The missing throwback

The Democratic presidential primary field is filling up. But there will be one unfortunate absence in the race to be the party’s 2020 nominee: Senator Sherrod Brown (D-Ohio), who took himself out of the running last week. That’s a shame, because Brown’s prospective candidacy almost uniquely could have helped the party hone the balance it gives to economic vs. social/identity issues.

Before Brown announced he would not run, George Packer wrote an insightful profile of him in The Altantic. Packer calls Brown a “throwback Democrat” who “wants to return to a period when the American middle class was strong and secure, and its champion was the Democratic Party.” Brown is a bonafide Rust Belt (though he hates that term) populist. He’s an ardent free trade skeptic who talks about the dignity of work, and has proposed a universal child benefit for all American families.

The Democratic Party has moved toward Brown on economic policy. Yet Brown’s style remains distinctive, as he is careful to let his economic positions occupy the center of his political cause, while somewhat muting his social beliefs. As Packer describes Brown’s approach:

His social views are in step with his party. He is pro-choice in a socially conservative state; in 1996 he voted against the Defense of Marriage Act, which many Democrats supported; he recently called President Donald Trump a racist on national television. Yet he manages to be a die-hard liberal without giving the impression that he intends to upend tradition or challenge the virtue of anyone who disagrees with him. His concern for people who do hard, underpaid work is so evident that some of them might overlook positions of his that they abhor.

Progressives have spent a good deal of time since the 2016 election debating whether the election of Donald Trump was about racial and cultural anxiety or about economic insecurity. Brown’s candidacy would have weighed in on that debate. While he holds clear progressive social views, he is inclined to sublimate those positions for the sake of uniting a broader coalition around economic populism. It’s a strategy of crafting a big tent — of winning the benefit of the doubt, and the vote, from those Americans who have common economic interests but split ways with Democrats on social issues.

In some ways, it’s reminiscent of the politics of Barack Obama. On social and cultural issues, Obama’s instinctive style was to acknowledge the good-faith values and concerns at stake on both sides of a debate, and then ultimately side with the liberal position. He didn’t dodge these questions so much as seek conciliation. But that first part — acknowledgement — had the effect of building a bridge to those on the other side of cultural divides and kept them engaged so that even if they didn’t agree with Obama on everything, they felt enough common cause to back him at the polls.

Over the last two presidential elections, Democrats won in 2012 when economic divides were at the center, and Republicans won in 2016 when cultural divides were the focus. The “big tent” approach of Obama and Brown, of quieting the culture wars for the sake of honing in on class and economic issues, deserves a hearing in 2020. But of course, there’s a question of whether the 2020 Democratic primary electorate would tolerate such a strategy. Obama was allowed some room to equivocate because of his historic candidacy — he himself was a racial and cultural issue. Twelve years removed from 2008, it’s far from clear how a white candidate who didn’t full-throatedly trumpet progressive social causes would be greeted by the Democratic grassroots.

As Packer puts it:

Nothing would test the proposition that the Democratic Party can regain its old working-class base like a presidential candidacy of Sherrod Brown. He has a strong record on issues of race and gender, but you’re less likely to hear him speak of patriarchy and white supremacy, let alone intersectionality, than of justice, equality, and dignity for all people. It’s a real question whether this will make him acceptable to progressive activists today.

That question will go unanswered, as Brown sits out the 2020 cycle. But strategically, Democrats ought to think about exactly where their bridge to large portions of the country has deteriorated. Voters who aren’t bought in wholesale to the progressive movement decide elections, and those voters are at risk of tuning out the party entirely if they believe its paramount focus is not on economic needs, but on fighting over bathroom access and chiding people to check their privilege. Social dignity matters of course, but it’s far more likely to prevail politically if progressives center a message of economic dignity first.

Democrats must be wise about their litmus tests. There’s value in revisiting the party’s old traditions embodied in a throwback like Brown.

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The last squawk of the deficit hawks

Steven Rattner has a column in the New York Times bemoaning the supposed fiscal profligacy of the rising Democratic 2020 agenda, including ambitious programs like Medicare for All, free college, and the Green New Deal. It’s a retread of the deficit hysteria from the early 2010s that bound the Obama administration’s post-recession agenda in a self-imposed straightjacket. Progressives should not put on that jacket again.

Rattner, a Wall Street financier who led President Obama’s auto industry task force, criticizes what he calls “a convenient bit of progressive dogma: Don’t worry about the fiscal impact because America’s rising budget deficits and debt levels don’t much matter.” (That’s a reference to Modern Monetary Theory, a heterodox school of economic thought gaining traction in some circles on the left by attempting to decouple taxation from government spending.) Rattner calls MMT-inflected deficit arguments a “scary drift of thought” that “should set off alarm bells for all Americans” because “[v]ast increases in debt will ultimately compromise Washington’s ability to maintain its current array of spending programs, let alone add new ones, and threaten our standard of living.”

Rattner is right that progressives are feeling increasingly uninhibited when it comes to proposing deficit-financed programs. That’s a good thing, and it’s the confluence of several factors.

The first is a rising hard-nosed progressive attitude that wants to level the political playing field by fighting like Republicans would on a variety of fronts. Republicans have repeatedly engaged in the bait-and-switch of complaining about deficit spending when Democrats are in office and then throwing fiscal hawkery out the window while in power to pass gargantuan debt-financed tax cuts. Take the transformation of White House Chief of Staff Mick Mulvaney, one of the most hysterical deficit-phobes during the Obama years, who recently admitted that deficit reduction would not make an appearance in Trump’s State of the Union address because “nobody cares” about it. Republicans have repeatedly pulled this bait-and-switch over the years, and Democrats are rightly determined to stop falling for it.

There’s also some strategic calculation behind the Democrats’ willingness to propose big new policies without a plan for generating corresponding new revenue: they’ve determined that their policies stand a better chance of advancing without being shackled to unpopular funding streams. For example, Senator Brian Schatz proposed a big debt-free public college program last year. He told Vox: “I don’t play the pay-for game. I reject the pay-for game. After the Republicans did the $1.5 trillion in unpaid-for tax cuts, . . . I just reject the idea that only progressive ideas have to be paid for. We can work on that as we go through the process, but I think it’s a trap.” Schatz and other Democrats have strategically opted to leave the pay-for details of their policies TBD so that they aren’t targets for withering attack from the very start.

