact of a Romney candidacy on the outcome of the 2016 Republican primary—namely, he could have kept a certain former governor of Florida from winning.

Before I get too far into the weeds here, I’d like to conduct a quick empirical analysis—something I don’t think I do often enough on this blog. In order to credibly complain about a possible Bush triumph in the 2016 GOP primary, let me first make the case that such an outcome is indeed probable. I’d like to compare Gov. Bush’s current polling numbers amid the (rather crowded) GOP presidential field with those of Gov. Romney at the same point out from 2012. Below is a chart of the results of every poll tracking the support for various potential Republican presidential contenders from March 2010 to March 2011. (Results are courtesy of RealClearPolitics.) Many of these polls included other candidates besides the ones listed, such as Michele Bachmann and Herman Cain, but I chose to include only the four highest-polling candidates in order to keep the graph from getting too messy.

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You’ll notice that this is a pretty straightforward graph. Romney’s level of support remains largely static throughout, hovering between 15 and 25 percent after an initial drop-off. He remains consistently ahead of his closest competitor, Newt Gingrich, by a margin of about 5-10 points for the duration of that time. Both Gingrich’s and Romney’s numbers drop off again towards the end, but that is mostly due to the emergence of Rick Santorum as a credible opponent, as well as several other people not included in the graph. As of March 29, 2011 (four years prior to the day I wrote this post), the RealClearPolitics polling average had Romney with 18.3% support, followed by Gingrich with 11.3%, Ron Paul with 7.5%, and Rick Santorum with 2.2%.

Now, let’s see how the situation on March 29, 2011 compares with that of March 29, 2015. Below is a similar graph to the previous one, this time displaying the polling for the 2016 GOP nomination. Again, I only included the top-polling candidates, which is especially necessary this time around considering how outrageously crowded 2016’s field of Republican contenders is. This graph is definitely different: rather than two dominant candidates, this graph has four. What is initially a tight three-way race between Bush, Mike Huckabee, and Rand Paul becomes more of a two-way affair as Paul and Huckabee drop off and Scott Walker rockets skyward. (It appears there is a case to be made for Ben Carson, too, at least for the moment.) As of March 15, 2014 (the latest available data at RealClear), Bush is averaging 16.6%, with Walker at an identical 16.6%, Carson at 10.6%, Huckabee at 10.2%, and Paul at 8.4%.

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But how different, really, is this situation from the one in 2012? Aside from being much closer to his nearest competitors (be it Paul last year or Walker right now), Bush maintains the same kind of steady support Romney displayed in his race for the nomination. Aside from a few outliers, his numbers hover right around 15% pretty much the whole time. His 16.6% average is numerically very close to Romney’s 18.3%, and that’s with many more contenders in the 2016 field to chip away at his support. On top of that, Bush’s numbers are on a somewhat upward trajectory over the past year, whereas Romney’s numbers actually dropped somewhat between March 2010 and March 2011. Furthermore, this year’s data is showing signs of shaping up much like the 2012 contest—namely, a series of “anti-establishment” candidates rising and falling as the “establishment” pick floats stoically on top of all the commotion. Who’s to say that Scott Walker isn’t this year’s Newt Gingrich? If Bush continues to maintain the steady level of support he has right now, he could easily translate that into an eventual win just as Romney did three years ago. Granted, I’m comparing apples to applesauce here. The fact that there are so many more candidates for the GOP nomination this time around (and such higher-tier ones, too) makes it tricky to directly compare the numbers. But I just can’t help feeling uneasy that the Jeb Bush of 2015 is running less than two points behind the Mitt Romney of 2011.

And that, my friends, is why I kind of wish Mitt Romney had decided to run for president in 2016. As a well-connected, fundraising-savvy, establishment giant, Romney could have siphoned voters, endorsements, and (most importantly) donors from Bush’s campaign. With the establishment split two ways, neither of them would have won the nomination and the nation would have been better for it. Instead, we find ourselves in a situation where a Bush/Clinton matchup in 2016 looks increasingly likely every day, and that is just downright disappointing. Worse, it’s a little bit scary. Even after all that has changed in American politics over the last decade, the fact remains that the old-guard establishment wings of both major parties still have immense power in deciding which of their cronies runs for president. But change, I suppose, only ever comes gradually. What can I say other than Rand Paul 2016? 

Monday, March 9, 2015

Why the Supreme Court won’t gut Obamacare

Last Wednesday, the Supreme Court heard oral arguments in the case of King v. Burwell, which has been described my many in the mainstream media as the greatest threat to the Affordable Care Act since, well, the last time the Supreme Court took up a case involving a central provision of the law. What differentiates this case from the last one—NFIB v. Sebelius—is that this one is a matter of statutory interpretation rather than constitutionality. Where NFIB dealt with Congress’ ability to establish an individual mandate to purchase health insurance under the Commerce Clause of the Constitution, King focuses on one particular line within the Affordable Care Act which states that people enrolling in private health plans are eligible for federal subsidies to help pay for them if they purchase them “through an exchange established by the state.”

