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Senate Majority Leader Mitch McConnell (Ky.) and the GOP leadership are scrambling this week to corral 50 out of 52 Republican votes for an historically unpopular health-care bill. Why did so many House Republicans already vote for a bill that large majorities in every state detest? And why are their Senate colleagues considering walking the same plank, given the electoral risk?
In our book, “Representing Red and Blue: How the Culture Wars Change the Way Citizens Speak and Politicians Listen,” we find that thumbing one’s nose at public opinion might spell trouble for elected Democrats. But Republicans typically have much less to fear, because most GOP voters don’t expect — or even want — their representatives to follow the public will.
Republicans prefer ‘trustee’ representation
According to several years of nationally representative survey data, about two-thirds of Americans believe that elected representatives should “try their hardest to give the people what they want.” Remarkably, however, Republican voters are between 20 and 30 points less likely than their Democratic counterparts to agree. Moreover, people represented by a Republican member of Congress are almost 20 percentage points less likely to perceive their member as behaving that way, regardless of their own party identification.
It’s not as nefarious as it sounds. Republican voters, whether they consciously realize it or not, are more comfortable with what political scientists call “trustee-style representation,” whereby representatives use their own principled judgment when casting votes. In contrast, the “delegate style” binds legislators to constituent demands. Many Republicans — voters and lawmakers alike — cherish their principles more than they do the whims of a mostly uninformed and inattentive mass public.
Why the partisan divide?
As with so much, the U.S. culture wars drive this partisan representation divide.
First, members of groups that comprise the Republican base seem especially averse to delegate-style public overtures. Even after taking account of other forces that might shape citizens’ views of lawmakers, we found that traditionalistic Christians are 23 points less likely than seculars to say that representatives should “give the people what they want.” Instead, they should “stick to their principles, no matter what the polls might say.”
Second, those most inclined to favor traditional power relationships in the home or to oppose egalitarian causes are 32 and 29 points less likely, respectively, to respect public opinion in this way.
Third, when Republicans think their representatives are getting soft, they try to hold them accountable. In surveys, we asked respondents to tell us not only what kind of representation they wanted but also the kind they thought they were actually getting. Democrats proved 23 points less supportive of their representatives when they perceived them paying too little attention to public opinion. In contrast, Republicans were up to 50 percentage points less supportive when they saw them paying too much attention.
Fourth, judging from legislative roll-call data since 1985, Republicans in Congress have been considerably less likely than Democrats to follow their constituents’ policy preferences — a tendency that has grown over time. We found that the ideological convergence between voters and legislators is more than three times greater among Democratic legislators than among Republicans.
Here’s what that means for the promise to repeal and replace Obamacare
These stark partisan differences suggest that Republicans could well buck broad public opinion and vote for an unpopular Senate health-care deal. Granted, polling on the House bill has revealed stronger support among Republicans than Democrats for repealing and replacing Obamacare. But judging from our research, if Republicans were to break their party’s seven years of promises to repeal Obamacare just because the polls have changed, many GOP voters would consider it a rudderless sellout, which could carry greater political risk.
For Republican lawmakers, effective pandering to constituents may have taken on a new meaning: You can charm your constituents by ignoring majority preferences, in devotion to your principles.
It remains to be seen whether the Republican Senate will pass its health-care plan this week. But it’s likely to secure the votes of at least 48 of 52 Republicans. And Republicans who vote for it will probably not suffer any meaningful consequence from GOP voters for doing so.
David C. Barker is the incoming director of the Center for Congressional and Presidential Studies and professor of government at American University. Follow him on Twitter @barkerccps.
Christopher Jan Carman is the Stevenson professor of citizenship at the University of Glasgow.
Together they are the authors of “Representing Red and Blue: How the Culture Wars Change the Way Citizens Speak and Politicians Listen” (Oxford University Press, 2012).
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Fouad Dagoum fled Sudan after his village was ransacked by militia members who captured, detained and tortured him until his body was limp.
Eventually, he escaped to Egypt, where he was parked for more than a decade until getting a green light to resettle in the United States with his wife, Azhar Ahmed, and daughter, Lames.
Two years ago, the family arrived in New Haven, where they knew no one. A refugee resettlement agency found them an apartment, signed them up for benefits, got them Social Security numbers and enrolled the daughter in school.
“It was hard,” recalled Ms. Ahmed, 32. “When we arrive, we don’t know anyone. We don’t have friends. We don’t speak English. But we are safe, and we got help.”
About four out of 10 refugees who come to the United States have no family ties in the country, according to independent estimates. In some cities known for taking in refugees — like Boise, Idaho; New Haven; and Fayetteville, Ark. — those with no family ties are a majority.
On Monday, the Supreme Court threw into question whether such refugees, who are among the most vulnerable people seeking a haven after fleeing persecution or conflict, will be approved for resettlement in the United States.
Those who can show a “bona fide relationship” with a “person or entity” in the United States will not be affected by Mr. Trump’s 120-day halt to refugee admissions or his 90-day ban on travel from six majority-Muslim countries, according to the court’s order. Those refugees or travelers must be admitted, at least for now.
