The Enduring Significance of the Defeat of “Repeal and Replace”

David Super

Posted 2:13 PM by David Super [link]

Why the Court can't really solve the problem of fair representation

Sandy Levinson

Great hopes are being placed by many that the Court will help to staunch the cancer on American democracy that is partisan gerrymandering.  I certainly hope there are five Justices who agree that Wisconsin (and many other contemporary states) are acting unconstitutionally.  But it is a mistake to believe that even your favorite opinion (whatever that might be) would truly alleviate the problems posed by the House of Representatives.  It is doomed to be "unrepresentative" in many important ways so long as it remains within the stranglehold of the 1842 congressional act, reaffirmed in 1967, that requires single-member districts.  What is needed, in all states with more than, say, six representatives, is multi-member districts with candidates elected on the basis of proportional voting. This would not only go far to eliminate the ravages of contemporary partisan gerrymandering, but would also assure, say, that Republicans in LA would be able to elect a representative, just as Democrats in West Texas would finally get some genuine representation.

From one perspective, single-member districts doesn't present a "constitutional problem" at all, because they are the result of a congressional statute that could presumably be repealed, to be replaced with a requirement that states adopt multi-member districting and proportional voting.  But we all know that there are no conceivable circumstances under which the House of Representatives would ever vote for such legislation, even assuming the Senate and President would go along.  Nor, as a practical matter, can one envisage Congress proposing a constitutional amendment along these lines, for the very same reason.  (Now, it would take only 1/3+1 of House members to keep the status quo.)  Were the US like California or Nebraska (a decidedly non-crazy state), "we the people" could organize to support a constitutional initiative-and-referendum to reform our ever more indefensible system of "representative government."  But, of course, thanks to James Madison and his associates' fundamental mistrust of popular sovereignty, there is not a scintilla or an iota of direct democracy in the US Constitution, unlike 49 of the 50 state constitutions--Delaware is the once exception.  So, therefore, the only way to alleviate the problem in which conscious gerrymandering is only the very visible tip of an iceberg is through a constitutional convention.

My hunch is that at least some of you will agree that the House of "Representatives" is becoming ever more an oxymoron, and even that the proposal, advocated by FairVote, of multi-member districts and proportional voting, is a good idea.  BUT not via a constitutional convention.  So we are doomed to continue to be liked in the vise of an unrepresentative and undemocratic Congress because we are scared stiff of the kind of democratic politics that a constitutional convention would generate.  This is the present American dilemma.  Since most of us don't really believe in the genuine possibility of democratic government, which requires some degree of faith in "the people," instead we produce a market for unscrupulous demagogues, like our current President, whose only saving grace is his manifest incompetence as an actual governor.  But in the future, without basic constitutional reform, we'll get far "better" demagogues, as it were, who will learn from Trump's mistakes.  In any event, the last thing we should do is to continue believing that the Court will save us.  It could make things marginally better if it strikes down the pernicious Wisconsin gerrymander, and one should be grateful for small favors.  But that's all it would turn out to be in the absence of a national conversation, which we're simply not having, about what might constitute "representative government" in the 21st century in a divided country of 320,000,000 people where. more people live in each single-member congressional district than lived in the largest American state circa 1790.
Posted 4:45 PM by Sandy Levinson [link] (52) comments

More on Puerto Rico

Sandy Levinson

As part of the blog about our new book, Fault Lines in the Constitution, my wife Cynthia and I have just posted a discussion about Puerto Rico.  It doesn't add very much to Gerard's excellent post, save that we hope that at least some of our audience includes the teenagers to whom our book is directed and their teachers.  I do suspect that this will be a decisive moment in the relationship between the US national government and what is now the world's largest remaining colony (defined by the absence of any voting representation in the metropolitan government, unlike, for example, the French territories).  One can only imagine what would be happening if Puerto Rico, which is the same population roughly as Connecticut, had that state's two senators and five members of the House (not to mention seven electoral votes).  I would think, at the very least, that events of the past week have weakened the attraction of Commonwealth status, and I will be curious, should this turn out to be the case, if the defectors support statehood or independence (or, of course, independence should a bigoted Congress reject statehood because the dominant language of Puerto Rico is Spanish.  And, of course, it would be extremely interesting, to put it mildly, to see what the response of the US would be to a truly serious secessionist movement patterned after 1776.
Posted 4:25 PM by Sandy Levinson [link] (7) comments

