Sunday, June 14, 2015

Pure Politics

(Sorry, I can't help myself!)
Politicians in Robes:  King v. Burwell
Sometime very soon, the Supreme Court is going to rule on this case, which concerns the use of Federal money to subsidize health care insurance payments (for low-income individuals) under the Affordable Care Act in states which have not set up health insurance exchanges, but are instead having its residents sign up through the national exchange.  At issue is a sentence in the law which authorizes the funding for the states that have exchanges--it doesn't specifically authorize the funding for those that don't.

The plaintiffs have found four people willing to go on record as saying that this use of their US tax dollars is somehow causing them harm--if there is no harm, there is no case, regardless of what the law did or didn't say.  The opponents of Obamacare see this as a last-ditch effort to stop the law--which they have not been able to achieve legislatively--as without the aid to these states' residents (only 16 states have set up exchanges, if I remember correctly), the costs for the Federally-run exchanges will be prohibitively expensive, the number of uninsured will rise again, and the whole cart comes off its wheels.

Nonsense, the proponents of the law argue:  the intent of the law to provide support for low-income individuals' insurance throughout the country is clear, as indicated, for example, by the funding cost estimates, etc.  Any damage to a few people--and the viability of the claim for damages by the four plaintiffs has been challenged quite strongly--is far outweighed by the damage millions would suffer if this aspect of the law is overturned.

My feeling is that, unfortunately, the Obamacare proponents' arguments for the legislative intent (something the Supreme Court does legitimately consider, besides the letter of the law) may be vulnerable.  The intent was that every state would set up its own exchange. That intent has been frustrated by states with Republican majorities which refused to do so--against the interests of their own citizens, and against the principles of states' rights which the whole state exchange concept recognized--entirely to try to frustrate the implementation of the law.

At the end of the day, it comes down to the interpretations of the nine members, and as I have argued before, it's really about their political views.  There are four members who will support the Administration/Democratic view (Ginsburg, Breyer, Kagan, and Sotomayor); three who will definitely oppose it, because they oppose anything coming from a liberal point of view (Scalia, Thomas, and Alito).  So, it's really down to the decision of Roberts and of Kennedy, two judges nominated by Republicans who are the swing votes on the Court.

Kennedy is always unpredictable; his one consistent philosophy seems to be to preserve individual liberty.  I feel that he will be swayed by the argument that the plaintiffs represent a class of people to whom the law causes some harm, and he will vote for their side.  Roberts generally votes with the three arch-conservatives, but he went against them in the first big Obamacare case, with a tricky decision that the mandate to get health insurance required in the law was in fact a tax, and therefore within the powers of the Federal government to legislate.  My guess is that he will come out with another tricky decision, finding that the plaintiffs' claim to damage is negligible, though the law's application (subsidized funding for low-income individuals in states without exchange) is not supported.

This would prolong the uncertainty and the political debate, probably the best outcome the Republicans could hope for (actually knocking down the law on the spot would cause them a big, big legislative/political problem).   I could see a ruling that says, in order to prevent chaos, that states and the US government have two years to fix the problem: either the states set up exchanges, or the law should be changed to explicitly fund subsidies on the Federal exchange.  (The latter, the Republicans have sworn to oppose.)  Because the Republicans have the majority in both houses of Congress, then, the burden would be on the states:  put up an exchange, or suffer the consequences.

The Trade Deal Fiasco
Friday's showdown votes in the House on the trade bill (fast-track authority for the Trans-Pacific Partnership treaty which had been negotiated with Japan, several Southeast Asian countries, Australia, Canada, and Mexico--for the latter two, it was an update of the NAFTA treaty of the '90's--and for an eventual similar bill being negotiated with Europe) produced a mixed result:  the House narrowly passed the bill, already approved in the Senate.  This will not lead to the simple up-or-down vote on the trade bills which the legislation suggests, though:  in order to get the measure through the Senate, the President agreed to some separate legislation to provide assistance to those displaced from their jobs as a result of the trade bill, and that legislation needed to be approved as well, in order for the package to go to the President for his signature (I am intentionally not using the names of the bills, or the acronyms used for them, to avoid confusion).

This trade assistance bill, which in principle the Democrats strongly support, provided the opportunity for legislative sleight-of-hand for the Democrats in the House.  With Minority Leader Nancy Pelosi providing political cover, they switched en masse against the President's wishes, and against their party's expressed intent, and voted down the trade assistance (the Republicans were generally against the assistance, so the margin of defeat was overwhelming).

