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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Disjunctive Politics in Action
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Friday, March 24, 2017
Disjunctive Politics in Action
Gerard N. Magliocca
If you were wondering what Jack and others meant by saying that Donald Trump could well be a "disjunctive" president, now you know. The President and his party could not move one of their main legislative priorities through even one House of Congress. Is this the result of poor leadership? Perhaps, but the deeper problem is that the Republican coalition is badly divided on many issues. The election masked those divisions to some extent, but now they are front and center.
Comments:
It's easy being the backseat driver, particularly when you don't know how to drive. This epic failure is the result of an empty ideology and utter incompetence. In some ways, I wish it would have passed and become law.
If they were strategic, they would have crafted a bill that would have been subject to a filibuster. Then, they could have not only blamed dems but screamed even more about the evils of the ACA. Arguably, they would have payed little, if any, price. Let's face it, most of them really could care less about healthcare. It's the political advantage that counts. They couldn't even do that.This epic failure, however, likely means this motley crew will become more extreme, not less, and, make no mistake, they will put something thru the endzone, however awful it will be. Stunning.
Here's a variation on Will Roger's political observation of years ago that might apply: "I am a member of a disjunctive political party, I'm a Republican." Perhaps Speaker Ryan will reread Ayn Rand's "Atlas Shrugged" to determine what he did wrong. Ryan might also take a peek at "Bonfire of the Vanities." Meantime, Democrats are proposing a toast for the failure of TrumScare to Americans: "To your health." Who will take the blame, the Narcissist or the Libertarian, or both?
BD: If you were wondering what Jack and others meant by saying that Donald Trump could well be a "disjunctive" president, now you know. The President and his party could not move one of their main legislative priorities through even one House of Congress.
Obama and the Democrats did the same thing with Obamacare after the Tea Party besieged their town halls and DC on 9/12. They rewrote that monstrosity is secret and released it 72 hours before a Christmas Eve night vote. Is this the result of poor leadership? Perhaps, but the deeper problem is that the Republican coalition is badly divided on many issues. The election masked those divisions to some extent, but now they are front and center. The division between the progressive-lite GOP establishment and the libertarian conservative GOP coalition is nothing new and was hardly hidden during the election. Trump campaigned against the GOP establishment to win the votes of the conservative and more than a few of the libertarian voters of the GOP coalition. Once in power, the progressive-lite GOP establishment offered an Obamacare-lite bill which very few in the GOP electorate liked once they learned it was actually Obamacare with tweaks. As a matter of both politics and policy, heaven knows what Trump was thinking when he aligned with the progressive-lite GOP establishment to push Obamacare-lite - both of which he just finished campaigning against. Senator Rand Paul gave Fox a good breakdown of the politics and policy here: https://www.facebook.com/SenatorRandPaul/videos/1464721213580677/?pnref=story As a matter of leadership, the master of the deal has been an utter failure. Look to LBJ and Reagan for examples of how presidents assemble bipartisan coalitions in Congress to enact their policies. Obama could not assemble a bipartisan coalition to save his life. Trump cannot even assemble a partisan majority. The Donald is no Ronald.
I think this is less about Trump, frankly, and more about Congress. Maybe you want to call it a "disjunctive Congress"?
What's going on here is that the GOP has been a party at war with itself for better than 20 years. Maybe longer. This first became apparent back in the 90's, when the Republican party unexpectedly won control of Congress. And proved not so much unable to deliver on it's long standing campaign promises, as unwilling. That was when the Republican base started to figure out that their representatives in Washington hadn't been fighting the good fight, and losing. They'd been taking dives. Campaigning on issues they didn't actually mean to deliver on, and contriving to let the Democrats prevail. Ever since then it's been war, between the party's base, and its Washington establishment. The Tea party weren't waging a war with the Democrats. They were waging a war with the Republican establishment. Trump's deplorables, a not precisely overlapping group, equally are at war with the GOP establishment. You can see this in things like the illegal immigration fight, where the GOP establishment keeps trying to float 'grand bargains', which get shot down by the base. Or the Obamacare "repeal" which was shaping up to be nothing of the sort, and went down in flames because too many Republican Representatives realized they dared not piss off their constituents by voting for it. You can see it in how the Democrats have managed to consistently confirm Justices who toe the party line, while the Republicans keep getting Souters.
