-- Posted by Neil H. Buchanan
Wednesday's New York Times included an article about a U.S. Bankruptcy Court decision that invalidated the Defense of Marriage Act (DOMA). The decision's author, Judge Thomas B. Donovan, wrote that "no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple," and his opinion was signed by 20 of the 24 judges on his court (in the Central District of California). The House Republicans who are now defending DOMA in an appeal of a decision by the U.S. District Court in Massachusetts have decided not to appeal the Bankruptcy Court opinion, apparently on the implausible ground that "doing so would be prohibitively expensive."
As an advocate of gay civil rights, I view all of this as good news. Naturally, I view the possibility of legislation legalizing gay marriage in New York as bigger news; and whatever one might think about the Republicans' choice to drop the bankruptcy case, it does seem obvious that the Massachusetts case is the one that will land in the Supreme Court. Still, it is heartening to see such strong evidence of a growing consensus among public officials that legalized discrimination cannot stand.
I then started to think about DOMA itself, in particular the date of its passage, 1996. In addition to DOMA, 1996 also saw the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA, commonly known as Clinton's Welfare reform law, even though it was part of the Contract on America and was introduced by a Republican in the House), and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA).
That is quite a murderers' row! DOMA speaks for itself. AEDPA was mostly about habeas law, not the death penalty or anti-terrorism, and its effects have devastated criminal defendants ever since, especially the worst-represented among them. IIRIRA was blatant immigrant bashing. And PRWORA, although lauded even by many liberals for years afterward, only received its acid test when the economy went bad. Unless one views welfare reform as successful purely because fewer people receive benefits, no matter the need, then that law, too, has been a disaster.
President Clinton signed AEDPA on April 24, PRWORA on August 22, DOMA on September 21, and IIRIRA on September 30, 1996. As the timing indicates, Clinton's signing of those laws represents the fruits of his triangulation strategy, as he adopted Republican policies in the months leading up to his re-election. Even with a relatively strong economy and a very weak opponent, Clinton went out of his way to ignore liberal allies and attempt to woo implacable conservative opponents by signing these laws, even when the polls ran in the opposite direction. (There was support for the welfare reform law, but the particular version that Clinton signed was unpopular and could have been vetoed on the basis that it was projected to put several million children into poverty.)
Given that I have been calling Obama and his team neo-Clintonites and born-again triangulators for some time now (see, e.g., here), this raises the question of just what Obama has in store for next year. What will he do to prove that he is a "centrist"? What will be his particular version of what Rachel Maddow colorfully calls the "Punch the Hippie Strategy"?
We can expect variations on Clinton's "Sister Souljah moment," in which the president will find symbolic ways to distance himself from his most fervent supporters. Obama has certainly done nothing to take back Clinton's infamous line that "the era of big government is over," with Obama's bizarre and unilateral decision to freeze federal employees' salaries last Fall only one small example of his commitment to anti-government dogma.
But will there be something big and substantive? Something like DOMA, AEDPA, and so on? Something that would inflict damage for years, requiring untold efforts to mitigate the damage and repeal the laws (or have them declared unconstitutional)?
It is possible that all of the damage that could be done will have happened in 2011, rather than 2012, because of the House Republicans' decision to use the debt ceiling to get their way on everything (and because of Obama's apparent lack of a strategy to stop them). If there is still room to do so, however, what might Obama do to sell out during an election year? A few possibilities come to mind:
(1) He could endorse the Bush tax cuts and agree to make them permanent (and even make them worse). Notwithstanding the Obama team's claims in December 2010 that his deal to extend the Bush tax cuts through December 31, 2012, would be accompanied by a fierce campaign to end the upper-income tax cuts thereafter, he could easily claim next year that he has seen the light on trickle-down economics. As a bonus, he could agree to eliminate the estate tax entirely.
(2) He seems likely to attack Social Security. Everything that he has done regarding deficit policy to date has been setting the table for undermining Social Security in the name of saving it. Now that Medicare has again become politically toxic, we can expect Obama to make a big announcement about the importance of reforming "entitlements," along with some kind of plan to put Social Security on the road to repeal (most likely by means-testing benefits).
(3) He could endorse a Balanced-Budget Amendment. This would have the advantage of being politically popular without any immediate policy downside, because the process of passing the amendment would take some time. Obama could thus set the process in motion -- a process that, once begun, could never be stopped -- and reap the political benefits, while leaving future administrations (including his own, if he wins) to deal with the consequences.
(4) Why not get in on the fun of lawyer-bashing by agreeing to a big federal anti-lawsuit bill? There has already been plenty of talk from Democrats about how they now see the damage from (nonexistent) runaway lawsuits, so it would be easy to imagine Obama agreeing to some kind of bill that moves everything into federal court, then sets high barriers to win cases and low limits on payouts.
(5) Finally, let us not forget the possibility that he could give ground on the Affordable Care Act. Depending on the state of the campaign, there is no reason to suspect that Obama would hold the line on that law (which he embraced only late in the game, anyway). It is difficult to imagine the White House agreeing to full repeal, but it is quite easy to imagine major concessions short of that.
I am not taking bets on any of these particular predictions, but I do not see any of them as unlikely. The larger point is that Obama has shown a strong inclination to move right whenever he feels at all politically vulnerable (and sometimes even when he does not), taking his supporters for granted and hoping to position himself as a statesman above the fray. That always means bad things for anyone who does not want to see the political center move even further to the right.