There is another game Democrats can play, however. Rattner warns that “progressives argue that certain kinds of spending are, in reality, investments that will bring large dividends in the future. With interest rates still near historic lows, they contend that the returns from borrowing for these investments would greatly exceed interest costs.” It’s the progressive equivalent of the conservative argument that tax cuts will pay for themselves. Progressives can (and in my opinion, should) argue that current spending on education, income security, and other priorities will pay dividends over time, covering their own costs by raising incomes, standards of living, and future tax revenue. That’s especially true for health care reforms and spending in green energy and infrastructure: dealing with the fallout of our health care and climate crises on the backend will be far, far more costly than preempting those crises today.

There is historic precedent that progressives can point toward: the post-World War II G.I. Bill. Here’s historian Jill Lepore in her magnificent These Truths: A History of the United States:

[The G.I. Bill] created a veterans-only welfare state. [It] extended to the sixteen million Americans who served in the war a series of benefits, including a free, four-year college education, zero-down-payment low-interest loans for homes and businesses, and a “readjustment benefit” of twenty dollars a week for up to fifty-two weeks, to allow returning veterans to find work. More than half of eligible veterans–some eight million Americans–took advantage of the G.I. Bill’s educational benefits. Those who did enjoyed average earnings of $10,000-$15,000 more than those who didn’t. They also paid more in taxes. By 1948, the cost of the G.I. Bill constituted 15 percent of the federal budget. But, with rising tax revenues, the G.I. Bill paid for itself almost ten times over.

So the G.I. Bill added a massive new set of welfare benefits onto the federal budget, funding free education, subsidies for housing and entrepreneurship, and a time-bound basic income guarantee for millions of Americans. It seized upon the unwinding war mobilization to reshape the American economy by creating a broad new middle class. And by opening the doors to the middle class, the G.I. Bill produced more middle-income households, which led to higher tax revenue in the long run, paying for itself, and then some.

Many consider the G.I. Bill to be one of our country’s crowning legislative achievements. Indeed, our modern conception of middle-class America would not exist without it (both for good and for ill, given its virtual exclusion of African American service-members). Perhaps it’s time for progressives to emulate the bill’s achievements to restore the middle-class after four decades of erosion.

For Rattner, the problem appears to run deeper than merely how to finance a twenty-first century version of the G.I. Bill’s achievements. “It’s like a couple in their 40s deciding to borrow money to sustain a lavish lifestyle and then leaving the debts for their kids to pay off after they’re gone,” he writes. Analogizing federal spending to household budgets notoriously tilts the debate toward austerity. But comparing programs to reduce income inequality, guarantee universal health care, and combat climate change to a “lavish lifestyle” completely misses the base, to say the least.

The last decade of policymaking has disabused progressives of their terror of debt politics. There is no constituency for tough-choices austerity. In 2019, sniping at the progressive agenda over missing pay-fors sounds a lot like the last squawk of the deficit hawks.

Medicare for All meets health reform physics

Kamala Harris came face to face with the physics that have governed American health care politics for nearly thirty years.

Harris, a Democratic contender for the 2020 presidential nomination, is a co-sponsor of Senator Bernie Sanders’s Medicare for All bill. That bill would enroll all Americans in a single government-run insurance plan, abolishing private health insurance in the process. During a CNN town hall in Des Moines, Iowa, on Monday, Jake Tapper asked Harris if her plan would eliminate private health insurance. Harris answered unequivocally, “Let’s eliminate all of that. Let’s move on.”

The right pounced. The Republican National Committee said that Harris wants to “wants to eliminate private insurance even if you like your plan.” Conservative policy writer Philip Klein said Harris was “gambl[ing] that kicking 177 million people off of their private insurance is good politics.” Even coffee mogul Howard Schultz pounced, adding Harris’s health care plan to the growing list of things he has declared “un-American” during his fledgling pre-presidential campaign.

Of course, it’s a literal truism that Medicare for All would involve moving all Americans off of their current insurance plans and on to Medicare. But it’s also a somewhat disingenuous attack. Most people only have any particular attachment to their insurance plan because it unlocks access to a particular set of providers and benefits. They have loyalty to their physicians and hospitals, not to Aetna or UnitedHealth. Medicare for All might become the only game in town for insurance, but it would  give everyone absolute choice of health care provider by getting rid of the networks that today limit which doctors and hospitals you can visit.

The best case for Medicare for All is that it would be liberating, providing truly universal access to health care, good anywhere for any physician you’d like to see. As Sanders colorfully explained, under Medicare for All, “You go to any damn doctor you want to go to. What’s going to change is the wording on the card that you have.” Harris too made this case on CNN, saying, “The idea is that everybody gets access to medical care,” she explained. “You don’t have to go through the process of going through an insurance company, having them give you approval, going through the paperwork, all of the delay that may require.”

But maybe that case isn’t enough to overcome the profound loss aversion people feel thanks to the health care status quo. Because our current private insurance plans all come with limited provider networks, changing plans right now really does threaten to throw a monkey wrench in your health care treatment by cutting your doctors out of your new network. It would be a tragic irony if the health insecurity of our current ramshackle system turns replacing that system into an inescapable catch-22.   

But that’s the tightrope that several generations of progressive health reformers have walked: attempting to create a more sensible and universal health care system while inflicting as little disruption as possible on the already insured. Tumbling across that trip wire is what burned Bill Clinton’s health reform attempt in the early 1990s. The trauma of that failure is what led Barack Obama to over-promise: “If you like your plan, you can keep it.”

Current polling bears this out still. The topline popular support for Medicare for All quickly collapses when people are told that it would eliminate private insurance coverage. But what large majorities — to the tune of 70 percent of the country — do support Medicare for More: giving people the voluntary choice to opt into a Medicare-type public insurance program.

That might be a best-of-both-worlds approach. Progressives could take solace in having a strong public option to serve as default fallback health coverage for everyone, while those who like their current plans can keep them. Not to mention, in many other countries with “single payer” systems, private insurers still play an active role.