Basically, it's the Establishment vs the Base, and while the Establishment needs the Base's votes and campaign labor, and so have to make a show of agreeing with them, they do NOT agree with them on policy. And do not mean to deliver what they're promising.
I'm not sure how this situation arose. Maybe some kind of Stockholm syndrome in the GOP caucus during those long years when the Democrats were firmly in control of Congress? Maybe they spent too long in Washington, and 'went native'? However it came about, the locus of the problem is in Congress, not the White house, and it amounts to this: The Republican leadership in Congress are severely out of step with their own party's voters, and are constantly trying to do things the voters won't tolerate, and refusing to accomplish what the voters want done. One side or the other is eventually going to win, but until that happens, the GOP is going to be very ineffectual on most issues.
Brett: I'm not sure how this situation arose. Maybe some kind of Stockholm syndrome in the GOP caucus during those long years when the Democrats were firmly in control of Congress? Maybe they spent too long in Washington, and 'went native'?
The GOP establishment has far more culturally in common with the Dem establishment than it does their own voters. The establishment types are generally from or quickly join the same mandarin class which runs the bureaucracy.
So, your vote is "gone native"? That's my guess, as well.
At this point, the Democrats have come to dominate the urban centers, they've become a relentlessly urban-centric party. The GOP, by default and inclination, has become the party of suburb and rural areas. But the GOP leadership, particularly at the federal level, are almost to a man happy city dwellers. Culturally, they're Democrats. The culture clash between party Establishment and Base has become a policy clash, as well.
As a matter of leadership, the master of the deal has been an utter failure. Look to LBJ and Reagan for examples of how presidents assemble bipartisan coalitions in Congress to enact their policies.
Things have changed. The white South is now solidly Republican, there's computerized Gerrymandering, and there's a lot more self-sorting of liberals and conservatives. We're much more polarized. And that makes it difficult to assemble bipartisan coalitions. Conservatives obscured this during the Obama administration for rhetorical reasons ("he didn't even try to talk to us!"). But they would have been tremendously upset had Republicans made deals with Obama, and they don't want Trump making deals with Democrats now either. That's the world we live in now. Given that fact, we should eliminate the filibuster and move towards a parliamentary system (which is what countries who weren't founded by slaveholders moved to long ago). Just have the President's party run on an agenda and then move it through Congress. But you're never going to see bipartisan coalitions like the ones that passed the major LBJ agenda items ever again.
"The President and his party could not move one of their main legislative priorities through even one House of Congress.
Obama and the Democrats did the same thing with Obamacare after the Tea Party besieged their town halls and DC on 9/12. They rewrote that monstrosity is secret and released it 72 hours before a Christmas Eve night vote." One difference is that Obama got his through. Actually, that's the salient difference Gerald pointed to in the first place. " Once in power, the progressive-lite GOP establishment offered an Obamacare-lite bill " Ayn's own Ryan is the progressive wing of the GOP? Wow, that's telling.
This 'betrayed by our Establishment' is nonsense. You don't get much more establishment than Trump's cabinet. The GOP 'establishment' that extreme partisans run down are just party leaders that realize that what extreme partisans want them to do would make the GOP a minority party.
Mr W: One difference is that Obama got his through. Actually, that's the salient difference Gerald pointed to in the first place.
We are in mid March. When we get to Christmas Eve, you can do your land speed comparisons with Obamacare. If I were the GOP, I would do tax and regulatory reform this year and wait for the remaining insurers to bail from the 2018 Obamacare exchanges this fall. We obviously need a crisis to move the GOP establishment.
The nihilism was very apparent, but the bill still had a good chance of passing. The polls showed the bill was a real stinker. Analysis by the CBO showed it would have been detrimental to the lives of millions (but, of course, how can one put a price tag on freedom).
Of course, both Trump and Ryan blamed Obama. You really can't make this stuff up. It is symbolic of the long decay of a political party. Hopefully, that decay will not bring us all down.
The Republicans are divided and the Congress/executive have split purposes here etc. but that was present when the PPACA was passed too. It was not "rammed down" anyone's throats. It took an extended period of time, a lot of work, including the POTUS playing an important role in the process. So, do think part of this is a result of the flaws of the Republicans' approach, who is in the White House, their desire to do it so quickly etc. It hurt too that the PPACA was demonized so much, so a more long term approach in killing parts of it was seen as simply bad form.
