Thursday, April 26, 2012

Maryland Needs a Full-Time Legislature

As fallout from the Great Annapolis Meltdown of 2012 continues to reverberate word comes that the most likely solution to the Tax Increases/Casino Gambling impasse will be to have two special sessions of the General Assembly. The first special session will take place in May and will deal only with the issue of tax increases so as to avoid the $500 million in spending cuts contained in the "Doomsday Budget." The second special session would likely be called in August and would focus on gaming.

Commenting on the possibility of two special sessions a mere two months apart Governor O'Malley said: “I think that both issues deserve a hearing and some resolution... What made this session very disappointing and frustrating by the end was considering both of those issues at the same time.”

In other words, the General Assembly attempted to walk and chew gum at the same time and wound up falling face down with its bubblicious stuck to the sidewalk.

The catastrophe that was the end of the 2012 legislative session inflicted serious damage on the reputations of the state, the Assembly, Governor O'Malley, Speaker Mike Busch, and especially Senate President Mike Miller. Calling two special session to "resolve" the issues of taxes and gaming will do nothing to restore those reputations. Quite the contrary, the possibility of two sessions raises serious questions about the judgement of those managing the Free State.

Not only could the Assembly not manage to walk and chew gum during the 90 day session with its clearly defined and constitutionally prescribed timeline, the Assembly is apparently so incompetent as a body that it cannot be trusted to deal with more than one issue during a special session - that's the message being sent.

In reality, what all of this makes abundantly clear is that Maryland needs to abandon its antiquated part-time legislature and adopt a full-time Assembly.

Yes, you read that correctly. I realize that in the face of the Great Meltdown it may seem counter-intuitive to call for a full-time legislature. Perhaps it sounds like a recipe for multiplying the failings of the current Assembly - but hear me out.

Every year the General Assembly convenes in January and embarks on a hectic 90 day legislative marathon that ends in early April. Every year there are hundreds of bills left unpassed and dozens of issues left unaddressed as the constraints of the 90 day session force everything into a position secondary to the budget. For 90 days, the voices of every day Marylanders are drowned out by a horde of lobbyists camped out in Annapolis

The Assembly has made similar adjustments in the past. In 1948 the Assembly passed a constitutional amendment requiring an annual session and the length alternated annually between 30 and 90 days. In 1964 the annual sessions were set at 70 days and then in 1970 the current 90 day session was adopted.

In the late 1960s the Assembly added to its legislative capacity by creating the Department of Fiscal Services to offer analyses of the budget and generate fiscal notes for proposed legislation. The operating budget of the Assembly was increased allowing for more staff support and other resources. In the 1970s the Assembly reasserted some of its role in budgeting - first requiring a balanced budget and then empowering itself to mandate certain expenditures. But the trek toward true professionalization ended in the 1970s.

In 1979 Maryland was ranked 14th among the states with regard to legislative professionalization, when states were ranked again in 2003 Maryland had fallen to 18th. According to the National Conference of State Legislatures, Maryland is among a large number of states that occupy a middle ground between a part-time, citizen legislature and a full-time, professional legislature.  Our neighbors - New York, Pennsylvania, and New Jersey all have full-time, professional legislatures.

Since mid-century, the trend in the states has been toward more professionalization. The Maryland Assembly's committee system, leadership structure, and professional support all tilt toward a fully professional legislature. But its 90 day session, pay, and mostly otherwise employed legislators all tilt toward a part-time legislature. The fact that its standing committees meet once per week when the Assembly is not in session show the tug of war between being a full-time or a part-time Assembly. But weekly committee meetings cannot substitute for a working legislature.

What would a full-time legislature deliver to the states? Studies show that full-time legislatures spend more time responding to constituent demands and are more responsive to constituents. Full-time legislatures are more prone to enact governmental reforms, especially with regard to personnel. Full-time legislatures demonstrate more efficient legislating (as opposed to what we just witnessed) and a greater willingness to enact more complex measures.