The Medicare for More public option seems to be the real health care plank among most of the Democrats’ 2020 field. After her town hall backlash, Harris noted that she has co-sponsored a number of bills providing public options through Medicare or Medicaid. So too have many other prospective Democratic candidates. Elizabeth Warren summed it up well when asked about her vision for American health care: “I’ve signed onto Medicare for All. I’ve signed onto another [bill] that gives an option for buying into Medicaid. There are different ways we can get there. But they key has to be always keep the center of the bulls eye in mind. And that is affordable health care for every American.”

So what role is Medicare for All playing in the progressive health care debate? Is it a serious proposal for an immediate social democratic revolution? Is it a long-term aspiration? A wistful ideal for a tabula rasa state? A way of meeting a perceived progressive litmus test in a crowded primary?

Or maybe it’s just marking out the left flank of the Overton Window. That’s what Bonnie Castillo, the executive director of National Nurses United, seemed to suggest when she criticized watered down versions of Medicare for All. “Don’t start bargaining with yourself and undermine yourself,” she told Politico. “The opposition, the insurance companies and pharma, they will come out against anything, whether it’s a half-measure or even a one-quarter measure. That’s why we have to aim high.”

Maybe Medicare for All will prove to be a useful negotiating tactic. But you can’t wish away loss aversion among the insured, or the elimination of millions of jobs for people employed in the health insurance industry and medical billing. The physics of American health care politics persist, like it or not. Kamala Harris was just the latest to learn that the hard way.

Anti-Obamacare litigation goes further through the looking glass

The long and wild history of anti-Obamacare legal chicanery took yet another giant leap through the looking glass on Friday. After Republicans in Congress face-planted in their effort to repeal the Affordable Care Act, their Republican brother-at-arms in a federal district court in Texas opted to finish the job for them, striking down the law in its entirety based on legal reasoning so spurious that it’s making even the most ardent health reform opponents blush. The decision in Texas v. United States — so embarrassing on the merits it even made the staunchly conservative Wall Street Journal editorial page blush — is a definitive sign that the endless legal campaign against the ACA has kept pace with the downward spiral of conservatism in the Trump era.

Judge Reed O’Connor is a notoriously partisan judge appointed by President George W. Bush. He’s also the only fully active judge sitting in federal district court in Fort Worth, Texas, making his courtroom an open invitation for forum-shopping lawyers with a right-wing axe to grind, like the Texas Attorney General. Judge O’Connor has previously used his perch to block Obama administration regulations protecting transgender students and patients.

He’s now proven to be a willing and eager partner in the joint venture between the Trump administration and Republican state attorneys general to repeal Obamacare in court. The theory is that Obamacare was rendered unconstitutional after Republicans used the 2017 tax bill to zero out the tax people for people who go without health insurance. The red state AGs argued — and Judge O’Connor has now agreed — that because Chief Justice Roberts upheld the individual mandate in 2011 only as a “tax,” the mandate is now unconstitutional; and because the mandate was essential to the ACA, the rest of the law — everything from its protections for people with preexisting conditions through its Medicaid expansion — must fall, too.

There’s a pretty gaping flaw in that logic: the 2017 Congress already decided that the individual mandate is not essential to Obamacare when it opted to repeal only the mandate while leaving the rest of the law in tact. However unwise that may have been as a policy choice, Congress affirmatively manifested its intent that it wanted a mandate-less ACA on the books. The court didn’t have to guess at how much of the law Congress would retain without the mandate (what’s known in legalese as “severability”) because Congress had already demonstrably, affirmatively told it.

Not so! said Judge O’Connor. In distinctly Trumpian logic, O’Connor contorted his legal analysis to arrive at his desired political result through a potent cocktail of high-grade gaslighting and baloney sliced nearly metaphysically thin. O’Connor denied that Congress even repealed the individual mandate — literally writing, “consider what Congress did not do in 2017—or ever. First and foremost, it did not repeal the Individual Mandate.”

He arrived at that conclusion by attempting to separate the individual mandate from its enforcement penalty, insisting that Congress repealed the penalty (by lowering it to $0) but left the mandate intact. (That’s a quirk of Congress enacting the Republican tax bill through budget reconciliation.) But the two are one in the same: a mandate without a penalty isn’t a mandate at all, but really just an empty-holstered suggestion.

Undeterred, Judge O’Connor forged on, ultimately arriving at this alternative-reality whopper, stating that the 2017 Congress “intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA.” That would be news to Donald Trump, who a year ago ebulliently told a Cabinet meeting, “The individual mandate is being repealed. [. . .] When the individual mandate is being repealed, that means Obamacare is being repealed.” It would also be news to the Republican Congress that spent a decade trying to do the exact opposite of “preserv[ing]” what’s “essential to the ACA” through repeated repeal votes.

Judge O’Connor’s theory seems to be that the 2017 Congress inserted a poison pill into the law — by leaving the unconstitutional husk of the individual mandate in place — that would take down the entire law in court. That’s the same Congress that tried and failed for a year to repeal the ACA in whole or in part, and could never assemble the votes. It’s a theory that defies reality.

His decision will have no immediate impact because he only issued what’s known as declaratory relief, rather than immediately enjoining the law. His decision is therefore best read as an op-ed screed. It will also be appealed. Experts are confident that the decision won’t hold up in the Fifth Circuit or the Supreme Court — that it’s reasoning is too outlandish for more responsible conservative judges to embrace, and Obamacare will go on to live its twelfth* life (I’ve lost track at this point).

I’m not so sure. We’ve seen past legal challenges to Obamacare go from “off the wall” to “on the wall” with terrifying speed, thanks to an ideological commitment among conservatives to undoing universal health care that cuts across all branches of government. The first round of litigation brought against the individual mandate — literally from the moment the ACA was signed into law — packed frivolous talk radio arguments about Big Government trampling on individual liberty into an invented limitation on Congress’s authority to regulate commerce. That gained enough traction among Republican Party elites and judges to come within a single vote of taking down the law at the Supreme Court in NFIB v. Sebelius.

In 2014, conservative lawyers seized on some inartful phrasing in the law to connect the dots to a supposed congressional scheme to coerce the states to run their own online health portals, under the supposed threat of cutting off insurance coverage for millions of their residents and inflicting insurance market meltdowns within their borders. That longshot bid too wound its way to the Supreme Court as King v. Burwell, winning the votes of three conservative justices.

