Commentary Magazine


Posts For: June 2012

Jackpot Justice Takes a Hit

Overturning the veto of Democratic Governor John Lynch, the New Hampshire legislature has enacted a significant reform of medical malpractice, one that can serve as a model for other states.

You can find the details at the Cato @ Liberty website of the Cato Institute, by my friend Walter Olson. Briefly, it gives plaintiffs in medical malpractice claims incentives to solicit an early offer of settlement on economic losses from the defendant. If the plaintiff accepts the offer, pain and suffering compensation would also be paid by the defendant, according to a scheduled assessment as well as “reasonable attorney’s fees.” If the plaintiff turns down the offer, however, and fails to get at least 125 percent of the original offer from a jury award, then he would have to pay the defendant’s reasonable legal fees and expenses.

Under this new procedure, the plaintiff gets his case settled, and his compensation, quickly. He is made whole and gets on with his life. The defendant also has an incentive to settle quickly to avoid huge attorney’s fees of his own and the threat of an off-the-wall jury award.

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Obama Sends Terrorists to Sub-Gitmo Hell

Among the unfortunate things about the ObamaCare ruling is that it’s taking oxygen away from some important stories. None more important than Eli Lake’s sensational scoop at the Daily Beast on the wretched facilities in Somalia where America is sending alleged terrorists caught in the expanded U.S. war on terror in that country. When Barack Obama came to office he described Guantanamo Bay as a “misguided experiment,” owing to the facility’s supposedly harsh conditions. He has since decreed that the United States will no longer accept new prisoners there (he was unable to close the facility altogether); Obama also shuttered CIA black site prisons in Europe. But if Gitmo was a “misguided experiment” and CIA sites beneath American standards of humane treatment, what on earth is this?

Overcrowded, underfunded, and reeking of urine, the Bosaso Central Prison could make even the most dedicated insurgent regret ever getting into the terrorism business. Many inmates don’t have shoes, and instead of uniforms, they wear filthy T-shirts and ankle-length garments wrapped around their waists that resemble sarongs (called ma-awis in Somali). When I visited earlier this year, the warden, Shura Sayeed Mohammed, told me he had 393 prisoners in a place designed to hold no more than 300. He said that since 2009, he had received 16 inmates captured by Americans.

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Why Upholding ObamaCare Will Badly Damage Obama’s Reelection Chances

Having already written about the majority opinion by Chief Justice Roberts, what about the politics of the decision?

I have argued before that while overturning the Affordable Care Act (ACA) would be a debilitating blow to the president, upholding it would create problems of its own. And that’s certainly the case.

For one thing, as others at ”Contentions” have pointed out, the president is now saddled with a huge middle class tax increase. Anchoring the Affordable Care Act in the Tax Clause is the only way it passed constitutional muster—and Republicans will do everything in their power to tether Obama to his tax increase. It doesn’t help the president that the argument that saved ObamaCare contradicted what Obama himself repeatedly said, which is (a) the individual mandate is “absolutely not a tax increase” and (b) he would never in a thousand years raise taxes on the middle class.

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WH Needs Special Prosecutor Now

Senate Republicans have been calling on President Obama to appoint a special prosecutor to look into the national security leaks from the White House. This is even more critical in the wake of the Eric Holder contempt vote, as the same Obama-appointed U.S. attorney is now in charge of dealing with the charges against Holder and the investigation into the intelligence leaks.

The most obvious problem is the conflict of interest. It’s doubtful that U.S. Attorney for D.C. Ronald Machen, an Obama appointee, can fairly investigate his own boss (Eric Holder), or his boss’s boss (President Obama) in either the leak cases or the Fast and Furious stonewalling.

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The Literature of Conversion

Over at the blog of his publisher Tin House this morning, the novelist Christopher R. Beha recommends six books on conversion to Roman Catholicism, the subject of his novel What Happened to Sophie Wilder. In my review, I had observed that Beha’s superb first novel “includes what is perhaps the best conversion scene in an English-language novel since The End of the Affair.” I was happy to see, then, not only that Graham Greene’s 1951 novel made the list, but also that Beha acknowledges that it “significantly influenced What Happened to Sophie Wilder.” It is not often that a critic’s guess is so authoritatively proven right!

One other book mentioned in What Happened to Sophie Wilder also makes it onto Beha’s list — Thomas Merton’s 1948 autobiography The Seven Storey Mountain. This is the book, Beha notes, that “sets Sophie along the path to her conversion.” More significantly, though, it articulates what Beha calls the “common theme” of Catholic novelists: how to “reconcil[e] faith with the demands of the modern world.”

I’d submit that this is not a difficulty that faces Catholics and Catholic novelists alone. It is the difficulty of being religious. Perhaps the difficulty is more glaring, more uncomfortable, for converts than for those who are raised within a faith. (Orthodox Jews refer to the two classes as BT’s, for baalei teshuvah or converts, and FFB’s — those who have been frum [religious] from birth. Too bad Christianity doesn’t have a similar nomenclature.) But it is not this difficulty, in itself, that makes the experience of conversion so inviting a subject for good writers.