I know that some may recoil at the though of more efficient legislating - as it means more legislating, but consider the challenges facing the state. The population is expected to grow by 1.5 million people in the next 2 decades. Where will they live? Where will their kids be educated? Where will they work? How will they drive to work? What impact will those 1.5 million folks and their cars and houses have on the health of the Chesapeake? Will Maryland address its aging and inadequate infrastructure? Neither Beltway is sufficient to traffic demands. The Bay bridge is no longer sufficient and there is an argument to made that the state needs a new span connect southern Maryland and the Eastern Shore - creating a new connection with Virginia via that states Bay/Bridge Tunnel. The Nice bridge on 301 connecting Maryland with Virginia is no longer sufficient. Public transportation in Baltimore is inadequate - in fact public transportation in the state is insufficient and geared toward those living right on the I-495 beltway periphery.

If the Assembly is not able to address gaming and tax increases in a 90 day session how will it possibly meet the challenges awaiting the state?

Let me offer a few other defenses of a full-time legislature. Imagine making all legislators full-time employees of the state. With that full-time employment would come a full-time salary and benefits AND a ban on outside employment and "consulting." No more conflicts of interest, no more quarter of a million consulting agreements. Also, the shift from part-time to full-time and the prohibition on outside employment would cause a more than a few of the current members to retire and provide Marylanders the chance to elect some new blood. A full-time legislature would empower individual members at the expense of Assembly leaders. Now, the 90 day window gives Assembly leadership power over members via their control of the calendar. It's easier to threaten to bottle up a legislator's bills in a short session than in a continuous session. A full-time legislature would also offer a stronger counterbalance to the state's executive centered system. Maryland's governor is considered to be among the most powerful in the nation - especially with regard to budgeting. A full-time legislature would be more likely to reclaim the powers that have been ceded to the governor over time.

For these reasons and more I think it is passed the time for Maryland to adopt a full-time legislature. As part of the reforms we must also stagger our legislative elections and place Delegates and Senators on different electoral schedules. At present, every member of the Assembly and every elected member of the executive branch is elected at the same time for the same 4 year term. This denies voters the opportunity to make mid-course corrections and express support for or displeasure with a governor's or Assembly's agenda. It puts every member of the Assembly on the same election cycle making it unlikely that anything difficult or even slightly controversial will be considered in the two years prior to the next election.

We have a full-time and fully professionalized executive branch, we have a full-time and fully professionalized judiciary. Yet the one branch that is actually tasked with representing the people is part-time and disadvantaged with regard to balancing the power of the executive. If you believe in separation of powers and checks and balances it's time to raise the legislature to a status equal to the other branches.

Maryland's Assembly is in need of reform. These reforms will make the General Assembly a more effective policy making body and one more responsive to voters. The Great Annapolis Meltdown has revealed real structural problems in Maryland government. The solution cannot be one special session, or two or three special sessions. The true solution involves fundamental reforms that would bring the Assembly into the 21st Century and provide it with the governing capacity to meet the multitude of challenges facing Maryland.

I welcome your thoughts (as opposed to rants), join the discussion on Twitter #fulltimeMDlegislature

Thursday, April 5, 2012

The Garagiola Loss and the Turmoil in the Maryland Democratic Party

4/9/2012: As a quick update - any doubt about the present dysfunctional state of the Maryland Democratic party should be put to rest by looking to the mess that is the final day of the 2012 legislative session. Seeing conference committees or vote-oramas on the final day is neither new nor a sign of chaos but seeing the House Ways and Means committee meeting to discuss gambling in PG county INSTEAD of the two chambers reconciling the budget is a sign of chaos. Two party competition has a way of focusing parties....

Original Post:
Senate Majority Leader Rob Garagiola's defeat in the MD-6 legislative primary will have reverberations felt well beyond the district. In many ways, the Garagiola defeat is a sign of hard times ahead for the Maryland Democratic party. First, let's address the Garagiola loss. Garagiola is a powerful member of the state Senate and he enjoyed the backing of most of the Democratic party establishment in the state. Senate President Mike Miller drew the district for Garagiola and Steny Hoyer backed Garagiola in the primary. John Delaney was a novice politician running in a Democratic primary on a platform of fiscal conservatism. Gargiola had the backing of the unions and By all accounts, Garagiola should have won a closed Democratic primary. So why did he lose? Because Maryland's Democratic party is quite different from most other state Democratic parties.