I would not at this early point make some final conclusions. As to what 'never' will happen again, when it happened in the lifetime of more than one person here, I also do not wish to make any conclusions. Things ebb/flow. What will happen ten, twenty years from now particularly in that regard is far from clear. It is quite possible, e.g., some sort of re-alignment of the parties will occur. etc.
Trump seems to be prepared to take a "mulligan" once again. [Link: Winter White House + Doral.] Query: Has Trump lost his "tweet" spot?
MW, I think Trump has been trying to straddle the base and the establishment. But he's going to find that isn't really possible.
"But the GOP leadership, particularly at the federal level, are almost to a man happy city dwellers."
Trump is a man who was born with a silver spoon in his life and has for his life lived not just in a city, but the uber-city.
"Straddle"? Imagine Gene Autry singing: "I'm back in the straddle agains ,,,, " I understand sales of "The Art of the Deal" are spiking since Trump's inauguration that may lead to creating new jobs: more standup comedians who'll search through this BS for comparative material with Trump's non-performance as President. "Just who is this guy 'Art'?" Imagine Trump and Ryan, hand in hand, singing "Just a 'Closer' walk with thee." Or has Brett been doing "standup" here all along?
BD: Once in power, the progressive-lite GOP establishment offered an Obamacare-lite bill
Mr. W: Ayn's own Ryan is the progressive wing of the GOP? Wow, that's telling. Let that be a lesson to you. Judge people by what they do, not by what the Democrat media writes about them. The Obamacare-lite bill is closer the the German Socialist party than anything Ayn Rand would find acceptable.
The lesson should be yours, and it's similar to the one people who say 'Nixon was a progressive' Ideological position is relative. Nixon signed environmental and other legislation that were passed with veto proof majorities. He was a politician in a relatively liberal time, he offered the most politically viable option for conservatives at the time. Remember Ryan is Speaker of the House and the Freedom Caucus numbers a mere 30.
Mr. W:
A president is what he signs and orders. Nixon was the most progressive post-WWII president until Obama.
Nixon was the most successful conservative politician of his day.
Likewise, if Ryan offered a bill closer to Ayn Rand he would get about 30 votes for it in the House.
Mr. W: Nixon was the most successful conservative politician of his day.
:::chuckle::: What did Nixon sign or order which was "conservative?" Likewise, if Ryan offered a bill closer to Ayn Rand he would get about 30 votes for it in the House. If the GOP leadership offered a straight up repeal of Obamacare, how would any Republican who campaigned and was elected on that promise multiple times decline to vote for it? What would they tell their constituents? I was lying to you and really like the government running your health insurance. This is why the progressive-lite GOP establishment did not simply offer another repeal bill like the ones they sent to the Democrat Senate and then to Obama.
There's a reason why conservatives voted for Nixon. The 'law and order' candidate, the 'honorable peace' candidate, the 'silent majority' and 'southern strategy' candidate was Buckley's quintessential 'most right, viable candidate that could win' at the time.
The two biggest vote getters in the recent presidential election promised 1. To keep Obamacare, but with some tweaks and 2. To repeal it but replace it with something that kept all the 'good' features. There was a candidate that called for flat repeal and embrace of non government, free market approach, Johnson who got a negligible amount of the vote. No wonder GOP House members aren't rushing in that direction.
"non government, free market approach"
now on ME TV, The Donna Reed Show, with Dr. Alex Stone. It was not truly all non-government, free market then, it won't be now. Not surprising many didn't vote for him. Anyway, if you are going to "repeal and replace with all the good features," why would you rely on the same people who called the whole thing the spawn of the devil? It's like trusting priests to repeal and retain the good things of same sex marriage or something. OTOH, yes, some people have this fictional view of the presidency, included in the label "Obamacare," which was a result of the Senate (with some presidential involvement) crafting a bill and the House tinkering with it some. Which was not Medicare for all either. Thus, both halves of the word is misleading. More so some fictional view of the person in the White House now and his great deal-making abilities, perhaps helped by the fact he has an attractive wife.* === * Someone cited this as a sign of his skills.
It's true, mind you, when you are opposing a fictional construct ["Obamacare"], it might be easier to foresee something accomplished in this respect. Thus, the joke about replacing it with something called the "Affordable Care Act." It's funny since it's kinda true. But, it's hard -- there is so much negativity here about the law, hard core "tea party" or "freedom caucus" (everyone else hates freedom) members & high expectations that only going so far is hard here. Government is hard.
