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A roundup of faculty commentary on President Obama’s re-election

November 07, 2012

The re-election of President Barack Obama on Tuesday elicited a broad spectrum of commentary from faculty members of the University of Pennsylvania Law School. A round-up of their insights into how the election was conducted and what it means for health reform, economic recovery, immigration, women’s rights and a host of other issues vital to the country’s future follows.

 

imageAn election of “firsts”

This was Obama’s second presidential election, but it was also a first in some notable ways. It was the first presidential election to offer voters a major party candidate who has endorsed same sex marriage. It was also the first election held in the aftermath of hard-to-deny evidence of climate change. With respect to both these issues, I think the American people chose the right candidate. What Obama’s second term holds is uncertain. It will depend in part on whether the Republicans in Congress are willing to pursue governance rather than opposition. And it will depend in part on whether vacancies emerge on the Supreme Court and for which seats. If Obama has the chance to replace one of the conservatives, the effect would be quite dramatic.

It will be interesting to see what lessons the GOP draws from their loss. I viewed this election as really their last chance to win with a party whose core constituency was older white males. Given the shifts in the nation’s demographics, that strategy came up short this time and will do worse in the future. It may be time for a major Republican reboot.

Kermit Roosevelt, Professor of Law

 

imageThe charge of dishonesty pained many Latter-day Saints

Romney’s campaign was based on a run to the right, which forced him into awkward changes in policy, opposition to the auto bailout, immigration reform, promise to repeal the new healthcare legislation, anti-choice policies, etc. As a result, his positions (and even his vice presidential candidate) created a split image – the former, much more moderate Romney and then the new one who pandered to a right-wing base.  This shift opened Romney to charges that he was not honest, and said whatever he thought would appeal to an audience.  The 47 % remark at the fundraiser earlier this year is a damaging example of this weakness, however much it may have been recorded by stealth and spun by the Democrats.

The charge of dishonesty was especially painful to many Latter-day Saints, who were accused repeatedly in the nineteenth and early twentieth centuries of lying to hide the truth of their continued polygamy.  In that sense, Romeny’s candidacy was both a mark of acceptance by the broader society, and an occasion for exposure to old forms of opposition to Mormonism.  I should mention here that although I did not support Romney’s candidacy, I found the religious opposition to Romney most distasteful and was never convinced that being an active Mormon is inconsistent with representing the entire nation.

Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History

 

imageThe stage is set for implementing health reform

The reelection of the President solidifies access to health care as part of the basic social contract in America.  We still have some ways to go, but the Affordable Care Act – Obamacare – creates a workable foundation for using choice and markets to carry out that social contract.  The action now shifts decisively to the states.  States have the option of designing health insurance markets that work best for their citizens.  But the Affordable Care Act authorizes the federal government to do the work for the states that pass up that opportunity.  Now that the American people have spoken, I predict that more states will take that opportunity, setting the stage for the most exciting experiment in the “laboratories of democracy” in our lifetime.

Tom Baker, William Maul Measey Professor of Law and Health Sciences

 

imageChoosing a new Treasury Secretary is the President’s most important near-term decision

The fact that so bitterly fought an election produced a decisive result will prove to be a blessing for all of us, Democrats and Republicans alike.  The worst thing that could have happened would have been an uncertain outcome that continued to be fought out for weeks after Election Day, as in 2000.

My hope is that President Obama will quickly shift tone, as he has started to do since Hurricane Sandy hit.  One way to do this might be to acknowledge that the first term included mistakes as well as great successes, such as the failure to take decisive steps to address the real estate crisis (in part, it appears, because of fears that this might ruffle feathers in the banking industry and with its congressional allies and jeopardize the healthcare legislation).  A candid assessment of what worked and what didn’t could help enormously as lawmakers continue to respond to the recent economic crisis.  Because he never again needs to run for reelection, the president is in a unique position to provide this.

In my view, the single most important near term decision President Obama must make is choosing the next Treasury Secretary.  Treasury Secretary Timothy Geithner had a huge impact on the administration’s economic policies in the first term. My hope is that the president will choose a new secretary who is a little more attuned to the interests of regional and local banks, and a little less solicitous of the largest institutions.  The question of when and how much to begin reducing the government’s intervention in the markets as the economy (hopefully) returns to normal will also loom very large.

For the Republicans, the election suggests the need to rethink the recent hardline Republican policies on immigration and against tax increases of any kind, each of which seems to me to have contributed to defeats in the key races.   In addition, I hope they will build on Governor Romney’s suggestion in the first debate that regulation is not always bad, while also looking for targeted opportunities to encourage more market oriented solutions to some of our economic problems. 

David A. Skeel, Jr., S. Samuel Arsht Professor of Corporate Law

  

imageFragmentation by design

Yesterday’s election was more than just a race between President Obama and Governor Romney.  Thousands of candidates appeared on ballots across the country, vying for government offices as varied as that of U.S. Senator and county commissioner.  Elections not only epitomize democracy in action but also reveal just how fragmented government power is in America.