Nationally, the Republican and Democratic parties have sorted rather neatly into two ideologically homogeneous parties. The Democrats have become the home of political liberals and the Republicans are home to conservatives. More moderate voters either loosely associate with one party or the other or eschew both. The ideological sorting is especially evident among elected officials and it began in earnest at the end of the 1960s.

But something odd happened in the Free State. In many respects the great American ideological realignment passed Maryland by. Maryland remains home to a species long thought extinct by many a political observer - the conservative Democrat. They defeated Senator Millard Tydings in 1950 and his son Joseph in 1970. They delivered the state to George Wallace in the 1972 primary. They nominated perennial candidate George Mahoney for Senator in 1952 and again for Governor in 1966 - only to see him lose both times to a moderate Republican. They nearly helped elect Ellen Sauerbrey in 1994 and embarrassed Kathleen Kennedy Townsend in the 2002 Democratic primary (Fustero who?) and in the general elected Republican Bob Ehrlich. They elected John Delaney on Tuesday night.

Democrats have long enjoyed a voter registration advantage in the state, though it has declined. In 1966 Democrats claimed 72% of the electorate, that fell to 67% in 1986, and 56% today. Republicans were 26% in 1966 and remain 27% today. Now the growing number of independent voters tend to vote Republican - suggesting they came from among the Democrats' once large conservative ranks, but conservative Democrats remain and are crucial to the party's dominance in the state Assembly. Conservative Democrats help send Kevin Kelly, John Donoghue, Johnny Wood Jr., John Bohanan, Roy Dyson, Jim Brochin, Ronald Young, John Astle, Jim Mathias and others to the Assembly from districts that could as easily elect Republicans.

The Democrats' success in Maryland has stemmed from the party's ability to maintain a balance between the interests of more rural southern Democrats an urban and suburban liberals and minority voters. For decades the party has done this well. Contrary to the claims of many Republicans, "the Peoples Republic of Maryland" has never been the overtaxed, over-regulated, business hating environment they claim. Rather Maryland's lawmakers have often found a middle ground. The balancing act has kept liberals happy and prevented conservative Democrats from casting, or defending, votes on many divisive issues. When conservative Democrats have considered a revolt, considered joining with minority Republicans, The House Speaker and Senate President could keep them in line via the power they enjoy to reward or punish.

The Assembly leadership is quite powerful in Maryland. They control committee assignments, they control access to the floor and the calendar. If you cross them they can harm your career and sideline your initiatives. Please them and they can reward you... but there are growing signs that there are limits to the rewards they can offer and power based only on the ability to punish cannot be easily maintained.

Consider some of the supposed rewards - I'll start with committee assignments. Most members of the Assembly want to advance in their careers. They want a shot at being chair, they want a shot at a significant committee. The problem is the Assembly is a body in great stasis. As chronicled by Josh Kurtz in a great piece at CenterMaryland Mike Busch is the "longest-tenured speaker in state history... Adrienne Jones... the longest-serving speaker pro tem... Kumar Barve... the longest-serving House majority leader... Joe Vallario and Sheila Hixson...the longest-serving chairmen of their respective committees." That long service may be great for some, but for others it just means no upward mobility. For Busch it means fewer prime spots to offer as rewards. Perhaps the next time Busch creates a dual committee supercommittee just to avoid the defeat of a bill he supports more members of his party will be speak up.

In the Senate, Majority Leader Rob Garagiola was supposed to be heading to Congress. Mike Miller gerrymandered a district just for him - MD-06. This would then create a reverse domino effect of open positions and allow for some advancement - even if it meant advancing to a figure head position like majority leader. It would also prove that loyalty to Miller can mean great things - like his endorsement and a tailor-made congressional district. But then a novice named John Delaney crushed Garagiola. The high powered help provided by Martin O'Malley and Steny Hoyer delivered nothing to Garagiola. The early pressure placed on Delaney by party higher ups to stay out failed. Now, Garagiola remains majority leader, so no advancements, no dominoes. Perhaps worse, the defeat calls into question Mike Miller's ability to deliver, his ability to reward. Perhaps next time a bill arises opposed by Republicans and conservative Democrats those Democrats won't fear joining a Republican filibuster. The loss also revealed schisms in the state party establishment - and it showed that even the support of the most prominent members of the party establishment is of little help. And never mind that to create the district for Garagiola, Rep. Chris Van Hollen's once safe 8th district was drastically redrawn and Van Hollen - chair of the Democratic Congressional Campaign Committee - will now have to fight for his seat. What a great way to treat a former colleague who has made the jump to Congress.