Mr. W:
As Obama and both party establishments most recently demonstrated, progressives rarely campaign on imposing progressive policy. Progressive political campaigns outsides of deep blue cities are generally an exercise in consumer fraud.
Oh hogwash. Obama explicitly ran on defending his ACA in 12 and won. Clinton did the same and win the popular vote.
SPAM I AM! repeats his "colon-chuckle" which might suggest to some a more apt anatomical nickname for SPAM but this is a "family blog" (e.g., progressive). SPAM's obviously now firmly entrenched with the House's Freedom Caucus (aka anarcho libertarians). The rest of the Republicans are progressives in SPAM's current political world (childless).
Trump's Time interview included his boast of more covers than anyone else. Alas, Trump learned that Nixon beats him, but the editor reminded Trump that Nixon had a second (but shortened) term. Maybe Trump can make a Playboy centerfold. Back to SPAM, this anecdote may serve as his proof that since Nixon was a progressive, so is Trump. Once again Mr. W has served up to SPAM his own derriere on Nixon as a progressive.
Mr. W:
Remember that Obamacare was deliberately designed not to take substantial effect until after Obama ran for reelection. In 2012, Obama continued to pathologically lie about his creature and the Democrat media was hardly going to correct him. Of course, the GOP nominated the one candidate who supported the progenitor to Obamacare and the least able to take Obama to task for his monstrosity. Clinton ran on repairing Obamacare (no one supports this abortion as it exists) and won a plurality over Trump. A majority of the vote went to the GOP nominee and two more Republicans running under the Libertarian and independent tickets.
If you want an exercise in fraud, try out these quotes:
We’re going to have insurance for everybody, There was a philosophy in some circles that if you can’t pay for it, you don’t get it. That’s not going to happen with us.” "I was the first & only potential GOP candidate to state there will be no cuts to Social Security, Medicare & Medicaid” "It's going to be - what my plan is is that I want to take care of everybody I'm not going to leave the lower 20% that can't afford insurance."
"A majority of the vote went to the GOP nominee and two more Republicans running under the Libertarian and independent tickets."
As I've demonstrated that GOP nominee himself did not call for a flat repeal, he called for it to be repealed while being replaced by something that kept many aspects while adding extravagant promises that run counter to what the Freedom Caucus wants. Hardly anyone voted for what the Freedom Caucus wants.
At some point, you just want to just watch cat videos.
Gerard N. Magliocca over at Concurring Opinions blog argued a recent copyright opinion (concerning cheerleader uniforms) of the Supreme Court was badly written. Justice Breyer wrote the dissent; the appendix had a few photos to demonstrate. Two involve lamps with cats represented (one a figurine next to it; one as part of the base ... this factors into his approach). Meow meow. https://www.supremecourt.gov/opinions/16pdf/15-866_0971.pdf
Mr. W:
Every single one of Trump's speeches included a promise to repeal Obamacare and "replace it with something great." Supporting a bill keeping 80% of Obamacare and rearranging the rest is neither repeal or replacement. After the voters lent the GOP the House in 2010, the Republicans voted for a pure repeal bill dozens of times. EVERY GOP Congress critter candidate ran on these votes and the voters gave them the Senate for their efforts. The Freedom Caucus wants the GOP Congress to enact that bill AS THEY PROMISED.
And when he detailed what would be in the great replacement he mentioned keeping many features of the ACA and other parts which are counter to what the Freedom Caucus wants.
Mr. W continues to serve SPAM I AM! with SPAM's own derriere but SPAM comes back for more servings. Perhaps SPAM is actually a vegan.
Mr. W:
Trump never provided any details of what his "something great" replacement would involve. Your quotes above are a good example of this. Like Obama and yourself, Trump is likely clueless about the policy issues involved and the problems caused by government misdirection of the health insurance and thus the health care industries. An economy is made up of businesses providing goods and services for which consumers are willing to pay to satisfy their individual and family needs and wants. No bureaucracy ever invented can keep up with all of these moving parts, thus every government direction of the economy f_cks up the provision of goods and services satisfying the needs and wants of consumers. You always get a misallocation of resources to compel people to buy what the government wants or to prevent them from buying what the government disapproves. The problem is government direction itself, not which party enacted the direction or a poor choice of direction.
Trump promised to not cut Medicaid, keep the pre-existing conditions and the children 26 and under provisions.
