Americans Elect: The Wrong Solution to the Wrong Problem

Tired of being forced to choose between the presidential nominees that the Democratic or Republican Parties have decided to put on the general election ballot? Well Americans Elect, a non-profit group, is attempting to fix that. Americans Elect was founded with the goal of nominating a presidential ticket that puts aside party politics by nominating a presidential candidate that is beholden to the people rather than a political party. Americans Elect has led an exciting effort to put its candidates on the general election ballots of all fifty states. They will be holding online elections, and will have delegates determine what the platform is for its eventual candidates. Despite, the rather impressive attempt to provide America with a realistic third presidential choice come November 6^th, Americans Elect is trying to solve the wrong problem with the wrong solution.

First, let’s analyze a major problem that Americans Elect is attempting to remedy; that partisan politics is hurting the country by forcing the government into partisan gridlock over most legislation. AE focuses on the presidential race because it believes that AE’s eventual candidates for president and vice president can unify the country in a spirit of bipartisanship. Admittedly partisan politics is an immensely difficult issue in today’s politics. Unfortunately, the Executive branch is not the place to resolve those problems. A casual look at Article II of the Constitution makes it pretty clear that the president has very little power to do anything out of self-initiative. As Justice Jackson noted in Youngstown Sheet & Tube v. Sawyer, there are three categories of power that the Executive branch operates under with descending levels of legitimacy: 1) cases where the President acts at the behest of congressional legislation, 2) situations where Congress is silent, 3) cases where the President defies Congress but has specific Article II authority to act. The core takeaway from Youngstown is that the President has scant authority to do anything politically without Congress first giving the President the legislative authority to do so. In terms of policy, this means that the President is hamstrung by the realities of the Constitution’s structure, namely that Congress creates policy, and the President implements it. Considering this, it seems that Americans Elect should focus its efforts on Congress, where legislation is introduced and manufactured, rather than the Executive branch.

Secondly, another serious error in Americans Elect’s stated problem is that partisanship in our elected officials is borne out of our primary election system thanks to median voter theory. It is very obvious that primary election turnout is significantly less than general election turnout. For example, in 2008, 57% of the population voted in the general election, but roughly 30% of people voted in the primary elections. This election cycle many states have reported lower than normal turnout rates for primary elections. Generally, individuals who show up for primary elections are party adherents, people who have strong feelings about being a conservative or a liberal, and tend to identify further on the right or the left as opposed to being independents in the middle. Median voter theory states that given a universe of potential voters, a candidate running against other candidates will attempt to attract the median voter in that universe to garner the most overall votes. The problem is that in primary elections, the universe of voters is made up of people who generally align themselves further right or left than the median voter in the general election. Given this, a candidate in a primary race is forced to run further to poles of political ideology to win the primary nomination to the general election. We have seen this happen in this year’s Republican presidential nomination; one of the key concerns is that Romney has positioned himself temporarily to the right and now that he has effectively won the nomination, will swing back to the center. The conservative concern over Romney is a perfect example of the median voters in the Republican primary, who are far more conservative than the average overall voter, voicing their concerns that Romney will bolt from conservative principles to win the general election. Ultimately the primary nomination process winnows out candidate whose political ideology aligns closely with the general election median voter because those candidates cannot capture the median primary election voter who is likely to be far to the right or left of the ideologically centrist candidate.

Given the above, AE’s solution will likely do little to break partisan gridlock. AE would be better served by ensuring more moderate congressional candidates survive the primary election process and end up on the general election ballot. As noted above, there is a vast gulf between the number of voters between primary and general elections. The solution is to increase the number of voters that show up at primary elections, rather than focusing on general elections when it is too late to change the ideological leanings of a candidate. AE should work to get Americans used to the idea that there are generally two elections every year, and focus its efforts on educating and notifying voters who normally do not participate in primary elections. If AE wants to make a meaningful impact, and help end partisan gridlock, the key is to make sure the average general election voter, who is more moderate than a primary election voter, participates in the primary election process. Until then, we can count on continued partisan bickering in Congress, stymied presidential efforts, and a lack of grand policy solutions in America.