This was a defeat for almost all involved:  clearly a monstrous setback for President Obama, who is now confirmed, legislatively, to be a lame duck:  the majority of the Democrats defied him and his last-minute appeal for their votes, I would say in a particularly spiteful way.  The Republican leadership did not succeed:  their intent was to support the trade bill and get it passed. Big business wanted the bill, and now it is stalled.  The Democratic party was split between the pro-trade bill and anti-trade bill groups, and it really needs to get its act together.

The margin of defeat for the trade assistance was so strong, and the majority for the fast-track authority so narrow, I strongly doubt the bill is going anywhere in this Congress, though President Obama may try again.  It really looks like the proposed trade bill will have to go back to the drawing board, and it will probably end up being the problem of the next Administration (as I recently predicted).   Some progressive groups which opposed the bill crowed over their victory, though was more circumspect, as the bill is not dead, only stuck.

I really see only three possible claimants to victory in this impasse:  1) protectionists who are against all international trade bills; 2) those who do not want to give the Executive the authority to negotiate trade bills (which is tantamount to #1, as Congress would never be able to legislate a trade bill and negotiate with other countries on it); and 3) Hillary Clinton, who was able to dodge the issue of the current votes.  She limited herself to speaking in favor of a "good trade bill" and never committed herself as to whether this one, the details of which have not been revealed, met her criteria.  I suspect she was in agreement with Nancy Pelosi, who wanted to slow down the process and get the bill renegotiated in some areas, such as job protection, environmental protections, and labor standards, all of which sounds good but will be hard to sell to our prospective trade partners.  China, which had some interest in the course of the negotiations but was not a party to them, is no doubt highly amused by the American incompetence.

Going International:  Turkey
Very big news this week from the secular, Islamic-majority democracy, and its parliamentary elections. President Erdogan, head of the Islamic party which had a majority in parliament, called the elections seeking a three-fifths majority to pass constitutional amendments which would increase his powers. Instead, the voters chose to go the other way:  his party lost its majority, above all because the Kurdish minority in Turkey rallied its forces and gained enough support (10%) to gain representation in Parliament.  Now Erdogan will need to build a coalition with parties that can align with his political direction but will not acquiesce in his self-aggrandisement:  he seems to have peaked in his power, which I would say is good for the future of the country and for its neighbors and allies.

One issue that came up in the final days of the campaign was reporting by Turkish journalists which showed heavy arms being sent by the Turkish military to Sunni forces in Syria (with which Turkey has a very long, troubled border).  Turkey is not supposed to be doing this:  much as they would want to support an anti-ISIS, anti-Assad, non-Kurdish military force in Syria, the viability of any such force is doubtful, and weapons provided to them seem to end up with ISIS.  When push comes to shove, the anti-Assad Sunnis seem more likely to cooperate with one another, even with ISIS. Anyway, the journalists who broke the story were arrested and threatened with treason--this limitation on the freedom of the press, more than the question of helping the Sunni forces, may have weighed on voters' minds.

Since the election, Kurdish forces have attacked an ISIS-held town in northern Syria:  Erdogan and Turkey are offering safe haven to the refugees from this inferno, which is something with which it is hard to argue on humanitarian grounds. I am encouraged by the confidence Turkish voters have shown in multiparty democracy, but I have to credit Erdogan for bringing considerable success and progress to Turkey, particularly on the economic front, and I have to acknowledge the difficult situation the Turks find themselves next to in Syria.

Still International:  Hong Kong
I saw an article today about "thousands" of persons protesting to try to stop the imminent vote in the Hong Kong Legislative Council (partly elected, much of it appointed) to ratify the Chinese government's wishes for the direct election of the former colony's Chief Executive.  Direct election, yes, but from a selection of candidates approved by Beijing.  The fact that the report referred to "thousands", and not "hundreds of thousands, accompanied by mass civil disobedience" suggests to me that this will not stop the rubber-stamp LegCo from acceding to Beijing's wishes.  The elections will be Iran-style.

