Is a Republican wave building for the fall congressional elections? It’s possible. After all, it would seem more likely that the 2014 midterm electorate will look more like the 2010 midterm electorate than the 2008 or 2012 presidential year electorates. And the Republicans did quite well in 2010. Thus some political commentators have ventured the suggestion that a Republican wave might appear.
But it is hard to say. There is a lot of polling, but never as much as we would like. In this environment of imperfect information, it is tempting to try to guess at what those with more knowledge think they are seeing. We might, for example, ask whether President Obama is acting like he is worried about a Republican wave election. The DNC and the White House have a lot of money for polling, and while they understandably will not share it with the public, it is possible to speculate–remembering always that it is just speculation–on what their polls are telling them, based on how they act.
One thing that makes me suspect that the president is worried about such a wave is his apparent effort to goad the Republicans into impeaching him by threatening daring–maybe illegitimate–executive action on immigration. Here I have to give credit to the very astute liberal blogger Mickey Kaus, who suggested a few weeks ago that the president might actually be trying to bait the House Republicans into impeaching him because it would be a good way to generate enthusiasm among Democratic voters. This seemed to me like a creative but perhaps overly imaginative interpretation at the time, but recent events lend support to it. In the last couple of weeks the president’s partisans, even his official spokesman, have taken to musing publicly about the possibility of articles of impeachment. Needless to say, it is rare–I think unprecedented–for White House officials to go on the record entertaining the idea that the House of Representatives might actually think the president has committed impeachable offenses.
Does this impeachment talk coming out of the Obama camp tell us anything about what they think about the political lay of the land? Does it tell us anything about what they think is the likely outcome of the fall elections? Perhaps. It is a reasonable surmise that they are trafficking in this impeachment talk, and floating trial balloons about a sweeping executive immigration amnesty, precisely because the fear that such tactics are necessary in the face of what they fear will happen otherwise.
Here I take it for granted, by the way, that the president’s hints at executive action on immigration are driven more by political than policy concerns. If policy were the only consideration he could have done something before now. Or he could wait until after the elections to see what happens. I don’t mean to say that the president has no serious policy interest in the issue. But you have to assume that anything said by any White House three months before congressional elections is said with a view to influencing those elections.
So, based on these actions, what can we surmise the president is seeing? Is he expecting the Democrats to hold the Senate and take the House? Hardly, I think. Nobody expects it based on the public evidence, and if the president thought it was going to happen based on internal polling there would be no reason for him to do something out of the ordinary like talking about executive actions that might result in impeachment.
Does he think that the election will result in more of the same, a Republican House and a Democratic Senate? Again, it is hard to see why, in the face of such an outcome, he would resort to such tactics. They are, we must admit, politically risky. They are calculated to excite his base; but they would inevitably excite the Republican base, too. By suggesting such action he implicitly admits that the Republican base is already excited against him and so he needs to do something extraordinary to excite the Democratic base. He admits, in other words, that the Democrats are playing from behind.
By the way, it is worth noting here that, should he take the kind of action he is indicating, the political risks are even more complex than just suggested. Sweeping executive action on immigration might well excite Hispanic voters who incline toward the president. It is not clear that it would excite, say, white liberals who support the president. Or, if it does, they probably live in places where Democrats are going to win anyway, so it is not clear what benefits he would get from them. And it is hard to see that such action would enthuse African American voters, whose community faces its own problems–problems which have not really improved under president Obama’s political leadership and would not be addressed by executive action on immigration. African American voters, however, probably would be moved powerfully to vote if president Obama were in fact impeached by a Republican House. They might well react to this as an attack on the first African American president, and would turn out to vote accordingly.
Note, however, that this outcome–which the president may well desire–depends on the House Republicans taking the bait and impeaching the president. This is what makes it especially risky. What if the Republicans respond not by impeaching, but instead by going back to districts where there are competitive races, denouncing the president for lawless and improvident action, demanding that their Democratic opponents take a stand on it, and generally saying that the way to send a message to the president on this issue is to vote Republican? In this case the president might do himself no good and maybe even some harm.
In sum, it seems like a risky move, and that makes me think that the president sees a very grim outcome in the fall elections if he does not do something like this. He feels he has to roll the dice to (possibly) stave off a wave.
At the same time, it may be that the president is not really calculating like this but just doing what he wants to do, doing what his gut tells him. He seems to have made political misjudgments before.
One other reason comes to mind why the president might actually want to be impeached in late 2014. Last week the Court of Appeals for the D.C. Circuit ruled that the language of the Affordable Care Act does not permit subsidies to people who purchase health care in the federally established health exchanges. Another circuit ruled the opposite way, and the issue will probably come before the Supreme Court in the coming year. There is at least a fair chance that the DC Circuit will be upheld and the subsidies invalidated. After all, it only takes four justices to grant review, and four have made clear that they are not friends of the law. Moreover, those four made it clear in the major case on the issue that they are inclined to take the law at its word. A “penalty” cannot be reinterpreted as a “tax,” they said in 2012, so it is likely that in 2015 they would similarly say that “the State” does not mean “the State or the Federal Government.” That leaves Justice Roberts to make the fifth vote for this position. Roberts held in 2012 that it is permissible to bend over backwards to give a federal law an interpretation that renders it constitutional. It is not clear that he would say there is any obligation to bend over backwards to interpret a federal law in such a way as to save its authors from political problems created by the legislation they crafted.
So there is reason for the president to fear that at least a five member majority of the Supreme Court will endorse the D.C. Circuit’s reasoning. That will make the Affordable Care Act unworkable and politically toxic, since it will mean that many Americans will be deprived of subsidies they were led to expect and that they might need to be able to afford insurance.
In that case–which could emerge less than a year from now–the president will be faced with some tough options. He can let the law operate according to the Supreme Court’s interpretation, which will cause a lot of pain for both voters and, presumably, for Democrats. He can go to the Congress, which will probably be partially controlled by Republicans, or maybe entirely controlled by them, and ask them to change the law to correct these problems. They might do this, but they would surely demand other changes to the law that the president would not like. Or they might ride the storm, let public discontent with the bill build, and repeal it. None of this seems very attractive from the president’s point of view.
Which leads us to one other–strange but possible–alternative. The president might choose to ignore the Supreme Court’s ruling and continue to administer the law according to his own interpretation. In that case he would be expending federal money that had not been approved by law. If he were to do that, he would then face a serious risk of impeachment–with both the Congress and the Supreme Court effectively on the other side. In the light of such possibilities, he might prefer to be impeached in 2014 when it might end up being politically advantageous and might save him from a later impeachment that he might not survive.