As the 2016 GOP presidential primaries get closer, many conservatives have been growingincreasingly hopefulthat this will be finally the year they determine their party's nominee.
It's a tall order. The Tea Party has shown it can push GOP politicians to the right and win one-off Senate primaries. But taking on the establishment in an expensive, months-long slog of primaries and caucuses across the country is a more difficult proposition. Even when Mitt Romney looked weak in 2012, the Tea Party didn't manage to coalesce around a viable alternative.
This time, things feel different — candidates like Scott Walker and Marco Rubio, who could appeal to Tea Partiers but also potentially win the general election, are considering bids. The establishment could have difficulty anointing one favored candidate if they're split among Jeb Bush, Chris Christie, and Mitt Romney. And in a recent post at the Mischiefs of Faction blog, political scientist Jason McDaniel of San Francisco State University posits that the Tea Party conservatives will eventually unite around one candidate: Walker.
But while this is an intriguing scenario, there are still reasons to be skeptical. The large field makes coordination difficult and may contain several candidates that appeal to distinctive factions of the right but turn off others. And there's that big question of which candidates are more likely to beat Hillary Clinton. Here are five obstacles that could, yet again, prevent the Tea Party from getting its way.
1) Mike Huckabee and Rick Santorum could win Christian right support
Mike Huckabee. (Win McNamee/Getty)
Tea Party conservatives — which I'm defining broadly here, to include various conservative groups and voters who are frequently critical of the GOP establishment and aren't predominantly motivated by religious issues — are most successful in elections when they agree with the Christian right. When they differ on which candidate is best, the vote of the right is split and strange things can happen — like the plurality victory of Todd Akin in the 2012 Missouri Senate primary, a Christian right candidate who actually wasn't supported by Tea Party groups.
So the likely presence of both Mike Huckabee and Rick Santorum in the race is a problem for the Tea Party. Both are proven vote-getters among the Christian right that the Tea Party and business wings of the GOP — and, likely, general election voters — have little love for. (Huckabee is despised by anti-tax groups like the Club for Growth, while Santorum wants to play up family values issues more than economics.) And in their previous runs for president, both stayed in the race for quite a while after most pundits wrote them off — and won several states.
The upshot of this is that, if Huckabee or Santorum proves popular among strongly religious conservatives again, any "anti-establishment" vote could be split among a Christian right candidate and a Tea Party candidate. And if either of these past Iowa caucus winners manages another early state win, he'll likely remain in the race for quite a while — helping prevent the rise of a Tea Party-backed challenger like Walker.
2) Rand Paul is an odd fit
Could Tea Party supporters rally behind Paul — or will he just divide them further? (Jessica McGowan/Getty Images)
When Rand Paul first took on the establishment in his 2010 run for Senate, he was frequently referred to as a Tea Party challenger. But by 2014, it had become "clearer and clearer that this [Tea Party] label doesn't really fit," Aaron Blake wrote last year. For the most part, Paul seemed uninterested in serving up red meat to the base — instead challenging favorite talking points ("amnesty is a word that's trapped us," he said last year), and emphasizing how the party has "to reach out to more people." And while Paul's votes remain quite conservative on most issues, he's frequently crossed party lines to work with Democrats.
During the 2012 primaries, Rand's father Ron Paul had a dedicated core of supporters — he won 21 percent of the vote in the Iowa caucuses and 22 percent in New Hampshire. The more mainstream Rand could build on those totals and win a plurality victory in an early caucus or primary. But what would happen next?
It doesn't seem impossible that the Tea Party could coalesce behind Rand Paul. But his personal style and occasional ideological deviations (especially on foreign policy) make him an odd fit. My view is that a strong showing by Paul would most likely lead to a split the anti-establishment vote (as with Huckabee and Santorum) — and make the ultimate victory of an establishment candidate more likely.
3) The vast number of candidates will make coordination difficult
The 2008 GOP field was big. This year's will be bigger. (Joe Raedle / Getty)
Many of these candidates may opt against a run and others might drop out before the Iowa caucuses due to lack of support — but the more candidates there are, the more difficult it will be for the Tea Party to coordinate around one. Possible candidates who will court the support of this wing of the party include Scott Walker, Marco Rubio, Rand Paul, Ted Cruz, Bobby Jindal, Rick Perry, and Mike Pence.