The Supreme Court's New Term

David Gans

Posted 2:22 PM by David Gans [link]

Kudos to Michelle Goldberg on her joining the New York Times op-ed group

Sandy Levinson

It is overdetermined that I am elated that Michelle Goldberg is now a regular op-ed writer for the New York Times.  Her first column this morning, which for some reason I seem unable to link to, was on the degree to which we are subject to minority rule in the US, and she was kind enough to quote me.  I confess I am very pleased about that.  But I'm even more pleased by the fact that she is now the first pundit who is willing to "connect the dots" between the defects of our political system and the Constitution.   As many of you know, I have been very frustrated with Tom Friedman and Paul Krugman over many years because they repeatedly write very eloquently about the dysfunctionality of our present polity, but never once engage in "dot connecting."  Krugman especially is content to engage in vigorous denunciation, much of it certainly deserved, of Republican leaders, without ever asking why we accept with such equanimity at constitutional system that, during the Obama presidency even in 2009-2011, allowed the minority party in the Senate such power to obstruct the Obama program.  I'm on record as saying that Mitch McConnell was behaving quite rationally as an opposition leader, but that the Constitution should be blamed for giving him so much power.  Thank goodness, in at least one sense, that the Republicans won the Senate, for now it is crystal clear that the inability to repeal Obamacare is not because of obstructionist Democrats but, instead, because of the growing rifts within the Grand Old Party itself.  We would be getting an entirely different narrative if 51 Democrats had ostensibly prevented repeal.

Everyone knows that the hardest achievement is to get from 0 to 1 with regard to a public issue.  For years now, the number of mainstream pundits willing to engage in serious discussion about constitutional defects has been zero.  Now we have one, and my fervent hope is that Ms. Goldberg will spark the long overdue discussion that we are so desperately in need of.  My conservative friend Seth Lipsky just posted a welcoming editorial about Goldberg in the New York Sun website (again, for some reason I can't link to it), in which he takes issue.  So perhaps the number in one day has gone from zero to two.  

As usual, I'm willing to allow comments, but I fervently hope that everyone will first log on to the NYTimes site and read Ms. Goldberg's column before commenting.  Let me say, incidentally, that I was heartened by the comments to Gerard's very important posting on statehood for Puerto Rico.  Almost uniquely, I felt that everyone was genuinely in conversation with one another and not simply attempting to score cheap (and completely predictable) political points.  Puerto Rico presents really difficult issues, which are almost certainly going to get every more complicated.  Will the response of Puerto Ricans to mainland indifference be to encourage a switch of "commonwealth's" to supporters of statehood, in order to get some genuine political clout that they now lack, or, instead, will it promote support for secession from the American Empire a la 1776, and would we allow it?  Would Republicans in fact support statehood, whatever their platform says, given the high likelihood that it would result in two Democratic senators and five Democratic representatives?

Ms. Goldberg, incidentally, is also courageous enough to treat the issue of secession with some seriousness, interviewing Gov. Jerry Brown about potential developments in California.  It will be really interesting to see where she chooses to focus on in the future, but her debut, from my perspective, was auspicious in every conceivable way!
Posted 11:22 PM by Sandy Levinson [link] (62) comments

Introducing the Emerging Threats Essays—A Series of Papers About New (or Newish) Challenges to the Freedoms of Speech and the Press

David Pozen

Posted 11:53 AM by David Pozen [link]

Puerto Rican Statehood

Gerard N. Magliocca

Sometimes a disaster or a crisis is required to bring about long-overdue change. Whatever people may say about the Federal Government's response to Hurricane Maria so far, it is hard to avoid the conclusion that Puerto Rico would be getting more (and faster) aid if the island was a state with two senators and at least one voting representative in Congress.

