The 2010 Midterm Elections

In case you haven’t heard, there’s an election upcoming in a few months.  And Republicans are going to do well.  The interesting question is what effect that will have on constitutional law.

Readers of this blog know that I think the 2008 election marked a realignment.  The fact that GOP will pick up seats in 2010 does not undermine that conclusion.  After all, the President’s party almost always loses seats in his first midterm (1934 is the only exception).  If the GOP actually wins control of Congress, though, that’s a different story.  As far as I can tell, only in 1954 and 1994 did the President’s party do that poorly in its first midterm.  More important, no realigning election was ever followed by such a sharp reversal.  Indeed, if the GOP pulls off another 1994, then the more relevant precedent might be the anti-Populist backlash of the 1890s (which happens to be the subject of my next book).  If that happens, there’ll be plenty of time to talk about how Bryan’s defeat relates to the Obama Administration’s problems.

No matter what happens in November, the most important substantive issue will be whether the repeal of the health care legislation remains a live debate in 2012.  If the GOP concludes that this was a winner for them in 2010, then 2012 will be a referendum on that topic.  Moreover, to the extent that this debate continues, it increases the probability that the courts will take a hard look at the constitutionality of the individual health insurance mandate, as they feel the popular breeze blowing in a new direction.

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4 Responses

  1. Matthew says:

    1934 is not the only exception. In 2002 the GOP gained seats during the interim election when Bush was in office. Also in 1902.

  2. Gerard Magliocca says:

    Right about 2002 — my mistake. 1902 is a little more ambiguous since it was technically McKinley’s second term.

  3. Steven Lubet says:

    It’s not so clear about 2002, given that Bush did not exactly win the 2000 election outright. While it is true that 2002 was his first mid-term election while president, he had no coat tails in 2000 (when Republicans actually lost Senate seats), and thus there was no crop of vulnerable freshmen in Congress.

  4. Todd Klimson says:

    I agree with you. I believe you are pretty much right on. Republicans will gain a few seats but not control of congress. Incumbency return rate is historically well into the high 90th percentile no matter the sentiment. Most voters when going to the poll are inclined to be upset at Congress, but not “Their” Congressman. Republicans have got to go for the jugular in order to win. If you want a friend “buy a dog”.