That fragmentation is by design.  The U.S. Constitution specifically distributes governmental power across both the state and the federal levels, and then further divides power at the federal level across three different branches of government, including two separate houses of Congress.  Last night, President Obama came away the victor in the most prominent contest of the night, but his ability to achieve his policy goals will be constrained by the federal government’s overall separation of powers.

The House of Representatives remains firmly in the control of a Republican majority; Republicans will also continue to exert strong leverage over the U.S. Senate by using that body’s filibuster rule.   As with most of the last forty years, the federal government will remain divided along party lines, with Democrats and Republicans splitting control of the Presidency, the House, and the Senate.  Perhaps this is as it should be in a nation so deeply divided along partisan lines.  At least that appears to have been one of motivations for adopting a constitutional design which seeks to limit what James Madison called “the mischiefs of faction.”

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science

 

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Insights from the psychology of decision-making informed the “ground game”

One of the interesting things about this election from a psychologist’s perspective is the extent to which the campaigns–and perhaps more so the Obama campaign–assimilated findings from the psychology of judgment and decision-making to execute their GOTV strategies. For example, studies show that someone who has formulated and articulated a plan for getting to the polls on Election Day is more likely to actually cast a ballot than someone who has just reported an intention to vote. This kind of finding has clear practical implications for a campaign’s “ground game.” Perhaps even more interesting from a behavioral law and economics standpoint is the increasing reliance on social norms to increase voting. “I Voted Today” stickers; reminders that whether or not you voted is a matter of public record; information about high levels of voter participation in your neighborhood–these are ways of creating and making salient a social norm that favors voting.

Tess Wilkinson-Ryan, Assistant Professor of Law

 

image“The idea of Equality is not easily cabined.”

In 1966– a year before Loving v. Virginia struck down criminal punishment of inter-racial marriage– Archibald Cox observed that “once loosed, the idea of Equality is not easily cabined”.  Yesterday, our country was privileged to witness applications of that maxim by our electorate that would have been inconceivable when Professor Cox penned it.

The first African American president of the United States has won reelection in the face of a slow economic recovery, well-funded vitriolic opposition, and a network of efforts at vote suppression. The first woman ever elected to the Senate from Massachusetts will join at least 18 female colleagues. Among them is the Senate’s first openly gay member.  Voters in two states have established marriage equality for same-sex couples, and voters in a third appear poised to follow suit.

The nation has much more to do to achieve the goal of “equality under law”. But if it stands for nothing else, this election highlights the fact that the “idea of Equality” can bear fruit in the decisions of the People just as it can in the holdings of the Court.

Seth F. Kreimer, Kenneth W. Gemmill Professor of Law

 

imageWomen ascendant

Among the many consequences of this election, one clearly stands on the front rank: the ascendance of women and women’s rights as a dominant force in the American electorate.  The reelection of Barack Obama, a monumental achievement that I predict will stand as one of the defining moments in the history of the American presidency, rested on a foundation of support from women.  And the apparent success of the Democratic Party in increasing their majority in the Senate – in an election cycle for which, as recently as several months ago, every sensible prediction placed Democrats in danger of losing control altogether – was due in significant part to the self-marginalization of the Republican Party on women’s reproductive freedom and workplace equality.

What remains to be seen is whether advocates for women’s rights can capitalize effectively upon this demonstration of their political strength.  The last two years have seen a dramatic and hostile shift in the legislative landscape for women’s rights, primarily at the state level.  Advocates for women’s rights need to seize this opportunity to build a political infrastructure that is commensurate with the popular support this election has revealed.  That is long, hard work, and it is a task as to which the Center-Left is years behind the Right, which has successfully entrenched control over state legislatures and state political cultures around the country.  The infrastructure built by the Obama campaign is a powerful tool that stands in potential opposition to that entrenchment, but advocates for women’s rights need to create their own political base.  A path is now open for them to do so.

Tobias Barrington Wolff, Professor of Law

 

imageThe pendulum swings on immigration reform

I can think of no area of legal practice more directly influenced by the outcome of this Presidential election than immigration.  While President Obama had stated his desire to make comprehensive immigration reform a legislative priority, that never came to be. Instead, the Department of Homeland Security under the Obama Administration has begun to exercise its discretionary authority as the agency vested with the authority to interpret and implement the nation’s immigration laws, by focusing enforcement priorities on individuals with significant criminal histories (executing a record number of deportations), while granting relief to immigrants and immigrant families, and particularly immigrant youth, with long-standing ties to this country and the communities in which they live, through the use of prosecutorial discretion and the most recently announced Deferred Action for Childhood Arrivals (DACA) policy. Governor Romney had promised that as President, he would reverse those policies, and overnight, avenues for relief that affect thousands of immigrant families across the country (the majority of whom are mixed-status families) would have been closed.