The question of when candidates drop out will be crucial to determining the Tea Party's success. Dave Weigel has written that the Tea Party could succeed by "minimizing possible spoilers and locating a white knight. It might take until South Carolina or Florida, but if only one candidate is left by then—a Ted Cruz, a Rand Paul, a Scott Walker—he’d be in a stronger position than any insurgent since Ronald Reagan in 1976."
Yet when there are so many candidates running, some may not be so amenable to dropping out quickly — especially those with anti-establishment dispositions. And if a Tea Partier misses the chance to make a splash by winning Iowa or New Hampshire, it may be too late. (Bill Clinton is the only modern presidential nominee who didn't win either of those states, but the Iowa caucuses were basically meaningless in 1992 because home state senator Tom Harkin was running.)
4) Immigration is a fraught issue
Ted Cruz will hammer his rivals on immigration. (Alex Wong / Getty)
Unauthorized immigration is an issue that hugely matters to Tea Party voters. When Theda Skocpol and Vanessa Williamson interviewed Tea Party activists across the nation, they foundthat "immigration was always a central, and sometimes the central, concern" they expressed. It's the biggest hot-button topic that divides the GOP's elites from its base, and it was a factorin House Majority Leader Eric Cantor's primary defeat last year.
Yet many potential Tea Party favorite candidates have avoided or downright contradicted the Tea Party on this issue. These include establishment favorites like Jeb Bush. But also, Marco Rubio, once a Tea Party favorite who successfully challenged establishment favorite Charlie Crist, ended up co-authoring the Senate immigration reform bill — and losing the trust of the Tea Party right. Scott Walker, too — frequently posited as an electable figure the Tea Party could rally around — has flirted with support for legalizing the status of unauthorized immigrants. And Rand Paul worked with a pro-immigration reform group last year to try to pass a Republican bill — though he voted against the Senate's bipartisan compromise.
The one well-known candidate who's been most consistent and outspoken in his opposition to immigration reform is Ted Cruz. "Immigration is a highly salient issue on which Cruz can cut down virtually the entire field," Mickey Kaus of the Daily Caller writes. "If Cruz gets all the GOP's anti-amnesty voters while the other 27 candidates split the GOP's gotta-please-Latinos vote, he will win by a large margin."
5) Tea Party conservatives may not agree on who is electable
My brother is an unpopular former president. Vote for me. (Kevork Djansezian / Getty Images News)
Yet the flip side of purity on immigration may be electability. After two terms of a Democratic president, many conservatives — including Tea Partiers — will surely be eager to find a candidate who can actually win the general election. A position on immigration that alienates Hispanics could complicate the GOP's electoral math in swing states like Florida. And candidates with other hard-right positions could alienate moderates more generally.
So if many Tea Party conservatives conclude that a certain candidate is unelectable, they might instead support one whose positions on the issues aren't quite what they'd like. Accordingly, enthusiasm for Cruz — seen as a far-right bomb-thrower — has been muted even among ideologically conservative elites. For instance, Jim Geraghty of National Review wrote this week that Cruz "will easily get elected President of Conservative America," but lists him as a second-tier candidate due to his lack of appeal to moderates.
But the establishment may face some difficulty arguing that their candidates are more electable. Of the current two favorites, one is the brother of an unpopular former president, and the other is a widely mocked general election loser. Plus, as several candidates will surely bring up, party elites called Ronald Reagan too conservative to win as late as March 1980 — and Reagan, of course, proved them quite wrong.
So it's too early to say what conclusions Tea Party conservatives will draw about electability — or whether they'll be willing to take a risk on a very conservative candidate. But the issue is yet another thorny problem that will confront the Tea Partiers as they struggle to get the presidential candidate of their dreams. We'll see how they manage to resolve it.
Rep. Paul Ryan (R-Wis.) is among numerous Republicans supporting a Supreme Court challenge to the Affordable Care Act. Ryan's past statements are at odds with the lawsuit's central claim. | AP Photo/J. Scott Applewhite
WASHINGTON -- Over the past year, a number of Republican lawmakers have gravitated to the claim that there is a central flaw in President Barack Obama's Affordable Care Act. Jumping aboard a lawsuit that has now made its way to the Supreme Court, they argue that a close reading of the bill prohibits the federal government from giving subsidies to those who purchase health insurance on exchanges that are run by the federal government, of which there are 34.