Understanding the Obamacare cases is an exercise in tracing the descent of the broader conservative movement. NFIB was an exercise in the self-defeating knee-jerk libertarianism of the Tea Party era. King was a conspiratorial ruse apiece with the right’s angry, out-of-power pre-Trump years. And now Texas epitomizes the willful self-delusion and alternative realities of conservatism under Trump.

Up to this point, legal conservatism has been more than willing to follow movement conservatism along down this long, tortured descent. As higher and higher courts get their hands on Texas v. United States, we will learn just how deep the corrosion goes.

The Dignity Party

In the New York Times, David Brooks accuses the Democrats’ midterm campaign of failing to rise to the occasion to meet the threat of Trumpism. “Trump and the other populists have transformed the G.O.P. and thrown down a cultural, moral and ideological gauntlet,” Brooks writes. “So how, at this crucial moment in history, have the Democrats responded?” They’ve run on “health care, health care, health care,” according to a Democratic strategist.

Brooks argues that the moment calls for something bigger than kitchen-table politics—a full-throated, cohesive ideological answer to Trump.   He may be right, but he’s probably one election cycle too early.

On the ground in swing districts, the Democratic message has been dominated by health care. That’s because for many middle-class voters, one of the major consequences of Trump’s power felt in their lives has been the unrelenting threat to the Affordable Care Act, the Medicaid expansion, and protections for friends and loved ones with preexisting conditions.

This is fundamentally a question of strategy. Democratic candidates see their path to victory running through a straightforward appeal to the tangible issues on voters’ minds. But that, of course, falls far short of the facial challenge to Trumpism that Brooks craves. “[T]he Democratic campaign is inadequate to the current moment,” he asserts. “It offers no counternarrative to Trump, little moral case against his behavior, no unifying argument against ethnic nationalism. In politics you can’t beat something with nothing.”

It’s true, Democrats do need a competing narrative to counter Trump. The most successful political campaigns and movements tell a story about American history and voters’ place within it, giving people agency to shape that story. Boiled down to its essentials, Trump’s narrative is as follows: America used to be great; now it’s not (because of bad elites and dangerous immigrants and minorities); I can make it great again. It’s a narrative grounded in the comfort and familiarity of nostalgia.

The Democratic answer to Trump’s backward-looking narrative must be a forward-looking one. Where Trump sees American greatness achieved and lost, progressives see American greatness as a project—one that each generation can come closer and closer to achieving. The founding American promise—of equality, of life, liberty, and the pursuit of happiness—is a utopian aspiration for a society where individual dignity is freed of the shackles and hierarchies of the Old World. That means shedding the inherited castes that have afflicted most other societies on Earth to ensure that regardless of one’s race, religion, sex, or sexuality; regardless of whether you were born into wealth or into poverty; regardless of whether you were blessed with good health or had the misfortune of illness—that all people can live lives of dignity and author their own fate.

This American story is one of progress in fits and starts toward achieving that promise. It’s the step-by-step march toward shedding those shackles; toward granting the dignity of freedom and equality to all. Progressives ask voters to join in helping achieve our country, to take the next step forward in our history toward dignity and liberation for all, so that all Americans are truly free to pursue their own happiness.

Where Trump’s narrative is one of loss and nostalgia, the progressive narrative must be one of hope and promise. If Trump’s narrative is embodied in “America First,” the progressive narrative can be described as “A More Perfect Union.” The progressive iteration takes our founding ideals seriously, and reads a social democratic tradition into the long struggle to meet those ideals. That’s the tradition of FDR and Lyndon Johnson – of the New Deal and the Great Society wielding the power of government to realize greater, more meaningful liberty for more people.

Perhaps Democrats are missing an opportunity to counter Trump’s narrative, as Brooks says. But the focus on health care alludes to the progressive narrative: protections for the sick and those with pre-existing conditions are among the most recent major achievements in the cause of human dignity, and the source of great political struggle and backlash. Republicans have insisted on trying to roll back these gains root and branch. It only makes sense that Democrats would mobilize voters around protecting their hard-fought dignity in response.

The emphasis on health care ought to lead to a smooth segue to a broader progressive narrative about achieving the core American promise of dignity for all. My sense, unlike Brooks, is that can wait until 2020, when a single Democratic messenger will face Trump head-on. The question, of course, will soon become who should be the one to deliver that narrative.

Why FDR’s court-packing plan “failed”

Among the most devastating long-term impacts that Donald Trump’s wretched presidency will have on the United States is its entrenchment of movement conservatism on the Supreme Court. That has me and others thinking about how a future progressive president and Congress can overcome a clash with a jerry-rigged conservative Court.

Congress has the power to rebalance the Court by adding new justices. That power was most infamously invoked by Franklin Roosevelt in 1937 in his doomed “court-packing” plan. Any effort to reinvigorate this vital legislative check on the Court’s power must learn from the missteps of Roosevelt’s effort.

The basic narrative of the rise and fall of Roosevelt’s court-packing plan comes from Jeff Shesol’s excellent Supreme Power: Franklin Roosevelt vs. the Supreme Court. Throughout his first term in office, Roosevelt watched helplessly as the Supreme Court invalidated massive cornerstones of his Great Depression relief agenda. A conservative majority deeply committed to protecting the freedom of contract and resistant to government efforts to regulate the economy struck down the National Industrial Recovery Act, the Agricultural Adjustment Act, regulations of the coal industry, and state minimum wage laws.

In February 1937, Roosevelt proposed legislation that would increase the size of the Court, allowing him to appoint one new justice for every current justice that failed to retire before reaching age 70. This would have allowed him to quickly appoint as many as six new justices.

On the heels of his landslide reelection, Roosevelt was politically dominant in early 1937. But by July, his Court reform plan was dead.

What happened? There are lessons to be learned from Roosevelt’s surprising legislative defeat:

Don’t spring Court reform on the public. Even though Roosevelt’s frustration with the Supreme Court was clear by the end of his first term, he didn’t campaign on adding seats to the Court. He feared that this would give the Republicans an issue to campaign on in opposition. Instead, he waited until after reelection to propose his Court plan. This caught the public off guard, and left them divided and confused. It also deprived the Court plan of a claim to a popular mandate, sapping it of political force and legitimacy in Congress.