Here's SPAM I AM!'s anarcho libertarianism in his own words:
"The problem is government direction itself, not which party enacted the direction or a poor choice of direction." Libertarians are incapable of governance. Perhaps the heartless don't have need for healthcare. Imagine if the Freedom Caucus were in control of the government. By the Bybee [expletives deleted], how many of the Freedom Caucus are women?
You always get a misallocation of resources to compel people to buy what the government wants or to prevent them from buying what the government disapproves.
# posted by Blogger Bart DePalma : 2:37 PM lol I had a great conversation with a local Jax Beach moron about this yesterday. He hates Obamacare more than he likes living. Literally. He doesn't want to be forced to buy insurance. Just the other day he went to the doctor and paid for it out of his own pocket. Why should he be forced to pay for healthcare for some single mother with 5 kids (I didn't ask the moron the race of that hypothetical woman, but we all know what he's talking about, right?)? So I asked the moron what he'll do if he needs healthcare that he can't afford. I asked him several times, in fact. He ignored me and continued to blather on about not needing insurance. Good times...
Shag: Perhaps the heartless don't have need for healthcare.
Only the brainless want government directing their health insurance. We are discussing two different issues - access and direction. I have no problem with a true single payer health insurance system where the government collects a consumption tax to provide vouchers to people to shop for free market health insurance of their choice. Apart from preventing fraud and ensuring insurers had enough money on hand to pay claims, all government provisions and direction of health insurance and health care would be abolished. No free riders and everyone can purchase the health insurance which best fits their needs and wants. Progressives would oppose such a system because their goal is first and foremost to direct our lives and redistribute our wealth, not to provide whatever "free" good or service they are offering at the time. The latter is simply a mechanism to achieve the former.
Maureen Dowd's column is up at NYTimes online. It's in the form of a letter to The Donald, her long time acquaintance in NYC. Maureen gets a little rowdy as she paints The Donald dowdy. She didn't brand him a loser explicitly but reading between her lines makes the point.
Recall President Trump telling his base (which Brett can confirm) that they'll be winning so much, they'll get tired of winning. But there are no wins as yet. (Brett can count them.) Will Trump's base get tired of losing or is that just a continuation of how they perceive their lives. The Freedom Caucus seemed to welcome Trump. In the TrumScare negotiations Trump made concessions to the Freedom Caucus, but not enough concessions to make an artful deal. And that wall that Mexico was going to pay for has run into some delays, especially financial. But Trump's base needs a wailing wall to lament their the losses. But much of the base has some good news as Obamacare remains in effect for their healthcare; they're going to need it.
Progressives would oppose such a system because their goal is first and foremost to direct our lives and redistribute our wealth, not to provide whatever "free" good or service they are offering at the time. The latter is simply a mechanism to achieve the former.
# posted by Blogger Bart DePalma : 5:39 PM The fact that Ryancare wasn't anything like your plan is a pretty good indicator that rightwing nutcases wouldn't go for it, either.
SPAM I AM!'s concept of single payer health insurance focused on the free market is both brainless and hearless. Providing access only if you can afford it and the extent of coverage in a true free market system would for many be no access. SPAM's view is:
"No free riders and everyone can purchase the health insurance which best fits their needs and wants." No "free riders" would exclude many children and even their parents in the real world. Who determines the needs and wants of those seeking health insurance to be purchased? The free market insurers based upon what the insured can afford? How well has this free market worked in the past? S[AM is brainless and heartless as he walks the libertarian yellow brick road, a self-made man who lifted himself up by his own bootstraps. SPAM still thinks the late 19th century The Gilded Age were America's best days. Yes, SPAM is brainless and heartless.
Shag: Providing access only if you can afford it...
What part of "where the government collects a consumption tax to provide vouchers to people to shop for free market health insurance of their choice" did you not understand?
The administration can always try again. Maybe their Russian masters can send them a plan to follow next time?
Let's be clear. This is not on Trump!
"I want to be clear," she concluded. "This is not on President Trump. No one expected a businessman to completely understand the nuances, the complicated ins and outs of Washington and its legislative process. How would he know which individuals upon whom he would be able to rely?" "We had no way of knowing" is a usual Republican line back to the Bush43 days at least. Health insurance reform, like Iraq, is hard! Live and learn, you know? "Completely" understand. Understand much at all. Tomato/oe. BTW, the proper term is "Russian overlords." http://www.hollywoodreporter.com/news/trump-urges-followers-watch-fox-news-host-who-demands-paul-ryan-resign-988809?utm_source=twitter&utm_source=Direct&utm_source=t.co&utm_medium=referral What part of "where the government collects a consumption tax to provide vouchers to people to shop for free market health insurance of their choice" did you not understand? He probably understood all of it. The problem here is that you're too fucking stupid to understand why your "plan" doesn't do anything to help poor people get health insurance.