However, those who have no family, business or other ties can be prohibited, the court said.
The justices gave some examples of a bona fide relationship: visiting relatives in the United States, attending a university or taking a job offer.
On a conference call Monday, lawyers who have fought the Trump administration argued that other refugees and travelers should also be allowed in because, like Mr. Dagoum, they often have ties to a nonprofit organization that has been helping them even before they land in the United States.
“Anyone who has an existing relationship with a nonprofit, frankly tens of thousands of refugees,” should be seen as having bona fide ties, said Becca Heller, director of the International Refugee Assistance Project.
Representatives of some resettlement agencies said they were awaiting guidance from the State Department. Although the department did not say Monday how it would interpret the ruling, it is conceivable that it will take a relatively narrow view of the phrase and argue that anyone without a family, university or employment tie can be barred.
That could lead to another round of lawsuits from opponents of the ban, the very situation that Justice Clarence Thomas warned of in a partial dissent in which he called the standard “unworkable.”
“The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’” Justice Thomas wrote. He argued that all refugees and travelers from the six countries should be temporarily barred.
Mr. Trump has said he issued the ban to give his administration time to review its vetting procedures, but opponents argue that the order unconstitutionally discriminates against Muslims. On Monday, Mr. Trump hailed the court’s decision, and his administration said it would begin putting it into effect on Thursday.
“At the very least, there will be delays in refugees’ coming to the United States until we get clarifications from the State Department or the federal court,” said Stephen Yale-Loehr, an immigration law professor at Cornell University.
Clarity on that issue is crucial for the Lutheran Immigration and Refugee Service, which resettled about 13,300 refugees last year.
For example, its affiliate in Fayetteville relies on 13 local congregations whose members have been preparing for the new arrivals.
“They have been waiting for families for months,” said Emily Crane Linn, resettlement director at the affiliate, Canopy Northwest Arkansas. “They have garages filled with furnishings for their apartments.”
The first wave of refugees from any particular country rarely have family ties. Thus, a majority of those arriving from Syria and the Democratic Republic of Congo, two of the most common nationalities of refugees in recent years, are so-called free cases.
As the number of refugees from a country grows, they become sponsors of relatives applying to join them. Until then, the families require intense case management from resettlement agency staff, to show them where to buy groceries, how to ride the bus and how to perform other mundane tasks.
Dr. Heval Kelli, a Syrian refugee, moved to the United States with his family in 2001, knowing no one in his new country. He was greeted by members of a local Episcopal church when he arrived in Clarkston, Ga.
“They brought furniture and food, sat on the ground with us, took us shopping to Walmart,” said Dr. Kelli, 34. “That was the first time I went to Walmart.”
He eventually attended medical school at Morehouse and completed a residency at Emory, where he is now training to be a cardiologist.
Mr. Dagoum, who settled in New Haven, now works at a granite company, packing and shipping marble and tiles. His wife is studying English at a local college.
Integrated Refugee and Immigrant Services, the nonprofit agency that helped Mr. Dagoum, serves mostly people without family connections in the United States.
Linda Bronstein, a senior case manager at the agency, called these “classic refugee cases.”
“All of a sudden, we’re saying these refugees might not be allowed here,” she said.
WASHINGTON — The Supreme Court was shorthanded for most of the term that ended Monday, and it responded with caution, setting a modern record for consensus.
“Having eight was unusual and awkward,” Justice Samuel A. Alito Jr. told a judicial conference a few days after Justice Neil M. Gorsuch joined the court in April. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.”
As Justice Alito’s remarks suggested, the next term, starting in October, will be very different from the past one, which was defined by the long vacancy caused by the death of Justice Antonin Scalia in February 2016 and the court’s strenuous efforts to avoid 4-4 votes.
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The court has already agreed to hear cases on President Trump’s travel ban, a clash between gay rights and claims of religious freedom, constitutional limits on partisan gerrymandering, cellphone privacy, human rights violations by corporations and the ability of employees to band together to address workplace issues.
“Chalk it up to pent-up demand,” said Pratik A. Shah, a lawyer with Akin Gump Strauss Hauer & Feld. “The eight-member court dodged the most provocative or consequential cases, and the new nine-member court is making up for lost time.”
The last term was marked by a level of agreement unseen at the court in more than 70 years. That was a consequence of a lack of divisive disputes on social issues and hard work by the justices, who often favored exceedingly narrow decisions to avoid deadlocks.
The court issued “a lot of what I’d call cautiously unanimous opinions — that is, opinions that are carefully written to decide cases on relatively narrow grounds and to steer clear of big jurisprudential tar pits,” said Jeffrey L. Fisher, a law professor at Stanford.
The court did deadlock twice, in two immigration cases. Those cases will be reargued before all nine justices in the court’s next term. The court also sent a case on a cross-border shooting back to a lower court for further consideration.