Keep a variety of Court reform options on the table. Many different ideas for dealing with the conservative Court had percolated in Congress for years. In 1924, Progressive Party presidential candidate Sen. Robert LaFollette ran on a proposed constitutional amendment allowing Congress to overrule bad Supreme Court decisions. Others proposed constitutional amendments requiring a super-majority of the Supreme Court to overturn an act of Congress. Still others proposed to limit the Court’s jurisdiction or to strip its power of judicial review of acts of Congress entirely.

Rather than work with Congress to build on one of these preexisting fixes, Roosevelt imposed his own plan on legislators. And Roosevelt kept Congress entirely in the dark while he developed his Court plan. This backfired badly. There was no buy-in or investment from congressional leaders, leaving ample space for a rebellion to foment.

Level with the public about the real reasons we need Court reform. It was clear to everyone that Roosevelt’s clash with the Court was a philosophical one: an ideological Supreme Court was handcuffing Roosevelt’s ability to fix the economy. Yet the president opted to hide the true justification for his Court plan in his public messaging. Instead, he chose to publicly justify the Court plan on technocratic administrative grounds, arguing that the elderly Court could not keep up with its caseload, and needed more justices.

This too-cute obfuscation was a mistake. As Warner Gardner, the young administration lawyer tasked with writing the Court reform bill, observed, “ a constitutional confrontation that men could fight for” became a “trick,” an “effort to market deceit” thanks to FDR’s spurious justification. Solicitor General Robert Jackson also urged Roosevelt to emphasize the “fighting issues” of the Court’s ideological and extreme reasoning. Eventually, Roosevelt himself admitted that it had been a mistake not to lead with what he called the Court’s “real mischief.”

Court reform triggered underlying racial fears among Southern Democrats. Congressional Democrats held dominant majorities during Roosevelt’s presidency. But these majorities depended on the party’s wing of powerful Southern segregationists. Southern Democrats feared that a Court packed by Roosevelt’s justices would vote to end segregation.

While Western and Midwestern senators like Burton Wheeler led opposition to the Court plan, the Southerners were crucial to sustaining opposition. Opposition leaders planned to attach an anti-lynching poison pill amendment to court-packing bill to get Southern Democrats to join filibuster. This was a reminder to Southerners that a Roosevelt court could someday uphold a federal anti-lynching law.

All of this made the court-packing fight a “struggle for survival” for segregationists, and a “last stand for the Confederacy,” Shesol writes. The court-packing fight marked the beginning of the partisan realignment that gradually occurred over the ensuing four decades, as conservative Southern Democrats first split with the Democratic Party and eventually fully migrated to the Republican Party.

Because court-packing failed in 1937, it would be nearly another two decades before the Supreme Court began challenging segregation. In a parallel universe where Roosevelt succeeded, however, segregation could have been taken down much earlier.

Roosevelt’s court-packing plan actually succeeded. The court-packing bill ultimately had the air sucked out of it thanks to external events – and capitulations. Most important was the famous “switch in time” by swing justice Owen Roberts, who joined Chief Justice Charles Evan Hughes in siding with the Court’s three liberals to sustain Roosevelt’s New Deal legislation. First, in late March 1939, that configuration banded together to uphold state minimum wage legislation in West Coast Hotel v. Parrish, an about-face from just a year earlier when the Court struck down a similar law.

Next, in April, the same justices upheld the National Labor Relations Act in NLRB v. Jones & Laughlin Steel. The next month, the Court upheld FDR’s Social Security Act in a pair of cases. Those decisions have widely been seen as a strategic surrender by Roberts and Hughes, who “evolved” their views on economic legislation to stave off FDR’s attempt to overpower the Court.

The final nail in Court reform’s coffin came when Justice William Van Devanter, one of the Court’s conservatives, announced his retirement in June. This gave FDR his first chance to appoint a new justice since taking office.

Ultimately, pressure from FDR’s court-packing plan succeeded in failure. FDR achieved his desired ends despite his legislation crashing and burning. The court-packing plan sparked a constitutional revolution, where the Court rapidly reconsidered old dogma on the constitutionality of economic regulation. And thanks to a series of ensuing retirements, by 1940, Roosevelt had appointed five of the Court’s nine justices.

Roosevelt saw court-packing as necessary to make government work and to stave off tyranny. FDR warned that in 1937, “To stand still was to invite disaster.” The Great Depression had devastated millions of people. Tyrannical governments were taking hold abroad. Unless democracy in the United States could be made to work for the “forgotten man at the bottom,” he said, there would be a social and economic collapse, which could set the stage for a tyrant here, too. Government dysfunction caused by a conservative Supreme Court that refused to get with the times was not just a political foe, but an existential threat to American democracy.

We now see the type of demagogue that can win power when voters feel like government isn’t working for them. Progressives and institutionalists alike who wish to avoid another Trump must be sure that a Supreme Court unduly packed with conservatives does not stand in the way of making government responsive to the needs of the people and the crises of our time, whatever it takes.

 

How economic rights almost became part of the Constitution

President Franklin D. Roosevelt’s Second Bill of Rights has come back into vogue as a lodestar for the modern progressive imagination. And while FDR’s vision of robust social and economic rights has inspired progressive policymakers for generations, many have forgotten just how close the U.S. Supreme Court came to incorporating many of those rights into our existing Constitution.

Roosevelt proposed a Second Bill of Rights during his State of the Union address in 1944. He said that the country had come to recognize that economic security is a prerequisite for true individual freedom; that certain inalienable economic rights were necessary to buttress the inalienable political rights protected by the nation’s Founders.

Roosevelt’s Second Bill of Rights included:

• The right to a useful and remunerative job.
• The right to earn enough to afford food, clothing, and recreation.
• The right to be free from unfair competition and monopolization.
• The right to housing.
• The right to health care.
• The right to security from the economic fears of old age, sickness, accident, and unemployment.
• The right to a good education.

While these rights have long served as normative aspirations for various progressive movements, they never have been adopted into the Constitution to sit along side the actual Bill of Rights. Nor have they been otherwise transformed into enforceable legal rights, for the most part.

But there was a time when much of the Second Bill of Rights looked like it was on track to become part of our constitutional order. As Cass Sunstein explains in his book on the Second Bill, there was a brief period in the 1960s when the Supreme Court came very close to embracing much of FDR’s constitutional vision.