Oh, I understood SPAM's words, especially SPAM's code words, such as "vouchers," "free market," "choice." Yes, SPAM was "hound whistling." By the Bybee [expletives deleted], on whose back does a consumption tax fall? Perhaps SPAM's method could be utilized for vouchers for indigent defendants to shop in the free market for criminal defense counsel? How might SPAM fare with that what with his anarcho libertarian mode?
Shag: By the Bybee [expletives deleted], on whose back does a consumption tax fall?
Everyone, thus no free riders.
The word "regressive" is what attracts anarcho libertarians to a consumption tax. So the 1% have more dollars available to augment their vouchers than would the poor and the balance of the 99%. SPAM remains brainless and heartless.
George Shultz was on Face the Nation today talking about foreign policy. He said a healthy America is good for the world as leadership is important. I would add that having healthy Americans makes a healthy America to serve as a world leader, not only making the world healthier but safer for America.
Shag:
The Euro-socialists, if not most of their clueless American cousins, long ago discovered a tiny percentage of the population cannot support a government spending about half of GDP on a massive well paid bureaucracy and welfare state. This is why they all have hidden, large and inescapable VAT taxes reaching into everyone's pockets. A consumption tax is not regressive. The more you spend on yourself, the more you pay in taxes. Those buying $100,000 luxury Tesla battery cars will pay ten times as much as a poor person buying a used car. I prefer a very visible sales tax because people who see what they are paying are far more likely to keep their government's spending under control.
The story of the defeat of the GOP Obamacare-lite bill without the Politico's Democrat spin:
The GOP House and then GOP Senate had passed a clean repeal of Obamacare dozens of times when the Democrat Senate and then Obama was there to stop the repeal. Every GOP Congress critter campaigned on the promise of repeal. However, when the voters gave the GOP the White House and Congress to enact that repeal, the GOP establishment wrote another bill in secret which preserved 80% of Obamacare and only tweaked the finanancial parts. Most of Obamacare's systemic flaws forcing the individual health insurance market into a death spiral were kept in place by this Obamacare-lite legislation. After campaigning against the GOP establishment and Obamacare, Trump betrayed his voters by supporting the establishment Obamacare-lite bill. In a true and very rare example of political courage, the House Freedom Caucus defied their president and party establishment's threats and insisted on enacting the repeal legislation on which they all campaigned. http://www.politico.com/story/2017/03/trump-freedom-caucus-obamacare-repeal-replace-secret-pact-236507
Congress critter Jim Jordan, leader of the House Freedom Caucus, offered a replica of the 2015 Obamacare repeal bill the GOP House and Senate enacted and Obama vetoed in 2015. The GOP establishment refused to act on the bill in committee.
Will a member of the Freedom Caucus try to force a floor vote on the bill with a discharge petition, forcing the GOP leadership to explain why what they voted for in 2015 is no longer sufficient in 2017? http://www.redstate.com/prevaila/2017/03/26/replica-successful-2015-obamacare-repeal-languishing-committee/
SPAM I AM! lauds the political courage of the House FreeDumb K-K-K-Kaukus. SPAM's history fails to reveal that the scores of efforts of Republicans pre-2016 campaign were to repeal, but not replace, Obamacare. With the 2016 campaign, Trump became a populist, pushing, unlike his GOP establishment opponents, not only repeal but to replace Obamacare with a better and cheaper and with more coverage healthcare plan. Other Republicans started picking up on repeal and replace. Ryan's TrumpScare bill was designed to repeal and replace, with the endorsement of Trump who apparently forgot what he had promised his base on a better, broader replacement. The earlier efforts to only repeal Obamacare were only political showcase efforts because President Obama had the veto. Consider the populist reactions to Ryan's TrumpScare reflected in polls. The FreeDumb K-K-K-Kaukus' campaigning back in 2010 and thereafter to repeal did not reflect the changes that were taking place in the minds of the public throughout the nation more favorable with the experience of Obamacare. That was just plain dumb.
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By the Bybee [expletives deleted], Trump was never truly a populist but appealed to the "know nothings." At some point in time the "know nothings" will know something.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |