"Do or Do not. There is no try."

If Newt Doesn’t Implode, Could the GOP Stop Him?

One question posed by the bizarre rise of Newt Gingrich is whether or not he will implode in the Spinal Tap drummer pattern experienced by every other candidate who has challenged Mitt Romney. A second question is whether, failing that, the Republican Party can actually stop him. A third question is whether the Party actually wants to stop him. Let’s consider them in order.

Gingrich is notoriously erratic. But we are only six weeks away from the Iowa caucuses. It is possible that Gingrich manages to hold it together between now and then. And should he win Iowa, he may challenge Romney in New Hampshire (possibly with some help from Jon Huntsman), or at the very least gain enough momentum to overcome him in South Carolina and beyond.

Even assuming away any future meltdown, Gingrich is laden with personal and ideological baggage. Yet he seems to have perfected a smart strategy for deflecting any hostile attention: Attack the media. Gingrich’s incessant and often unprovoked media-bashing is one of the keys to his success. It converts every question about him into a tribal contest between conservatives and the hated Other.

The possible flaw in this strategy would be if right-wing media decide to go after Gingrich. Newt would be in trouble if Fox News started to harp on his marital history or past support for cap and trade. That could happen if Roger Ailes and various party poobahs emerge from their mountaintop castle and decide to anoint Mitt Romney as the nominee.

That would be the obviously sane course of action. Both observable evidence and common sense suggest that Romney would make a far stronger candidate. But Republicans have been disregarding political common sense with increasing frequency. Having the whole House vote for a budget that cuts taxes for the rich and privatizes Medicare yet stands no immediate chance of passage is not a smart idea. Nominating Sharron Angle and Christine O’Donnell is not a smart idea. There is less and less of a sense that those mountaintop castle meetings are actually working the way they’re supposed to.

At one level, it seems completely insane to not nominate Romney. Yet there is a logic to it. The worst thing that can happen to you as a party is for your president to compromise away your agenda, and party unity is far easier to organize in the opposition. The Republicans can block any plan to put a price on carbon emissions by President Obama. All the purists and all the party loyalists will vote as a block to stop it.

But suppose President Romney decides he wants to tackle cap and trade? He’ll split the party between purists, who will vote against Romney’s climate plan, and loyalists, who would be happy to vote for a Romney-endorsed plan, which they would oppose if put forward by Obama. And then support for cap and trade will be marginalized as a position, just as opposing any Medicare drug benefit was marginalized after George W. Bush supported it. In the long run, keeping your party together is more important than winning. You can always come back from a loss, but you can’t come back from apostasy. Another way to put that is, as a liberal, I’d much rather have a Republican president dedicated to a flat tax than a Democratic president dedicated to a flat tax.

Now, the tricky thing with Gingrich is that he is not exactly a perfect vehicle for right-wing purity. But if you view Gingrich’s positions as a graph, with erratic spikes to the left (support cap and trade!) and to the right (fight the secular socialist machine!), the general thrust is still one of maximal partisan conflict. If I’m a Republican, I worry a lot less about Gingrich selling me out than Romney selling me out.


By: Jonathan Chait, New York Magazine, November 18, 2011

November 20, 2011 Posted by | GOP Presidential Candidates | , , , , | Leave a comment

The Affordable Care Act And The Text Of The Constitution: Words Still Matter, Even in the Supreme Court

The most powerful line in conservative Judge Laurence Silberman’s decision upholding the Affordable Care Act last week is a blunt statement that the law’s opponents “cannot find real support” for their  arguments “in either the text of the Constitution or Supreme Court precedent.”

Now that the Supreme Court has agreed to take up this case later this year, Silberman’s words are a stern reminder that the text of the Constitution must guide judges’ decisions, especially in politically charged cases, and that Silberman’s fellow conservatives on the Supreme Court must ignore the temptation to place politics over fidelity to the Constitution by striking down the Affordable Care Act.

There can be no question that Silberman is right about what the Constitution has to say about this law. The federal government’s power is not unlimited—the Constitution gives Congress a laundry list of  “enumerated powers,” and Congress cannot stray beyond this list—but its  authority is quite sweeping when it regulates nationwide commercial  markets such as the market for health care services. In the  Constitution’s words, Congress may “regulate commerce . . . among the  several states.”

The plaintiffs’ primary challenge to the Affordable Care Act is to the provision requiring most Americans to either carry health insurance  or pay slightly more income taxes. In their vision of the Constitution, this provision runs afoul of some unwritten rule against being told what to do. The federal government can regulate how people go about the business they are already engaged in, under this narrow vision, but it is utterly powerless to push people to engage in commerce they would prefer to avoid.

There are many, many problems with this theory of the Constitution.  But Silberman’s rebuttal of it is both the most simple and the most elegant response to the plaintiffs’ entirely fabricated legal theory. The Constitution says nothing suggesting that people can immunize themselves from the law simply by remaining passive. It simply provides that the United States may regulate commerce among the several states.

Modern judges do not need to speculate what the founding generation  understood these words to mean when they were written into the text of  the Constitution. Chief Justice John Marshall—himself one of the  ratifiers of the Constitution—told us what they mean in the 1824 case of  Gibbons v. Ogden. Marshall wrote that there is “no sort of  trade” that the words “regulate Commerce” do not apply to. He said that  the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’s power to regulate commerce “among the several states” applies to all trade that “concern[s] more states than one.”

So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade—trade for health  services—and it regulates a health services market that is both  pervasive and nationwide. The Affordable Care Act cases are some of the  easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that a handful of judges have struck the law down.

Thankfully, the overwhelming majority of judges to review the law  have upheld it. Of the four federal appeals courts to consider the Affordable Care Act, only one voted to strike it. That one outlier decision was grounded on a false fear that if the courts were to uphold health reform, it would somehow eliminate all of the existing limits on congressional authority. If Congress is allowed to regulate health care today, the law’s opponents argue, tomorrow they will force everyone to  buy broccoli.

Make no mistake: This concern is misguided, and it has no basis in the Supreme Court’s precedents. In its 1995 decision in United States v. Lopez,  the Supreme Court explained that the power to regulate “commerce”  includes sweeping authority over the nation’s economy, but Congress’s  authority over noneconomic matters is far more limited. Thus a wide  range of noneconomic regulation—including federal laws governing personal and sexual morality or even a federal ban on assault, rape, or  murder—clearly exceed Congress’s enumerated powers. Sweeping regulation of the national health care market, by contrast, fits comfortably within the Constitution’s text.

Because the text of the Constitution clearly and obviously supports the Affordable Care Act, the Supreme Court has an unambiguous duty to uphold it. Judges are not like members of Congress. They are unelected, and they serve for life. As such, they cannot be held accountable to the people through fear of a lost election and can only be checked by their loyalty to our written Constitution. If the federal judiciary has the  power to ignore the text of the Constitution then there is literally nothing that they cannot do.

Indeed, if the justices strike down the Affordable Care Act, there is  nothing preventing them from forcing every American to buy broccoli.

By: Ian Millhiser, Center For American Progress, November 14, 2011

November 20, 2011 Posted by | Conservatives, Health Reform | , , , | 1 Comment


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