Much of the credit goes to Justice Robert Jackson, a close adviser to the New Deal before he was named to the Supreme Court. In the 1941 case Edwards v. California, a plaintiff challenged the constitutionality of a California law that criminalized bringing an indigent non-resident person into the state of California. The Supreme Court struck down the law as a barrier to interstate commerce.

In a concurring opinion, Justice Jackson argued that the law actually violated Edwards’ Fourteenth Amendment rights because it discriminated on the basis of his wealth status. “We should say now, and in no uncertain terms, that a man’s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States,” Jackson wrote. “The mere state of being without funds is a neutral fact—constitutionally an irrelevance, like race, creed, or color.”

Jackson considered laws that classify people by income level to be comparable to those that classify based on race, religion, or ethnicity. That’s a big deal, because those latter distinctions receive the highest degree of protection under the Constitution – what’s known as “strict scrutiny.” Laws that discriminate on those bases are almost invariably struck down by courts.

Jackson’s opinion was not the Court’s majority opinion, and his concurrence remained siloed for years. Until 1956, when a majority of the Court began to faintly echo Jackson’s reasoning in the criminal law context. In Griffin v. Illinois, the Court held that the Fourteenth Amendment’s Equal Protection Clause requires states to provide trial transcripts at no cost to indigent criminal defendants appealing their convictions. “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color,” the Court held.

Then, in the landmark 1963 case Gideon v. Wainwright, the Warren Court held that the Constitution requires the states to pay for legal assistance for indigent criminal defendants. That is, the Court held that the Constitution contains a positive right requiring the government to provide an affirmative benefit to people too poor to obtain it on their own.

The Court built on Gideon to expand the state’s affirmative obligation to the poor twice more. In Douglas v. California, the Court held that the Constitution also requires the state to provide defense counsel to indigent defendants appealing a criminal conviction. And in Boddie v. Connecticut, the Court held that the state has a similar affirmative obligation to ensure poor people have legal counsel in divorce proceedings.

In 1966, the Court held that discrimination against the poor was unconstitutional when it infringed upon the fundamental right to vote. In Harper v. Virginia Board of Elections, the Court struck down a $1.50 poll tax. The Court held that “Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.” It cited Justice Jackson’s concurring opinion in Edwards, along with the Court’s criminal justice opinion in Griffin. “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause,” the Court observed, “do change.”

The Court also seemed to find that the Constitution provides some level of protection from destitution. In Shapiro v. Thompson, Sunstein writes, “the Court seemed to come close to saying that the Constitution conferred a right to welfare benefits.” That case involved a California law that restricted welfare benefits from those who had lived in the state for less than one year.

The Court struck down the law on the grounds that it penalized people exercising their constitutional right to travel. It penalized travelers by denying them “welfare aid upon which may depend the ability of the families to obtain the very means to subsist — food, shelter, and other necessities of life,” the Court wrote, in apparent recognition of welfare’s importance to sheer human survival.

For similar reasons, the Court invalidated an Arizona law that denied new arrivals publicly funded non-emergency medical care until they had lived in the county for a full year. In Memorial Hospital v. Maricopa County, the Court applied its precedent in Shapiro and held that it is “clear that medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance.”

The high-water mark of the Court’s constitutional protections for the poor came in Goldberg v. Kelly. In that case, the Court held that the poor had property rights to welfare benefits, and such benefits could not be withdrawn without a due process hearing. “From its founding,” the Court held, “the Nation’s basic commitment has been to foster the dignity and wellbeing of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”

The Court held that welfare benefits were essential for the poor to realize full citizenship and participation in their communities. “Public assistance . . . is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,’” the Court said, tying the provision of welfare to the very preamble of the Constitution.

Goldberg was decided in 1970. Yet the budding constellation of constitutional rights for the poor was already about to roll back. In 1968, Richard Nixon edged out Hubert Humphrey by about 500,000 votes to win the presidency. As luck would have it, Nixon was able to appoint four new Supreme Court justices in just five and a half years in office.

That was enough to halt the momentum toward broader social and economic rights under the Constitution. In Lindsay v. Normet, for example, the new, more conservative Supreme Court rejected a constitutional challenge against Oregon’s state eviction law, ruling that the Constitution provided no guarantee of decent housing. “[T]he Constitution does not provide judicial remedies for every social and economic ill,” the Court held. “We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality[.]”

The decisive turning point came in the 1973 case San Antonio v. Rodriguez. There, the Court rejected a constitutional challenge to grave funding disparities in Texas’s school financing system, where per-pupil expenditures were significantly higher in wealthy districts than poorer districts. The Court rejected the argument that this system discriminated against the poor, and rejected the notion that education is a fundamental right under the Constitution.

The Court was troubled by the unstoppable implications of calling education a fundamental right. “How, for instance,” the Court asked, “is education to be distinguished from the significant personal interests in the basics of decent food and shelter?”

A different Court might have followed that train of logic to decide that, yes indeed, all of the above are constitutionally-protected rights. Anyone who is deprived an education, housing, food, or shelter has been denied full citizenship and equal protection under the law.

But the lesson here is that elections have consequences. Had Humphrey eked out a half million more votes in a few key states in 1968, we could be living under a very different set of constitutional interpretations today. “It is not too speculative to suggest,” Sunstein writes, “that if Humphrey had been elected, aspects of the second bill would have been a solid part of the constitutional landscape.”

A Humphrey-inflected Court could have pieced together a mosaic of decisions like Edwards, Shapiro, and Goldberg to recognize a right to the “basic necessities of life”—like healthcare, a non-poverty income, decent housing, and sustenance—flowing from the Constitution’s guarantees of citizenship and equal protection, and its commitment to “foster the dignity and wellbeing of all persons within its borders.” Those decisions had all the makings of building blocks for something much bigger.

Instead, that unfinished constitutional project has largely languished in a jurisprudential no-man’s-land under nearly half a century of conservative dominance on the Supreme Court. But not entirely. In the 1982 case Plyler v. Doe, Justice William Brennan cobbled together a Supreme Court majority to hold that undocumented immigrant children have a right to public education. And in 1996, Justice Ruth Bader Ginsburg wrote for the Court in M.L.B. v. S.L.J. holding that the Constitution prevents states from denying an appeal from an order terminating a parent’s custody rights to parents too poor to pay a court fee.