The question is whether this embrace of the lawsuit represents an epiphany or crass political opportunism. Because not long ago, many of these Republicans were publicly assuming the subsidies they now question were available to everyone, regardless of the exchange on which they shopped.
An August 2013 letter to then-Health and Human Service Secretary Kathleen Sebelius shows how Rep. Paul Ryan (R-Wis.) made this exact shift. Back then, Ryan declared these subsidies would cost taxpayers more than $1 trillion -- an amount only possible if they were available nationally, not just in the 15 state-run exchanges in place at the time.
This acknowledgment of the Affordable Care Act tax credits for low- and middle-income households in every state contradicts a brief Ryan and 14 other GOP lawmakers filed to the Supreme Court last month. That document states, “The plain text of the ACA reflects a specific choice by Congress to make health insurance premium subsidies available only to those who purchase insurance from ‘an Exchange established by the State.’”
In March, the Supreme Court will take up a case called King v. Burwell, which asserts that those words mean subsidies can go only to residents of states that created their own exchanges under the law, and not in states that allowed the federal government to do so. The lawsuit doesn’t stop there, because it also claims Congress intended this to be the case, an argument vehemently disputed by the Obama administration and the congressional Democrats who wrote the law. The high court is expected to rule in June.
Republican lawmakers are jumping aboard the Obamacare lawsuit bandwagon in the meantime. The problem with the mainstream Republican adoption of the claim that Congress meant to deny subsidies to consumers using federally run exchanges is that Republicans didn’t express that view during the congressional debate in 2009 and 2010, nor in the time that followed -- until the chances increased that the suit would succeed.
In the letter Ryan sent to Sebelius when he was Budget Committee chairman in 2013, which was part of a number of documents obtained through a Freedom Of Information Act request to the Department of Health and Human Services, he wrote:
The committee has many questions about how this law is being implemented. Of particular interest is how the federal exchange subsidies, with an estimated gross cost of more than $1 trillion, will be managed, administered, and verified.
Ryan made a similar assumption during a hearing in March 2010, a few days after Obama enacted the Affordable Care Act, Talking Points Memo reported this month. At the time, Ryan described the subsidies as available to “just about everybody in this country, people making less than $100,000.”
Brendan Buck, a spokesman for Ryan, did not say when or why the Ways and Means Committee chairman changed his views on the meaning of the Affordable Care Act. Instead, he noted that the congressman was operating off of CBO numbers when he wrote his August 2013 letter, and questioned why such material was being resurfaced now.
"The increasingly half-baked 'evidence' that defenders of the law are citing is revealing quite a sense of rising panic that Obamacare is in real trouble," said Buck.
While the King lawsuit does, indeed, place Obamacare and millions of health insurance consumers in real trouble, the Republican argument about congressional intent has trouble of its own.
Sen. John Barrasso (R-Wy.) is another of the 15 Republican lawmakers whose brief to the Supreme Court declares subsidies were only meant for state-run exchanges. But in 2011, Barrasso had a different point of view, Salon reported Tuesday.
At a press conference touting legislation that would have allowed states to opt out of Affordable Care Act insurance regulations, Barrasso stated the subsidies in question would be provided no matter what a state did. Taxpayers are “not going to give up that right to have an opportunity to use that money,” he said.
That same year, Rep. Darrell Issa (R-Calif.), who was chairman of the House Oversight and Government Reform Committee, issued a report titled "Uncovering the True Impact of the Obamacare Tax Credits." In the footnotes of that report, he and his staff adopted the argument that Obamacare defenders now use to defend the legality of sending subsidies to all eligible recipients, regardless of what exchange they shop on.
"State health insurance exchanges will be set either by the state or by the federal government if a states refuses to set up its own exchange," the footnote reads. "The exchanges are basically portals where individuals can purchase health insurance. Many individuals who purchase insurance through an exchange will qualify for a tax credit."
Also in 2011, Republicans unanimously supported a bill using subsidy funding to pay for a change in tax law. Doing so explicitly assumed those tax credits were national, as The New Republic reported last week.
An estimated 10 million people would lose their health coverage in absence of the subsidies received by more than 85 percent of exchange enrollees. And the abrupt departure of that many people from the insurance pools in those states would destabilize those markets, jeopardizing coverage for those who could still afford it, and the ability of insurers to continue operating in these states.