Perhaps more important is the fact that while immigration reform has been viewed as too politically divisive and unsalable, it barely registered among voters as a priority issue in the 2012 election campaign.  While Sheriff Joe Arpaio was re-elected in Maricopa County, Arizona, despite his virulent anti-immigrant stance, the people of Maryland voted to grant undocumented residents of the state in-state tuition benefits to its community colleges and public universities, its own version of the DREAM Act that Congress has failed to pass.  Whether it’s because Latinos now comprise the largest growing demographic within the United States, or because Americans increasingly recognize immigration as being part of the solution and not part of the problem, the pendulum appears to have swung in favor of comprehensive immigration reform grounded in justice rather than fear.

Sarah Paoletti, Practice Associate Professor of Law and Director, Transnational Legal Clinic 

 

imageThe view from Beijing

In Beijing, the results of the U.S. presidential election arrived on the eve of the Chinese Communist Party’s 18th Congress—the meeting that formally confirms the choice of the men who will lead China for the next decade.  These moments of leadership selection in the world’s two most important countries and partners in the world’s most significant bilateral relationship rarely coincide.  Their near-simultaneous occurrence this time highlights the challenges facing the leaders in these two very different political systems.

In China as in much of the world outside the United States, Obama’s reelection was the widely desired outcome.  For China, continuity in America’s leadership is almost always the preferred option, all the more so when the incumbent’s challenger presses for a tougher line on China.  Yet, after a campaign nearly devoid of substantive foreign policy debate, the prospect of a second Obama term leaves many key questions affecting relations with China unanswered:  Faced with the prospect of a still-recalcitrant House and unresolved fiscal and economic troubles, will Obama be able to secure the resources needed to support the much-touted “pivot” or “rebalancing” toward Asia in American security policy, or the legislative moves necessary to pursue more open and dense economic relations with Asia through the Trans-Pacific Partnership?  If not, it may stoke the potentially destabilizing and, on many accounts, increasingly influential view in China that the U.S. is in lasting and serious decline, in no small part due to the dysfunction of its democratic political institutions.

Xi Jinping and the handful of near equals who will ascend to China’s Politburo Standing Committee face profoundly dissimilar but broadly analogous difficulties.  The party congress coincides with the U.S. elections in part because it had to be postponed in the wake of a scandal replete with factional infighting, corruption, betrayal and murder toppled a key contender for one of the top posts and unraveled an orderly if opaque succession arrangements.  This crisis came amid—and resonated with – calls from many sources—ranging from soon-to-retire Premier Wen Jiabao to long-time advocates of political reform to Party intellectuals—for significant political change, mostly in the direction of greater transparency, accountability, and, ostensibly, democracy.

Although anything much resembling the “Western style” electoral democracy that we saw in action in the U.S. on Election Day is officially beyond the pale and commands strikingly little support among public intellectuals or the general public, the discourse in China swirls around change more fundamental than anything that is likely to be on offer to address the U.S.’s ongoing political woes in a second Obama term.  In China, too, there is much skepticism about whether significant political reform can occur, but here there is a much stronger sense that absent change both political legitimacy and governing capacity are at risk, with dire implications for the sustainability of China’s recent dizzying rise toward prosperity and great power status.

Jacques deLisle, Stephen A. Cozen Professor of Law

 

imageThe election allows real policy work to begin on health reform

Last night’s election results present an interesting dichotomy between a decisive Electoral College win for the President, and a profoundly divided and razor-thin popular vote tally.  In such circumstances it would be overreading the results to say that they reflect a broad and deep mandate for the President’s most important and contested programs, like the Affordable Care Act.  But winning a second term is a tremendous opportunity for the President and his administration to broaden and deepen support for these major initiatives.  

Nowhere is this more true than in the area of health policy, which remains one of the most politically decisive issues for Americans.   Exit polling shows that over 90% of voters who think the Affordable Care Act should be expanded voted for Barack Obama; while over 90% of those who think it should be repealed voted for Mitt Romney.  The election results do not smooth over these divisions, nor do they answer any of the multitude of remaining questions about how the Act will be implemented.

Much like the Supreme Court’s June 2012 decision upholding the Affordable Care Act, the most important result of this election is that it allows real policy work to begin on the specifics of health policy reform.   Despite its infamous length, the Affordable Care Act leaves many of the details of insurance expansion and regulation, and of cost control, unspecified and it will be years before we know the full contours of these measures.   Moreover, most of the crucial choices about ACA’s implementation will be made at the state level, where Republican governors control a substantial majority of state bureaucracies.

In the aftermath of this partisan election, the states have strong fiscal and policy incentives to work with the Obama administration to negotiate the best deal for their citizens going forward in implementing the ACA’s provisions, and the President in turn has a clear interest in accommodating diverse state concerns to further entrench his long-term vision of health reform.  One thing is clear – last night’s result is hardly the end of our ongoing national debates over health reform.  But by allowing the discussion to proceed, it may help us move toward a better, and more bipartisan, solution.

Theodore Ruger, Professor of Law   

 

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