These decisions are still out there. They have been neglected, but not reversed. Progressives should pick them up to be resurrected for another day, perhaps far in the future, when the Court is more amenable to expanding the constitutional rights of the poor. After all, conservatives and libertarians have long been at work rehabilitating a long-abandoned line of cases that would do the opposite, enhancing the rights and power of the wealthy and corporations.

Absent a major act of political hardball, the project of incorporating FDR’s Second Bill of Rights into constitutional law will likely remain frozen in time for years, if not decades. But old theories of constitutional law never truly fade away. They hibernate, waiting for the moral spirit of the times to swing their way.

Democratic hardball and the democracy agenda

Progressives are gradually coming to grips with the true scale of reform and reconstruction that the country must implement in the wake of Donald Trump’s presidency. At the Washington Monthly, editor-in-chief Paul Glastris writes:

“The fact that America now has only one party committed to small-d democracy changes everything. It’s no longer acceptable for Democrats to look at politics as a way to win the next election so as to jam through a bunch of their preferred policies before the Republicans inevitably take back power. They must instead see the purpose of politics as building sustained power for Democrats, period—but, unlike the other side, they must do this in part by strengthening the democratic process, not by undermining it.”

Indeed. Democrats are coalescing around an increasingly ambitious substantive platform as they ready for 2020 – Medicare for All, a federal jobs guarantee, free college, a $15 minimum wage, and other bold domestic policies. But they must also adopt an equally ambitious procedural platform to expand the franchised electorate and to level a political playing field badly tilted toward emboldening a modern Republican Party unfit to govern.

Call it a “democracy agenda” – an agenda grounded in finally granting full and equal voting rights and representation to U.S. citizens in the District of Columbia and Puerto Rico; in enacting a New Voting Rights Act that defends against the most pernicious voter suppression laws and affirmatively makes it easier to register to vote and cast a ballot; in giving the people a voice to add seats on the Supreme Court to rectify its current anti-democratic (small-d) lurch.

Those are reforms embraced by political scientist David Faris in It’s Time to Fight Dirty. Faris also proposes even more audacious reforms: breaking California into seven smaller states, and switching to proportional representation in the House.

Giving full political representation to D.C. and Puerto Rico would add four new Senate seats – which would likely be filled by Democrats. Protecting and supporting the right to vote would make it easier for more people to vote – which would likely work to Democrats’ favor. Rebalancing the Supreme Court would allow a Democratic president to tip a 5-4 conservative majority (*if Brett Kavanaugh wins confirmation) into a 6-5 liberal majority.

These might all smack of hardball entrenchment tactics. But the political effects are incidental to the primary impact, which is to expand the franchise and increase democratic representation in American government.

Moreover, if you believe in the moral urgency of the broader progressive substantive agenda, then these procedural steps are vital. Every year that progressives are locked out of a governing majority is a year that the American people are left without progressive reform to expand health care, environmental protection, higher wages, and other basic dignities. The current “back-and-forth” between Republican-dominated politics and Democratic-dominated politics, Faris writes in It’s Time to Fight Dirty, “inevitably lead[s] to worse and worse outcomes for America’s poor and middle classes, and invite[s] true planetary disaster.”

As Glastris points out, over the last 27 years, Democrats have only controlled both the White House and Congress at the same time in four of those years. Those are two fleeting blips at the beginning of the Clinton and Obama presidencies where it was possible to advance a progressive agenda. And progressives controlled the Supreme Court in neither of them.

Democrats can no longer afford to passively wait on the political pendulum to swing their way. The urgency of the country’s challenges, coupled with the radical nihilism of the GOP, demand something different.

In defending the case for Democratic reform of the Supreme Court, I argued:

“The Democratic president that follows Trump will not have a normal presidency. It will be one of reconstruction — of truth and reconciliation. To prove that America is truly better than this, Trump cannot be treated as politics as usual, no different than any other departing president. His presidency must be rendered a shameful aberration; a stain; a grotesque mistake that cannot happen again.”

The same principles apply to the broader democracy agenda above. Trump’s presidency has depended on a restricted electorate. We know, for example, that Wisconsin’s strict voter ID law discouraged voters and may have helped toss that state to Trump. And the absence of political representation for D.C. and Puerto Rico gave Trump an artificial slim Republican majority in the Senate, rather than a probable slim Democratic majority. That alone is the difference between a Senate that advances a right-wing agenda of plutocracy, healthcare repeal, and presidential rubber-stamping, and one that stands up to Trump and instates real accountability.

In the conclusion to It’s Time to Fight Dirty, Faris reminds us that “the undeniable truth is that we [are] already living through a monumental political crisis.” It’s one that progressives cannot afford to squander by letting real reform slip away. Our political crisis calls for a “Third Reconstruction,” as Faris puts it. Crucially, “[t]he most important thing progressives can do to help transform the United States into a more equal, just, and prosperous society,” Faris tells us, “is to win elections.”

To govern in 2021, progressives must rise to the occasion and realize that fundamental truth. Some times in American history call for hardnosed reconsiderations of our political system – how it has been perverted through inertia and deliberate mischief over the years; how it is amplifying select voices and muffling others. Call it hardball if you want. But this is one of those times.

Share the windfall

President Donald Trump and congressional Republicans gifted U.S. corporations a massive financial windfall last year.  The Tax Cut and Jobs Act of 2017 slashed the top tax rate on corporations from 34 percent to 21 percent, handing big businesses a pile of extra cash to spend as they saw fit.

Trump claimed that the tax cut would be “rocket fuel” for the American economy.  But that fuel has largely fizzled out before reaching workers’ pockets.  Real wages have barely budged over the last two years despite steadily declining unemployment.  Aside from a handful of one-off bonuses, the tax bill has had no noticeable effect on workers’ wages.

So where is the cash left over from the corporate tax cut going?  Increasingly, into the pockets and portfolios of executives and shareholders.  According to Politico:

Some of the biggest winners from President Donald Trump’s new tax law are corporate executives who have reaped gains as their companies buy back a record amount of stock, a practice that rewards shareholders by boosting the value of existing shares.

A POLITICO review of data disclosed in Securities and Exchange Commission filings shows the executives, who often receive most of their compensation in stock, have been profiting handsomely by selling shares since Trump signed the law on Dec. 22 and slashed corporate tax rates to 21 percent. That trend is likely to increase, as Wall Street analysts expect buyback activity to accelerate in the coming weeks.