Univision America Host & contributor to NPR, The Hill, FoxNews Latino and other media
Short of flying giraffes in the chamber of the House, nothing should surprise Americans about their Congress. The latest chapter in the GOP's high dysfunction as the "governing" party is the suggestion by some Republicans not to fund the Department of Homeland Security so as to stick a knife in President Obama's immigration actions.
This latest romp through the surreal landscape of the 114th Congress comes after a month of embarrassing stumbles that have put in stark relief the GOP's not-ready-for-primetime control of both houses of Congress.
It all started with the circus-like coup attempt against Speaker John Boehner (R-Ohio), followed by a fantasy bill that seeks to deport all undocumented immigrants, an abortion bill that once again puts into question if GOP men understand the meaning of the word "rape," and now a fight over the border and Obama's immigration reforms of late last year.
Most Senate Democrats have signed a letter to Senate Majority Leader Mitch McConnell (R-Kentucky) saying that they will vote against any bill that messes with the president's executive actions. The Democratic House Minority Leader Steny Hoyer (D-Maryland) has told his colleagues to vote against any Republican bill that would seek to defund the immigration actions, too.
So faced with this mathematical certainty that they don't have the votes to both fully fund Homeland Security and consign immigrants to the deportation machine, it now seems that House Republicans have staggered into a new position.
Cue the flying giraffes. On the table now is the idea of forcing the president's hand byrefusing to pass any Homeland Security funding bill -- a bill that would ensure that Homeland Security has the resources to defend the American people, at a time of rising global jihadist activity the mass murder of journalists in Paris and the continuing massacre of men, women and children by the Islamic State in Iraq and al-Sham (ISIS).
At this point, there isn't one American who does not know that Republicans really, really don't like Obama. The last five years have been a tragic display of personal animus disguised as "philosophical differences," which has only harmed the country (government shutdown, debt-ceiling crisis, growth-killing austerity policies in the form of the sequester, among others).
But it takes a special form of mania to actually threaten the national security of America in order to stop Obama's immigration actions. Of course, the GOP could have stopped Obama long ago: They could have brought the bipartisan immigration-reform bill from the Senate and considered it in the House. But the bizarre fear that the bill could not be considered because it actually enjoys the support of moderate Republicans has led directly not only to Obama's actions but to this dead-end non-strategy of holding the nation's security hostage in the hopes that Obama and congressional Democrats will surrender on immigration.
At some point, the neverending carping about "conservative" Republicans causing trouble has to stop. The speaker of the House has the ultimate authority to decide what gets on the floor and what doesn't. Boehner's insistence on pleasing the radicals disguised as "conservative" Republicans starts to call into question his own integrity.
Aside from retaining his slippery grasp on his throne, what does Boehner really care about? Is he not the principled man that both Republicans and Democrats tell me he is in private? Or has Boehner morphed into yet another Washington apparatchik desperate to hold on to power even at the risk of making America vulnerable to a terrorist attack?
With Congress's approval rating down for the count, and Republican leaders desperate to not screw up the party's chances in 2016, you'd think that the bigger principle at stake is not one man's fate, wearing the crown of thorns that Boehner seems to endure by pleasing the radical right-wing, but the image and policy turnaround of a party that has come to be known as the "party of no."
Giraffes aside, it's hard to imagine that if the GOP allows Homeland Security to be willfully crippled by Congress, Republicans will not once again reap the opprobriumthey earned during the GOP government shutdown. This stain may be impossible to wash off by 2016 -- and surely will continue to impact the following election cycles as well.
It's time for Speaker Boehner to bring order to his House and make sure America is not put in danger of terrorism because of "philosophical differences."
Ignorance of the law is no excuse -- that is, unless you're a police officer. For the first time, in December, the Supreme Court upheld a traffic stop even where there was no traffic violation. The court, in Heien v. North Carolina, continued its steady erosion of the Fourth Amendment's protection against unreasonable searches and seizures.
In this case, an officer stopped a car that had only one working brake light, thinking that North Carolina law required two working brake lights. But the officer was mistaken about the law. Only one working brake light is required in North Carolina.
Although the court has upheld searches when an officer has made a mistake about the facts, the court has never before said an officer can stop someone due to a mistaken belief the person is committing a crime.
Sgt. Matt Darisse began following a Ford Escort because he thought the driver looked "very stiff and nervous." When the driver of the Escort applied the brakes, only one brake light came on. Darisse then pulled the car over.