Now, I’m not going to bore you by explaining how the ACA works in its entirety (it is a truly unwieldy law), but those of you reading this should know that these subsidies are an extremely key component of the law. Basically, in order to help achieve its dual goals of increasing the number of Americans with health insurance and ensuring that said health insurance is affordable, the ACA provides subsidies for people who are required by the law to purchase health insurance but earn between 100% and 400% of the federal poverty level. This seems straightforward enough, but the law also describes two different types of insurance exchanges. On the one hand, individual states can choose to create and run their own exchanges, which many states have done. On the other hand, if a states opts out of making its own exchange, the ACA provides a backup option wherein the federal government creates an exchange to be used in that state.

Which is where we arrive at the controversy central to King v. Burwell. Since the Affordable Care Act states that individuals are eligible for subsidies if they purchase insurance “through an exchange established by the state,” what does that mean for people who live in the 27 states that use the federally-administered exchange? The petitioners in King argue that the law clearly states that only people using state-run exchanges are eligible for the subsidies. Such a policy would have profound implications for the law, since most of the people who are eligible for subsidies wouldn’t be shopping for health insurance in the marketplace if they weren’t getting any financial help. This would shrink the pool of people buying insurance in those states and, more importantly, would discourage healthy people from purchasing plans. The resulting pool of people would be both smaller and higher-risk, causing premiums to skyrocket, which would then exacerbate the existing problem. This is what is called an insurance “death spiral.” Basically, the federal exchange would come crashing down and, with it, the Affordable Care Act.

But enough background already. After oral arguments on Wednesday, the question on everyone’s minds is, “Will the Supreme Court take advantage of this latest opportunity to destroy Obamacare?” In short, my answer is both that they shouldn’t and that they won’t. First of all, we can all assume that Justices Breyer, Ginsburg, Sotomayor, and Kagan will side with the government on this one. Contrarily, Justices Scalia, Thomas, and Alito will almost certainly side with the petitioners. That leaves perennial swing vote Justice Kennedy and my man Chief Justice Roberts. After listening to the oral arguments, I am no more certain of Chief Justice Roberts’ position than I was before. He spoke very little (aside from one witty remark toward the end) and seemed content to let the Justices sitting to his left and right do all the dirty work.

Kennedy, though, raised some very interesting points. Throughout the hearing, he spoke extensively about the questions this case raises regarding federalism and constitutionality. (Ilya Somin at The Washington Post has some great stuff to say on this.) Basically, his reasoning was that if you were to accept the petitioners’ interpretation that only state exchanges offer subsidies, then you must also accept the reality that the law intended for there to be a possibility that some states would refuse to make their own exchanges and would thereby forego the ability to offer premium subsidies. Essentially, interpreting the law that way is to read it as “set up a state exchange or the federal government will irreparably screw up the health insurance market in your state.” Kennedy and all of the liberal justices pointed out that interpreting the law this way would violate the Supreme Court’s longstanding practice of interpreting laws in such a way that they do not mess with the “usual balance” between state and federal power.

But it gets even more interesting than that. That same “exchange or die” mentality, if it were intrinsic to the law, could also represent an unconstitutional level of federal coercion of the states. At that point, the provision would fall not because of how the justices are interpreting it, but because the law as written is unconstitutional. John Daniel Davidson at The Federalist lays this out very nicely, noting that the key here is whether or not the provision in question is ambiguous. If it is written ambiguously, the justices are obliged to interpret it in a way that allows the law to function harmoniously and doesn’t upset federal-state relations. However, if the law unambiguously lays out the “exchange or die” choice, it is unconstitutional coercion on its face.

Kennedy also mentioned “Chevron deference,” which comes from the case Chevron v. Natural Resources Defense Council. Chevron deference is very relevant to the ambiguous/unambiguous distinction because it states that if a statute is ambiguous and a government agency has acted on their own interpretation of the law, the Court must defer to the agency’s interpretation unless it is unreasonable. For obvious reasons, this is really a golden ticket for the government in this case.

So, you might be wondering, why did I just use 1,000 words to explain all of this to you without giving any personal opinion? I just wanted all of you to know, like I do now, that it seems incredibly unlikely that the Supreme Court will decide that state-run Obamacare exchanges aren’t eligible for premium subsidies. There are simply too many legal roadblocks in the way—the question of ambiguity, followed by interpretation, and then deference. Even if the Court finds that the text is unambiguous in denying premium subsidies to states, they would still have to decide that such a provision is unconstitutionally coercive, which isn’t a guarantee. And then, of course, there is the simple fact that Chief Justice Roberts, for all his conservative bona fides, has already saved this law once. And, as Jeffrey Toobin at The New Yorker says, Roberts may have hinted that he could leave it up to someone else to screw with it.

Lastly, I feel the need to say that however much I may dislike this particular law, this is absolutely not the way I would want to see it go. I have a deep respect for our nation’s highest court and I am a huge admirer of our current Chief Justice. I would hate to see John Roberts and the institution he oversees lower itself in the eyes of Americans by entering the partisan fray over healthcare reform. If Obamacare is to be altered or repealed, such a thing should be done by Congress, where the American people have at least somewhat of a say in what goes on. And based on the decision in NFIB v. Sebelius, I think the Chief Justice agrees with me. Let’s hope he hasn’t changed his mind. 

Why do we do this to ourselves?

Why do we do this to ourselves?