I should think that Hong Kong is close to an inflection point, moving to a resolution of various opposing forces:  the increasingly democratic tendencies of the young people, who have grown up with some rights of self-expression and liberty, the interests of the big money, which want to preserve the benefits of close association with Beijing, and (strongest, in terms of power) the centripetal force of Beijing, which will want to maintain Hong Kong as a trading port (though maybe not one of central importance) but keep it on a leash that it will eventually want to draw unto itself.  The most likely result will always be for Beijing to prevail, but one cannot discount possible success for "people power" and the influence of global opinion, on an area that is not yet firmly under the Chinese thumb.  I do feel that the crisis came and went last fall, and all were relieved that the war of nerves was resolved without bloodshed;  even if this political battle, for which the denouement will come this week, was not resolved in the favor of Hong Kong's democrats, they at least had their voices heard clearly, both in China and in the world beyond.

Are We Ready Yet? 
I guess we better be, because, ready or not, the 2016 election is barreling forth.  Hillary Clinton waited as long as she could to confirm her intention to run, then kept as low a profile as possible for a couple of months; now she has done her big public launching speech, which apparently went very well for her.  Jeb Bush signalled early, but has resisted his formal announcement, trying to use the rules to line up as much unofficial money as possible; now his day is due.  The Republican candidates who have been sitting on the fence, like John Kasich and Chris Christie, have found their fence is receding from the battlefront, and now they are already late.  Even Donald Trump is finding that he now needs to announce, or give up his charade.  The first Republican debates in New Hmpshire are only about two months away.

There is also the fact, as suggested above, that it is apparent that nothing will be happening domestically to set the scene that has not already happened.  The economy is continuing to recover, with growth in jobs, though they are low-paying; the Fed strategy--a couple of small increases in rates, to move them off zero and show that they can change, but nothing too dramatic--is clear; legislative initiatives are all dead in the water, and the Supreme Court continues to get older, more out of touch, and more of an issue for our decision on the next President.

Jeb's  recent trip abroad has helped distinguish him from the mass of other candidates, as he demonstrated familiarity with the affairs of other countries, something that, in practice, is very important for the actual tasks a President must do.  He probably also helped distinguish himself from his relatively ill-informed brother, Obama's predecessor.  Whether this will help him with the food fight coming soon among all his inexperienced opponents who are fixated on providing red-meat issues for the Republican base is not clear, however; the pundits are fond of pointing out how he is not running away with the nomination, either in terms of fundraising or in the polls.

Right now, according to Real Clear Politics average of polls (as of June 2), Bush, Scott Walker and Marco Rubio are in the top group with about 10% each, then there's a group in the 7-9% range of Ben Carson, Mike Huckabee, Ron Paul, and Ted Cruz.  If we skip Chris Christie at 4.8% (who I still don't believe will run), Donald Trump at 4% heads the back of the pack (with seven others registering 1% or more, and by my count, about 14% selecting none of the above or don't know).

I am tempted to make a set of fearless predictions and call the Republican nomination (and the Democratic one, of course), the VP selections, the independent candidates who will run, the popular vote and electoral vote margin--they are all clear to me.  I have thought better of it, though, and will wait until the Florida primary next March, which should remove any doubt about who will end up being the Republicans' nominee.


Chin Shih Tang said...

Wow, have to comment:
Hong Kong LegCo rejected the proposal (less than the 2/3 majority required). The result will probably be no vote by universal suffrage on the Chief Executive, but democracy activists preferred that outcome to a sham vote.

Supreme court by 6-3 vote upheld the government in King v. Burwell. Funds can be applied to Federal exchanges for subsidies, not just to state exchanges. Both Roberts and Kennedy came through to back the law's implementation. Scalia took it badly--too bad for him!

Trade legislation got approved after all. Fast track (and assistance for displaced workers) will go to Obama for signature. The ultimate bill will need a simple majority to be approved (not subject to filibuster?)

I guess I have to take it back about Obama being made into a lame duck!

Chin Shih Tang said...

And again, today: Supreme court rules 5-4 that states must allow gay marriage to happen. This movement became a landslide that eventually caught up Justice Kennedy on the side of individual rights (and against states' rights, where he had been before).
One person I must name above all others who led this battle and was ultimately victorious: Evan Wolfson, formerly head of Lambda Legal Defense Fund and more recently the head of Freedom to Marry. Congratulations to Evan, and best wishes to all those who will benefit by this decision (I can think of no one who will suffer, and this, in part made it all possible.)

As before, Justice Scalia took defeat badly: Tough noogies, Antonin! I wish you would put YOUR head in a bag, but that would require you to take it out of your ass!