Recent terms have ended with blockbuster decisions on gay rights, abortion, affirmative action, health care and voting. “We got used to the idea that every year the court decides several of the biggest national political issues — six or seven consecutive ‘terms of the century’ — but this year saw a regression to the mean,” said Ilya Shapiro, a lawyer with the libertarian Cato Institute.
Less consequential cases seemed to produce consensus. According to data from Lee Epstein, a law professor and political scientist at Washington University in St. Louis, the percentage of cases decided by a 5-to-4 or a 5-to-3 vote was 14 percent, compared to an average since 1946 of 22 percent.
Professor Epstein also devised another measure of consensus, dividing the number of votes in support of the majority or plurality opinion by the total number of votes cast. The last term’s rate, 89 percent, was the highest in at least 70 years.
“This term showed that there is broad agreement across ideological lines, sometimes surprisingly broad, on some important areas of the law,” said William M. Jay, a lawyer with Goodwin Procter. For instance, he said, “the court continues to read the First Amendment to provide robust protection for free speech, even for unpopular speech or unpopular citizens.”
There were, of course, major decisions that revealed deep divisions. One of them, Trinity Lutheran Church v. Comer, lowered the wall between church and state by a 7-to-2 vote.
“This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state,” Justice Sonia Sotomayor wrote in her dissent, which was joined by Justice Ruth Bader Ginsburg. “The court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”
In Ziglar v. Abbasi, the court ruled by a 4-to-2 vote that high-level officials in President George W. Bush’s administration could not be sued for abuses they were accused of committing after the Sept. 11, 2001, attacks. In his dissent, Justice Stephen G. Breyer likened the decision to the Supreme Court’s “refusal to set aside the government’s World War II action removing more than 70,000 American citizens of Japanese origin from their West Coast homes and interning them in camps” in Korematsu v. United States.
But the justices also avoided hearing important disputes by dismissing an appeal in a case on transgender rights after the Trump administration shifted the government’s position and by turning down appeals in cases concerning restrictive voting laws in Texas and North Carolina.
In addressing racial discrimination, the court issued a series of decisions that heartened liberals.
In Buck v. Davis, Chief Justice John G. Roberts Jr. wrote a forceful majority opinion siding with a Texas man who had been sent to death row based on testimony laced with what the chief justice called “a particularly noxious strain of racial prejudice.” In Peña Rodriguez v. Colorado, Justice Anthony M. Kennedy, writing for the majority, said courts must make an exception to the usual rule that jury deliberations are secret when evidence emerges that those discussions were tainted by racism. “Racial bias implicates unique historical, constitutional and institutional concerns,” he wrote.
In Bank of America v. Miami, Chief Justice Roberts provided the crucial fifth vote, joining the court’s four-member liberal bloc, to allow Miami to sue two banks for predatory lending under the Fair Housing Act of 1968.
The decisions amounted to a small but significant trend, said Elizabeth Wydra, the president of the Constitutional Accountability Center, a liberal group. “Just as we have recently seen Justice Kennedy more willing to acknowledge systemic racism in his recent affirmative action and fair housing opinions,” she said, “this term saw Chief Justice Roberts vote in a rather surprising — but welcome — way to acknowledge racial bias in the criminal justice system and make it easier for cities to sue over discriminatory mortgage lending practices.”
If the court leaned left in cases concerning race, it continued to lean right in business cases.
“The court added to its recent track record as a business-friendly forum, particularly on the class-action and arbitration front,” Mr. Shah said. “And class plaintiffs may have even more at stake next term.”
He was referring to a trio of cases in which the court will decide whether employees may band together in legal actions to address workplace issues. The cases are the court’s latest encounter with expansive arbitration clauses.
The court is also likely to take another look at an issue that makes the labor movement nervous: whether workers who choose not to join public sector unions may be forced to pay fees for the unions’ collective bargaining efforts.
Justice Gorsuch’s early votes were reliably conservative, and he seemed poised to take a place on the far-right side of the court’s ideological spectrum alongside its two most conservative members, Justices Clarence Thomas and Alito. Justice Gorsuch’s first consequential vote was to deny a stay of execution to death row inmates in Arkansas over the dissents of the court’s four-member liberal bloc.
Not every case was freighted with ideology. Lisa S. Blatt, a lawyer with Arnold & Porter Kaye Scholer, said a theme ran through any number of cases involving colorful disputes. “The court had no difficulty rallying around the little guy vis-à-vis the government in the name of fairness,” she said.
In Fry v. Napoleon Community Schools, for instance, the court unanimously ruled in favor of a girl with cerebral palsy who sought to bring her service dog, a goldendoodle named Wonder, to school. And in Nelson v. Colorado, the court ruled that states may not keep fines and restitution paid by defendants whose convictions were overturned.
There will be bigger Supreme Court terms. But the one that just ended was valuable, said William Baude, a law professor at the University of Chicago.
“It has been a quiet term, and that is a good thing for the country,” he said. “Over all, this year the court was the least dramatic, and most functional, branch of government.”
“We will look back on this term,” he added, “as the calm before the storm.”