Even as Busch and Miller seem to have less to offer their members they seem to have plenty to offer themselves. Though very much ignored in the press, many members of the Assembly took note of how Busch and Miller treated themselves in the redistricting process. Speaker Busch has always been a little vulnerable in his Anne Arundel district - often finishing in a tight cluster among the top 4 candidates in a three member district. Busch remedied that situation by dividing district 30 into a new single member 30B and a two member 30A - 30A was made more Democratic and that's where Busch will run. Never mind that the division of districts into single member subdistricts was meant to be reserved for geographically large rural districts. Miller, not to be outdone, shifted his Prince Georges/Calvert county district 27 a bit further south into Calvert county to protect his own seat. But in doing so, Miller drew fellow Democrat Del. Joseph Vallario Jr. out of 27 and placed him in District 23B along with another Democrat Del. Marvin Holmes.

One may as well consider the treatment of Democratic Senator Jim Brochin. Brochin is a conservative representing a marginally Democratic district in Baltimore county. Frequently a thorn in the side of Miller and Gov. O'Malley. Brochin's district was shifted north and made decidedly more Republican so that Democrats in his district could be used to maintain the size of Baltimore City's delegation. Many members, even those who disagreed with Brochin, were shocked by the willingness to sacrifice a member to settle a political score.

Starting to get the picture? There's seemingly little to offer members other than punishment and the rewards are reserved for the leadership. What's to keep dissident voices in line? Even reliable Democratic voices are starting to openly challenge Miller.

With regard to Governor O'Malley, he was quite cautious during his first term.  After an initial special session and modest tax increases the Governor spent the rest of his term holding most spending flat and avoiding any groundbreaking or controversial issues. Then he won reelection, then he became chair of the Democratic Governors Association, then he started thinking about 2016.... then things changed.

As his national star has risen O'Malley's Maryland star has dimmed. Prior governors have used redistricting to curry favor with members of the Assembly, to win support on key initiatives. Yet last session O'Malley introduced a modestly ambitious agenda and then stood on the sidelines and watched it be ignored - ignored after winning re-election by 14 points, by an Assembly dominated by members of his own party and soon to be subject to redistricting at his hands... but nothing. O'Malley watched as same-sex marriage legislation died and then only took it up as an important issue after New York Governor Andrew Cuomo was able to push it through a divided legislature - and then it was all about 2016 and a Democratic presidential primary. But who actually delivered same-sex marriage? It was Speaker Busch and his joint committee and it was President Miller and his ability to quash any threat of a filibuster by a coalition of Democrats and Republicans (at least on this issue).

This session Governor O'Malley rolled out his most ambitious agenda ever. The elimination of tax deductions for upper income earners, the application of the state sales tax to gasoline, a state-imposed ban on septic systems, off shore wind (again)... just to name a few initiatives. But the session started with O'Malley suggesting an increase in the sales tax on the opening day - suddenly a day always dedicated to ceremony found Busch and Miller answering questions about the sales tax. As the session began President Miller quipped that he hoped O'Malley would find more time to spend in the state. The Senate essentially dismissed the O'Malley budget and created their own. Miller was unable (or unwilling) to stop the Democratic and Republican coalition that joined to filibuster the septic bill. As the 90 day session nears a close the House and Senate are far apart on the budget and the one person who seems to have no role in the negotiations? Martin O'Malley. Rather than deal with the unfinished O'Malley agenda the Assembly is wasting time ratifying the 17th amendment - in effect since 1913. And as the Assembly is caught up in a budget debate that threatens much of the rest of the O'Malley agenda the Governor is suddenly talking about increasing the sales tax again.