Maynor Javier Vasquez was sitting behind the wheel and Nicholas Brady Heien was lying across the rear seat. Darisse gave Vasquez a warning ticket but became suspicious when the latter appeared nervous. Heien, the car's owner, told the officer he could search the car and Darisse found cocaine. Heien was arrested for attempted trafficking in cocaine.
Consent obtained after an unlawful traffic stop is invalid because it is a fruit of a Fourth Amendment violation. In Heien, however, the Supreme Court upheld the stop and thereby, Heien's consent to search.
The North Carolina Court of Appeals reversed Heien's conviction, concluding that the initial stop of his car was not valid because driving with only one working brake light was not a violation of North Carolina law. The Supreme Court reversed the state court and reinstated Heien's conviction.
Chief Justice John Roberts, writing for the majority, opined, "Darisse could have reasonably, even if mistakenly, read the vehicle code to require that both brake lights be in good working order." The court held that an officer's mistake of law will not invalidate a stop if the mistake was reasonable.
Roberts wrote, "Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistakenly on either ground."
Although Roberts conceded, "Ignorance of the law is no excuse," both for citizens and police officers, he added, "[b]ut just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop." Heien, Roberts pointed out, "is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law."
Only Justice Sonia Sotomayor dissented from the court's opinion. She would hold that in the course of determining whether a search or seizure is reasonable, a court should evaluate "an officer's understanding of the facts against the actual state of the law."
Citing the 1996 case of Ornelas v. United States, Sotomayor wrote, "[w]hat matters ... are the facts as viewed by an objectively reasonable officer, and the rule of law - not an officer's conception of the rule of law, and not even an officer's reasonable misunderstanding about the law, but the law."
Distinguishing mistake of law from mistake of fact, Sotomayor observed, "The meaning of the law is not probabilistic in the same way that factual determinations are. Rather, 'the notion that the law is definite and knowable' sits at the foundation of our legal system."
Noting that the court has never before "taken into account an officer's understanding of the law, reasonable or otherwise," Sotomayor alluded to the court's erosion of the Fourth Amendment: "Departing from this tradition means further eroding the Fourth Amendment's protection of civil liberties in a context where that protection has already been worn down."
Supreme Court's Erosion of the Fourth Amendment
Indeed, since 2000, the court has decided 13 cases that significantly weaken the Fourth Amendment's guarantee against unreasonable searches and seizures:
- Illinois v. Wardlow (2000) - Flight in a high-crime neighborhood may constitute reasonable suspicion for a warrantless stop.
- Illinois v. Caballes (2005) - Police can use a drug dog to sniff around a car even without prior probable cause or reasonable suspicion that drugs are present.
- Samson v. California (2006) - Parolees can be searched without a warrant even if there is no reasonable suspicion or probable cause of criminal activity.
- Hudson v. Michigan (2006) - No suppression of evidence for violation of the knock and announce requirement.
- Herring v. US (2009) - Police can rely on information received from another law enforcement agency that there is a warrant out for the arrest of a person, even though the information is erroneous, which raises the bar for exclusion of illegally obtained evidence.
- Kentucky v. King (2011) - Police can search without a warrant under the exigent circumstances exception even if the police themselves created the exigency.
- Arizona v. US (2012) - Police can ask about immigration status if they have reasonable suspicion the person is not lawfully present in the United States, even though "reasonable suspicion" is based on racial profiling.
- Florida v. Harris (2013) - Alert by a drug-detection dog can constitute probable cause for search even without a showing that the dog is reliable.
- Maryland v. King (2013) - Arrestees can be forced to provide DNA samples even if they are not convicted of a crime.
- Fernandez v. California (2014) - Police can conduct warrantless searches under the consent exception even if a co-tenant objects to the search.
Alarmed about the expansion of police authority, Sotomayor predicted: "Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands [their] authority."
This seems like a bad time to expand police authority. The recent killings of Michael Brown, Eric Garner and others by police have raised serious questions about the way police exercise their judgment. Broadening police discretion to allow ignorance-based traffic stops will give officers another excuse to harass people of color. The Heien decision just exacerbates the problem.
Marjorie Cohn is a criminal defense attorney, a professor of criminal law and procedure at Thomas Jefferson School of Law, and a former president of the National Lawyers Guild. She is co-author of Cameras in the Courtroom: Television and the Pursuit of Justice. Seewww.marjoriecohn.com.