Stock buybacks (which were illegal until 1982) are when corporations use their stockpiles of cash to repurchase their own stock.  This inflates the value of their stock, juicing the compensation of their executives, too.

This is great for the shareholder class, but does next to nothing for workers.  It’s a symptom of a larger trend where record-shattering corporate profitability increasingly fails to produce higher pay for workers.  More and more, the corporate bounty has been hoarded the benefit of executives and shareholders, with barely a trickle for employees.

How do we combat this?  Senators Cory Booker and Bob Casey have proposed a “Worker Dividend Act.”  Under their bill, corporations pursuing massive stock buybacks would have to share the wealth with their employees.  Here’s how it would work:

The total value of a company’s obligation would be calculated as the lesser between the total amount of that year’s stock buybacks and 50 percent of the company’s profits above $250 million. That total obligation would then be distributed equally to each of the company’s employees.

To see how this would play out, consider the example of Oracle, which announced it would repurchase $12 billion worth of its own shares.  That’s nearly 75 percent of its total earnings last year, which totaled over $16 billion.  (And that’s just about par for the course, as Sen. Booker notes: “[C]ompanies on the S&P 500 dedicated 91 percent of their total earnings to stock buybacks and corporate dividends, leaving just nine percent for things like raises for workers[.]”)

Under the Booker-Casey bill, Oracle would have owed its U.S. employees around $8 billion (the lesser of its $12 billion buyback and 50 percent of earnings over $250 million).  That pool of money would then be split equally among the company’s American employees.  Oracle had about 138,000 total employees around the world.  That means its U.S. employees would be in line to receive $60,000 or more each.

Ideas like the Worker Divided Act would help correct the absurd power imbalance between corporations and workers in the twenty-first century economy.  Workers deserve their fair share of the massive wealth sloshing around corporate coffers, not mere pennies on the dollar.  Only government policy can make sure they get it.

Trump is trying to repeal Obamacare in court

Last week, the Department of Justice filed a legal brief announcing that it will not defend the Affordable Care Act in court.  That legal maneuver amounts to a transparent attempt by the Trump administration to try to repeal Obamacare yet again.

Conservatives have spent nearly a decade sniping at Obamacare through targeted litigation.  The ink was barely dry on Barack Obama’s signature on the law before fourteen Republican attorneys general sued to invalidate it.  Eventually, a lawsuit brought by a Koch brothers-funded business lobby made its way to the Supreme Court, claiming that the law’s requirement that everyone purchase insurance was unconstitutional.

In that case, Chief Justice John Roberts cast the deciding vote to save Obamacare’s individual mandate.  He thought the mandate went beyond the limits of Congress’s authority to regulate interstate commerce, but was valid as a tax.

Fast forward to 2017.  Congressional Republicans spent the better part of a year trying and failing to repeal Obamacare.  When they gave up and passed a standalone tax cut on the rich instead, Republicans slipped in a repeal of the individual mandate in order to nick Obamacare.

But they didn’t technically strike the individual mandate from the books.  Instead, Republicans simply zeroed out the mandate’s tax penalty.  So as of January 1, 2019, the individual mandate is “enforced” with a $0 penalty for skipping out on health insurance.

A new Obamacare lawsuit brought by Texas and other red states takes yet another swing at the law. And now the Trump administration’s Department of Justice has weighed in to argue that the individual mandate has become unconstitutional.  The argument is that because the individual mandate no longer generates any revenue in the wake of the tax bill, it can no longer be considered a tax.  And if it’s not a tax, then it has no constitutional authority.

But the administration doesn’t stop there.  Even worse, it argues that if the individual mandate falls, then Obamacare’s rules prohibiting discrimination against people with preexisting conditions must fall, too.  These protections that guarantee insurance access and fair prices should be struck down with the ghost of the individual mandate, according to the administration.

As a legal matter, this argument is utterly frivolous.  It’s a perversion of a legal doctrine known as “severability.”  When a court strikes down one provision of a law, it generally tries to leave alone other “severable” parts of a law in order to preserve as much of Congress’s work as possible.

Turning that doctrine on its head, the administration argues that Obamacare’s protections for people with preexisting conditions are not severable from the individual mandate, pointing to congressional findings in the Affordable Care Act that the provisions were closely connected.  But the health care program known as “Obamacare” is no longer derived just from the Affordable Care Act.  Rather, it comes from the Affordable Care Act as amended by the Donor Relief Act of 2017.  Congress itself—however unwisely—opted to defang the individual mandate and leave the rest of Obamacare alone.  The courts have no severability judgment to make, because Congress already made it.

And there’s a reason Congress didn’t touch the rest of Obamacare: it didn’t have the votes.  Senate Republicans pursued Obamacare repeal solely through budget reconciliation because they didn’t have enough votes to defeat a Democratic filibuster.  Reconciliation is limited solely to legislation that has an impact on the budget.  That constraint precluded Republicans from even considering repealing Obamacare’s provisions guaranteeing people with illnesses the right to purchase insurance.

So the administration is trying to do through the courts would it could not get through Congress.  It’s a backdoor attempt to saw off more of Obamacare than Congress could ever bear.

Of course, the Department of Justice’s refusal to defend Obamacare is also a stunning betrayal of the rule of law.  “[T]he Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense,” law professor Nicholas Bagley writes.  “This brief puts that commitment to the torch.”

Bagley also notes that just hours before the Department of Justice submitted its brief, three career attorneys at the Department withdrew from the case.  That’s typically a sign of dissension among the legal professionals within the Department not wanting their names attached to a frivolous brief. That left only Trump political appointees signing the brief—including Acting Assistant Attorney General Chad Readler, who Trump just picked to serve as a federal appellate judge.

Trump and his congressional Republican abettors have been hell-bent on soiling Barack Obama’s program expanding health care to twenty million people.  Through acts of sabotage both big and small, they’ve tried their damnedest to make the law function more poorly, even going so far as to deliberately cultivate massive premium hikes on people’s health insurance plans this year.

The galling brief filed by the administration’s hand-picked lawyers is a reminder that the conservative bloodlust to take away people’s health care has in no way dissipated after last year’s legislative failure of Obamacare repeal.  American health care simply will not be safe until Republicans are stripped from power in Washington.