Maryland's Democratic party is in disarray. The Garagiola defeat simply shined a bit more light on the problem. Leadership in the Assembly are faced with restless members eager to advance, yet there is little the leadership can offer. The state faces significant challenges, but its governor has shifted his gaze to a national stage. His proposals are more about national primary politics than about Maryland politics. O'Malley is forcing the state Democratic party to defend issues that are well in-line with the national Democratic party but more left of center than the Maryland Democratic party. As party leadership is less able to hold members in line many conservative Democrats and moderate Democrats from rural and even suburban parts of the state are going to become more concerned with their electoral needs than with the party's needs.

To look at the House and Senate today based solely on numbers it would be easy to dismiss any talk of a party in trouble. But Republicans hold 43 of 141 seats in the House. A review of the election results from 2010 suggests the party came close to holding quite a few more. If Democrats cannot fix their current problems they will face, within the next two election cycles, a House with over 50 Republicans - unprecedented in Maryland. In the Senate, Republicans took a hit in 2010 falling to 12 out of 47 seats - but consider the Democratic seats in Districts 3, 29, 30, and 38 - they are far from safe and a few other districts have seen Democratic margins shrink significantly since 2006. Republicans need only 19 seats to mount a filibuster and therefore alter the power balance in the chamber. So far, Democrats have been able to capitalize on the fact that the Maryland Republican party has been an organizational mess frequently unable to field credible candidates. There are signs that is ending.

After the 2010 elections Republicans for the first time hold 50% of all local offices - though some are quick to ignore this milestone to do so is narrowminded. This marked a significant movement by state Republicans. For 2012 Republicans are fielding credible challengers (as opposed to challenges) against Dutch Ruppersberger in the 2nd congressional district and Chris Van Hollen in the 8th. Dan Bongino is likely to make a serious run against Senator Ben Cardin - none of these GOP candidates are likely to win but it's a sign of life in a party that has often offered no or only token challenges. Even in the 5th district, Steny Hoyer faced a credible challenger (as opposed to challenge) in Charles Lollar in 2010 and will again from House of Delegates Minority Leader Tony O'Donnell. Hoyer is in no danger, but Republicans are learning that the party cannot afford to let Democrats go unchallenged. Yes, Lollar lost by 30 points, but his coattails elected many Republicans to county office in St. Mary's and Calvert county in 2010 - two counties that he won easily.

To focus only on the margin of victory or loss while ignoring the effects on the rest of the ballot is a mistake made by armchair analysts in some random blogger's forum. It's not a mistake that can be made by party leadership. It's from these local offices that the party develops a bench of potential candidates for the Assembly or other offices. Republicans are realizing that to win down ballot they must run up ballot - even if it's a losing race. Even if the Democrats' real registration advantage means winning a statewide race will likely always be a losing battle for Republicans it's a battle they seem to be waking to the need to fight. In 2010 the the state GOP hung its statewide hopes on Bob Ehrlich and did not bother to mount real challenges for any other statewide office - why would voters take such a party seriously?

Now I've been writing about Maryland politics long enough to know that I will soon be the recipient of numerous e-mails telling me how the "radical, right wing, tea party Republicans" will never be competitive in Maryland. Well sorry folks, regardless of how much the national Republican party has moved right the Maryland Republican party is little more conservative today than it was in 1994 when Ellen Sauerbrey came with 6,000 votes of being governor. But the Maryland Democratic party has moved left - moved closer to the national party. That movement is placing real pressure on the state party coalition. Perhaps more challenging for the party has been the Republicans' newly discovered weapon - the internet driven petition initiative and referendum. Now, when conservative Democrats cast a vote "for the party" on a tough issue they can't rely on voters' short memories. Likewise, even if they vote against the issue the petition and referendum will keep the public focused on it - it's only a matter of time until a hot button referendum vote coincides with a state election. The presence of same-sex marriage and the Maryland Dream Act on the 2012 ballot may well boost Republican chances in the 2nd, 6th, and 8th districts and in the senate race. Imagine the impact in a non-presidential election.