Moreover, President Trump ran on Puerto Rican statehood.  Here is the relevant language in the 2016 Republican Party Platform:

We support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state. We further recognize the historic significance of the 2012 local referendum in which a 54 percent majority voted to end Puerto Rico’s current status as a U.S. territory, and 61 percent chose statehood over options for sovereign nationhood. We support the federally sponsored political status referendum authorized and funded by an Act of Congress in 2014 to ascertain the aspirations of the people of Puerto Rico. Once the 2012 local vote for statehood is ratified, Congress should approve an enabling act with terms for Puerto Rico’s future admission as the 51st state.

Maybe Congress will take up this opportunity for bipartisan legislation to start the admission process.
Posted 9:45 PM by Gerard N. Magliocca [link] (28) comments

Top Ten Upsides of a Nuclear War with North Korea

Mark Graber

Posted 9:04 PM by Mark Graber [link]

And, Right on Cue...

Mark Tushnet

Posted 3:32 PM by Mark Tushnet [link]

Free Speech on Campus

Mark Tushnet

Posted 11:51 AM by Mark Tushnet [link]

The State of "Our Democracy" -- Sitting in for Sandy Levinson

Mark Tushnet

Posted 11:23 AM by Mark Tushnet [link]

The Senate's latest health care proposal: Once again, it's all about the tax cuts

JB

The Graham-Cassidy proposal currently before the Senate looks different than the House ACHA and Senate BCRA bill in one important respect. It does not eliminate most of Obamacare's taxes. ACHA and BCRA were little more than a tax cut for wealthy donors disguised as a health care bill. By contrast, Graham-Cassidy appears, on its face, to keep taxes in place and to strike a blow for federalism.

But looks can be deceiving.  Graham-Cassidy is also about making it easier to cut taxes on the wealthy; it merely does so through a less direct process.

Graham-Cassidy converts Medicaid entitlements and Obamacare subsidies into block grants to states. The total amount of these block grants decrease projected government spending on health care over the next two decades, with the very largest cuts placed at the end. An analysis from Avalere Health reports that Graham-Cassidy will cut 215 billion dollars over a ten year period and more than 4 trillion dollars over a twenty year period. The block grants to states are the vehicle through which the spending cuts are achieved.

In the process, Graham-Cassidy would also shift money from states that previously expanded Medicaid to cover more poor people and/or have relatively generous Medicaid benefits to states that rejected Medicaid expansion for the poor and/or have relatively ungenerous Medicaid benefits. In other words, it produces a transfer of income from (mostly but not exclusively) blue states to (mostly but not exclusively) red states. The more that states tried to help the poor through the Medicaid expansion, the more they have to lose from Graham-Cassidy, and the more other, less generous, states have to gain.

But the redistribution of federal funding among the states is not the most important feature of Graham-Cassidy's use of block grants.

Converting subsidies and Medicaid entitlements into block grants lowers the baseline of predicted federal expenditures on health care for the next two decades-- and thus the baseline estimate of the predicted federal deficit. A lower level of predicted expenditures, in turn, makes it easier for Republicans to lower taxes for their wealthy donors consistent with the reconciliation rules for next fiscal year's budget.

To be sure, Congressional Republicans will probably not be content with the tax cuts they can permanently enact through the reconciliation process. So they may decide to pass additional tax cuts that must end in 10 years. If they follow this approach, Graham-Cassidy will also partially offset the very large deficits these tax cuts will create.

Graham-Cassidy, like its predecessors, is bad health care policy. Many journalists have wondered how intelligent men and women can vote for something called health care reform that increases costs and limits effective access to health care for millions of Americans. It seems as if Congressional Republicans don't understand their own bill.

But the Congressional wing of the Republican Party has never really been all that concerned with good health care policy. They have been focused on reducing or eliminating entitlements, and on cutting taxes and regulations that affect their wealthy donor base.

From this perspective, Graham-Cassidy makes perfect sense. It is the tribute that politicians pay to the oligarchs who actually control them.


Posted 4:31 PM by JB [link]

They're back!

David Super

Posted 8:56 PM by David Super [link]