The Battle Over Healthcare: Part II

The oral arguments are over, but the debate rages on. Of course, guessing how the Supreme Court will come down on the Patient Protection and Affordable Care Act is a dangerous enterprise. Regardless, I believe that the Supreme Court will uphold the legislation in its entirety by a 6-3 vote at worst, or a 7-2 vote at best. Given prior jurisprudence, I think it is likely Justices Kennedy and Roberts will rule in the majority. As a result, Justice Roberts will likely write a very narrow holding which may also sway Justices Alito or Scalia. Now that I have revealed how I think the case will be resolved, I am going to shift the conversation to the legal core of the oral arguments and why I think there are workable limits to the Commerce Clause that are sufficient to uphold the Affordable Care Act and preserve state’s sovereignty.

The engine that drives the Affordable Care Act is the individual mandate. The government has justified the individual mandate as a lawful exercise of the Commerce Clause. The difficult part of applying the Commerce Clause to the act is determining its natural limits when it comes to the interplay between federal authority and state autonomy. The Supreme Court dogged General Verrilli with questions about the limits of the Commerce Clause if the Act is upheld. Although Verrilli had a hard time elucidating a clear boundary for the Commerce Clause, it seems to me there are three constructions of the Commerce Clause that would have varying degrees of success or failure with the Supreme Court: 1) healthcare, a well regulated and one of few markets where non-payment results in delivery of services, is a narrow enough situation that Congress’ ability to require affirmative market action in this limited set of circumstances is acceptable, 2) markets where individuals are at the threshold of using the market, and ultimately will use the market at some point in their lifetime, justifies affirmative action to prevent anticipatory participants from frustrating the overarching healthcare regulatory regime, 3) the Commerce Clause’s natural boundary is at commerce that is not only local, but has no nexus with commercial activity. Considering the degree of nuance between these three constructions, I will deal with them in their own right while also discussing the counter-arguments and likelihood of success for each construction.

The first construction assumes that healthcare is a unique market that, because of its eccentricities, requires unique legislation to sustain regulation of the market. I think that this interpretation of the Commerce Clause has the highest probability of being upheld because it is one of the narrowest ways to interpret and uphold the law. The argument focuses on several factors that do not exist in any other market situation; mainly that healthcare is subject to comprehensive congressional regulation, and that healthcare is one of few markets where you will be provided service regardless of whether you paid for market services. These two factors together fashion a significant limit the Commerce Clause. If these two limits are a necessary nexus that must be met prior to Congressional mandates for market participation, then some of the hypothetical quandaries the Supreme Court raised can be avoided. For example, the government could not force you to buy broccoli because, although it is well regulated as part of the food market, it is not a market that will provide services absent payment. The government also could not force an individual to buy a telephone for emergency services because congress has not extensively regulated emergency services, akin to healthcare or other comprehensive regulation regimes, nor are emergency services an actual market that citizens can participate in because municipal, county, and state taxes tend to sustain the market as opposed to individuals paying directly for service.

The first construction is likely to garner the most votes because of its narrow parameters. Congress would be hard pressed to argue that another market is “unique” enough to warrant similar individual mandates in other laws because few, if any other, markets meet the two prong nexus above. Additionally, the first construction is likely to get more votes by the Supreme Court because Justices who favor strict boundaries to the Commerce Clause are likely to latch onto decisions that narrowly construe the clause. Justice Roberts may join an opinion that narrows the Commerce Clause while drawing a line in the sand stating that the government can go no further. Justice Roberts has a penchant for boldly drawing such lines, as was exhibited in FEC v. Wisconsin Right to Life, where he harshly proclaimed that “[e]nough was enough” when it came to applying prior Court precedent to new methods of express advocacy in politics. Additionally, at oral argument Justice Kennedy seemed somewhat receptive to the idea that medical insurance and healthcare markets are unique enough that they operate as their own limit to applying individual mandates to other congressionally proclaimed “unique” markets.