The Maryland Democratic party needs a shakeup. It needs leadership that is concerned with - of all things - Maryland. Democrats claim 56% of registered voters to Republicans 27% - but the fastest growing segment of the Maryland electorate is unaffiliated voters... and they vote Republican. Maryland is not a 2 to 1 Democratic state. At best it's about 60/40 in actual voting. Democrats have been able to use their institutional advantages to turn that 60% of the vote into 70% of House seats and 75% of Senate seats. But for how much longer? If the party continues to push conservative Democrats away a 55/45 state is not impossible to imagine - and with it a power balance in the General Assembly unseen in the modern era. And O'Malley's new found passion for tax increases (in the midst of a very weak economic recovery) and opposition to rural development (sorry about the collapse in value of your family's farmland) is providing Republicans with an incredible opening - 2012 and especially 2014 will tell whether the minority party is truly ready to compete.

The party also needs to ask whether it will continue to be the uniquely Maryland Democratic party that has dominated the state since the age of Jackson (never mind that little respite during Reconstruction) or whether it will become a state-based clone of the national party. That would make the party more ideologically homogeneous and as such much easier to mange. But, like the national party it would emulate, it would be smaller and less powerful than it once was. The next Democratic governor will have a lot to do with how that internal party conversation will go. I suspect much of the primary will be dedicated to that conversation and the election may well provide the decision. I hope it's a good one.

Wednesday, April 4, 2012

Thoughts on the Maryland Primary

The headline of course is the Romney sweep of Maryland. Romney won the state and all 8 congressional districts. He won every county accept for Somerset and Garrett. Add that to the Wisconsin (and DC) win and this race is over - whether Rick Santorum wants to admit it or not. Santorum was strongest where one would expect - western MD, southern MD, and the eastern shore. But in those areas he was not a s strong as he should've been. He won Garrett but lost Allegany. In the south he ran well in St. Mary's but was crushed in Calvert, a pattern repeated on the shore. Romney won the state by 20 points and is on the cusp of 50% of the vote in a 4 man race. Maryland delivered the nomination to Romney.

In the Senate contest between Ben Cardin and Anthony Muse, Muse failed catch fire. Muse claimed 16% of the vote, but only ran strong in his home base of Prince Georges county - where he pulled nearly 40% of the vote. In Baltimore City he finished shy of 20%. Muse should've focused his efforts on Baltimore City.  That said, Cardin received just under 75% of the vote and received 42,000 fewer votes than President Obama.

In 1970, incumbent Democratic Senator Joseph Tydings was seeking reelection against a relatively unknown GOP challenger. That same election Governor Marvin Mandel was running and widely expected to win comfortably. Indeed Mandel did win, but a sufficient number of voters withheld their vote from Tydings (he had taken some actions that angered the party base) that he narrowly lost the race. Cardin needs to find out why 25% of voting Democrats opted for someone else. Cardin was weakest in Baltimore City, Charles County and Prince Georges County - clearly suggesting a weakness with African American voters. The lesson to learn for Joseph Tydings is that Cardin cannot take for granted that folks who turnout in November 2012 to vote for President Obama will vote for Cardin as well. Cardin is the clear favorite to win, but there is an opening for the GOP nominee Dan Bongino.

The other big story of the night was in the newly drawn 6th Congressional District. The 6th district had been a reliably Republican district, but Maryland Senate President Mike Miller redrew the district specifically for MD Senate Majority Leader Rob Garagiola. He took care to draw the boundaries such that potential challengers lived outside the district. Garagiola had the backing of state Democratic party establishment including Steny Hoyer and Martin O'Malley. But he was crushed last night by John Delaney. Delaney has never held elective office and - to add insult to injury - he doesn't even live in the district. This was an embarrassing defeat for many Democratic bigwigs, especially O'Malley. Delaney was endorsed by current O'Malley foil Comptroller Peter Franchot. Delaney's victory raises questions about O'Malley's level of influence in the state and boosts Franchot's expected run for governor in 2014.

Another very interesting aspect of the 6th district contest was the number of Republicans and Democrats voting. As redrawn Democrats hold a voter registration advantage over Republicans of 183,000 to 141,000, with "Unaffiliated/Other" at about 90,000. The real contest in the 6th was in the Democratic primary as everyone expected GOP incumbent Roscoe Bartlett to win. Yet in this newly created Democratic district with a hard fought Democratic contest more Republicans cast ballots. In every other district (except the conservative 1st) Democrats outvoted Republicans - but not in the 6th. Come November, the presence of several high profile ballot measures (same-sex marriage, the MD Dream Act, and possibly even the new Congressional Districts) will boost turnout by Republicans and social conservatives. At this point, I would not be surprised to see the GOP hold onto the 6th district seat.