The second construction is far more tenuous and slightly more nuanced than the first. Saying that the limit to the Commerce Clause is based on anticipatory market participants has two problems that obfuscate the boundaries of the Commerce Clause. Depending on how you see the participants in the marketplace, one can describe the individual mandate as forcing people into a market, or as covering individuals who are in the market by nature of being born by preventing healthy individuals from failing to pay their share of healthcare costs. These two distinctions were raised by the justices during oral argument. Justice Kennedy argued that the individual mandate could force market participation on individuals which is a fundamental change in the relationship that the federal government has to its citizens. If a majority of justices see the individual mandate as requiring individuals to participate in a market, then it is likely that the vote will either be 5-4 in upholding or striking down the law with Justice Kennedy as playing the decision maker. This is because the Commerce Clause is not designed to create commerce but to regulate commerce. Forcing participation goes against this principle and would draw serious reservations from the justices.

On the other hand, if the justices see individuals as already being in the market, then the possibility of a 5-4 or a 6-3 vote seem somewhat more likely. This is because this view avoids creating markets and instead the individual mandate would be seen as regulating markets, a far more traditional exercise of the Commerce Clause. This was General Verrilli’s argument on the second day of oral argument. As Justice Ginsburg noted, this interpretation of the second construction of the Commerce Clause would be a way of stopping free-riders from making health insurance more expensive to those who actively participate in the market. The problem, as Justice Roberts and Justice Scalia noted, is that every market has this problem to some degree. For example, failure to purchase a product, like a car, results in that car’s price going up to account for those people who won’t buy the car. Those costs are then transferred to the eventual buyers of the car. Regardless of how you view either interpretation of the second construction, creating market participation or market regulation, the second construction would draw the ire of justices concerned supporting an exertion of the Commerce Clause that can too easily be adapted to other policy situations.

The third construction simply would not win a majority of the Supreme Court because it has the least limits on the Commerce Clause. Arguing that the Commerce Clause is limited by activities that are purely local and unrelated to commerce would allow nearly any kind of policy passed by Congress to be deemed a valid exertion of the Commerce Clause. Justice Breyer argued that this is the appropriate way of limiting the Commerce Clause based on history. Justice Breyer has much precedent to bolster his assertion. Aside from the Lochner era of cases, for the longest part, the judiciary has consistently upheld congressional enactments through the Commerce Clause with minimal scrutiny. See U.S. v. Darby Lumber Co.; Gibbons v. Ogden; NLRB v. Jones & Laughlin Steel Corp.; Katzenbach v. McClung; Wickard v. Filburn; Gonzales v. Raich. The few modern day constraints of the commerce clause were mentioned in U.S. v. Lopez and U.S. v. Morrison wherein both laws were about local activity that did not involve commerce except in tangential ways. Despite the bevy of cases that Justice Breyer can rely on to show that the Commerce Clause does not need many limits applied to it, the majority of Justices would likely be very cautious about espousing such a broad rule considering ruling under these grounds could obliterate the sovereignty of state governments. See U.S. v. Lopez for the proposition that despite the Commerce Clause’s expansive power it cannot invade on states’ rights and traditional powers. The third construction would allow the individual mandate to pass but would allow its application in multiple arenas outside the healthcare system. Considering the current Supreme Court’s concern about state sovereignty under the Tenth Amendment, as echoed by Justice Scalia at oral argument, it is not likely this view of the Commerce Clause would gain a majority of the Supreme Court.

Given the above, I think the Supreme Court, despite its hesitations about the Affordable Care Act, will ultimately uphold the law under a very narrow construction. Likely the Supreme Court will note that the unique nature of health insurance and healthcare markets is unique to a degree that this application of the Commerce Clause only applies in this situation and no others. I think such a construction would set clear limits on the Commerce Clause, and would let Congress know that an individual mandate in other circumstances would be unconstitutional.