Tuesday, April 3, 2012

Inappropriate and Uninformed Attacks on the Court

I support universal health care - I just want to make that clear. I understand and sympathize with the reasoning behind the health care reform law's individual mandate as well. The health care reform law precludes insurance companies from denying coverage to folks with pre-existing conditions. This means that many folks, needing costly medical care, will now come into the insurance market. Unless the cost of providing care to those sick folks can be offset by the premiums collected from healthy folks insurance premiums will skyrocket and more healthy people will opt to drop coverage - until they are sick. An individual mandate solves that problem.

But.... I happen to believe the individual mandate is unconstitutional. I certainly believe that it falls well outside Congress' "commerce clause" power. Though many legal commentators dismissed any suggestion that the mandate was unconstitutional that conventional wisdom was turned on its head last week when several justices on the Supreme Court asked very pointed questions about the constitutionality of the law. Indeed many court observers subsequently concluded that the individual mandate was likely to be overturned.

Now, proponents of the law have decided to start attacking the Supreme Court for daring to question an act of Congress, for behaving like a legislative body. Even President Obama broke his (very short period of) silence on the matter and warned the court to not overturn a law passed by a democratically elected legislature - Obama said to do so would surely be judicial activism.  Legal analyst Jeffrey Toobin wrote "Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government."

These attacks on the court are as unjustified as was the confidence in the constitutionality of the mandate. It is quite correct that the Supreme Court has recognized tremendous authority within the commerce clause. The commerce clause allows for a federal minimum wage, it empowers Congress to limit crop yields for personal use, to protect our air and water, and to prohibit discrimination by private businesses. But what the Supreme Court has never recognized is a Congressional power under the commerce clause to compel a citizen to first engage in commerce and then regulate it. The individual mandate requires citizens to purchase a private product - health insurance - from a private company - an insurer. This is quite unprecedented. Under the 10th amendment such a power would be considered as reserved to the states like most health and welfare powers such as education. The Supreme Court has frequently expressed limits on Congress' commerce clause power. In US v. Morrison, NLRB v. Jones & Laughlin Steel Corp., and US v. Lopez (you look them up!) the court struck down attempts to expand the scope of the commerce clause and specifically referenced traditional state powers.

Had Congress simply imposed a new tax to fund health care subsidies and then granted a tax credit to anyone who show proof of health insurance there is no doubt it would have been a constitutional exercise of the power to tax. Had Congress made Medicare universal it would have been constitutional - as it would be a government provided service. The government collects taxes and provides Social Security - that's constitutional. But the government cannot compel us to purchase stocks or bonds or to start a 401k. There is a line between providing a service and compelling an action. The individual mandate crosses that line.

I offer my opinion not as a casual observer but as someone who wroked in healthpolicy for a decade and as a professor who regularly teaches commerce clause precedent in several classes. I'm well aware of the arguments in favor of the court upholding the mandate and I am well aware of the arguments for overturning the mandate - I find the arguments against the constitutionality of the mandate to be the more sound.

All this is to say no one should have believed the mandate would be a constitutional slam dunk.

Now that it's in question no one should be attacking the court for questioning the law. With all due respect to President Obama, Jeffrey Toobin, E.J. Dionne and the others aghast at the court I will defer to Alexander Hamilton in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm... that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
In other words it is up to the courts, and not Congress, to decide whether an act of Congress falls within the powers afforded under the Constitution. The fact that Congress was elected and the justices were not is a meaningless point. The courts exist as an unelected body precisely because those subject to election may at times be driven to enact unconstitutional laws in response to electoral pressures - or to create electoral pressures.

If the Supreme Court were to strike down the individual mandate it would be no more unprecedented or outrageous than when the courts over-ruled democratically elected legislatures with regard to white primaries, school segregation, inter-racial marriage, the right to privacy, or the line-item veto.

Rather it would be the courts acting as they were intended to act - as the final arbiter of the meaning of the constitution and all laws made under its delegation of power. I'm used to making this argument in response to conservative attacks on the court... clearly are equally in need of this basic civics lesson.