Adding to Beha’s list would be easy, especially if it were expanded to include Protestants and Jews. To my mind, the best accounts of conversion ever written belong to John Donne:

Thou hast made me, and shall thy work decay?
Repair me now, for now mine end doth haste,
I run to death, and death meets me as fast,
And all my pleasures are like yesterday,
I dare not move my dim eyes any way,
Despair behind, and death before doth waste
By sin in it, which it towards hell doth weigh;
Only thou art above, and when towards thee
By thy leave I can look, I rise again;
But our old subtle foe so tempteth me,
That not one hour I can myself sustain;
Thy Grace may wing me to prevent his art,
And thou like adamant draw mine iron heart.

Although I am a stranger to Donne’s religious vocabulary (I am often tempted, but not by God’s “old subtle foe”), I admire how beautifully Donne has dramatized the extent of the transformation in a person’s life that is wrought by conversion: behind, before, above, no matter where he looks, the religious person finds the meaning of everything has been transfigured.

William James’s chapters on conversion are the weakest in The Varieties of Religious Experience. James sounds like Rielle Hunter on the subject. Conversion, he says, changes “the habitual center of [a man’s] personal energy”:

It makes a great difference to a man whether one set of his ideas, or another, be the center of his energy; and it makes a great difference, as regards any set of ideas which he may possess, whether they become central or remain peripheral in him. To say that a man is “converted” means, in these terms, that religious ideas, previously peripheral in his consciousness, now take a central place, and that religious aims form the habitual center of his energy.

What James leaves out of account is God (“Only thou art above”). What he gets right is the importance of ideas. In his novel, Beha was also very good on this aspect of conversion, which usually goes unremarked. After Sophie reads The Seven Storey Mountain while a guest in a Catholic home, she discovers an entire literature — a subterranean literature for someone like her who was raised on the Western literary canon — a self-contained literature with its own rules and conventions, its own strategies and expectations, its own classics and commercial hacks. Beha grasps what few outsiders to religion understand: conversion also changes a person’s reading habits. Rilke gives way to Ratzinger, or Hemingway to the Hafetz Hayim.

A special subgenre of the literature is reserved for narratives about conversion to Judaism. The best-known title is Bernard Malamud’s The Assistant, in which “After Passover, he [Frank Alpine] became a Jew.” The autobiography of the Holocaust scholar David Patterson, who converted at the age of 42 (“Or perhaps it would be better to say that I stepped across a threshold leading to the path toward becoming a Jew”), is remarkably moving. It’s called Pilgrimage of a Proselyte.

Younger Jewish writers have begun to explore a more uniquely Jewish phenomenon — the experience of “return to Orthodoxy” (as it’s called, even when the Jew who “returns” was never Orthodox to begin with). In The World Without You, his recent saga of a secular liberal Jewish family, Joshua Henkin includes one daughter who has become a baalat teshuvah, a “born-again” Jew. She is also, not surprisingly, the only one of the three daughters with children. The single best account of the Jewish “return,” though, is Zoë Heller’s astounding and under-valued novel The Believers. Anyone who loved Christopher Beha’s first novel should read Heller’s immediately afterwards — for a rich appreciation of the differences in religious conversion, and in writing about it.

The New “Shared Responsibility” Power

So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act – to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

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The Chief Justice’s Irresponsible Decision

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

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Ruling Has Silver Lining for Romney

I find it hard to believe the spin that the Supreme Court upholding the health care law is somehow politically better for Republicans because it will “energize the base.” Nullifying Obama’s signature legislative achievement — which he rammed through while the economy was on the brink — would have been a powerful blow to his campaign (and don’t tell me that wouldn’t have galvanized the conservative base just as well).

But there is a silver lining here for Mitt Romney. If the Court had overturned the law in its entirety, Romney would have been under intense pressure to provide a detailed alternative — a challenge that, as David Frum points out, would be difficult enough for him after the election. This would be a far more perilous task during the election, which is why, so far, Romney has avoided it.

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When Legacy and Legitimacy Collide

In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

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An Enormous Expansion of Federal Powers

The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

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The Damage John Roberts Has Done

There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.

Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.

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Obama Hit on Tax Hike Broken Promise

Get used to hearing about Obama’s “massive” middle-class tax hike from Republicans, as they try to squeeze lemonade from yesterday’s Supreme Court decision. The administration has been on the record repeatedly arguing that the mandate was a penalty, not a tax, and one of Obama’s more memorable campaign promises was that he wouldn’t raise taxes on those making more than $250,000 a year — his red line for the middle class. This was upended by the decision yesterday, and as Forbes points out, there are now seven different ObamaCare tax hikes on under-$250k-a-year earners.

RNC fires the first shot with this tough new ad (h/t Ed Morrissey):

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Obama Won Ruling But Lost His Dignity

Following the Supreme Court’s decision on ObamaCare, a degree of celebration was expected. Many in the pundit class have said the Court’s decision could be the single most influential event on the November election.

After the dust settled and it became clear that the healthcare law survived the gavel, officials in the Democratic National Committee (DNC) and Obama administration went to their computers to let off some steam.

The executive director of the DNC took to Twitter and sent out the following message: “it’s constitutional. Bitches.” The DNC’s new media director vented on Twitter, immediately tweeting, “Overheard in the office: ‘TAKE THAT MOTHER******S!!’” The tweet was soon deleted, but nothing on the Internet disappears completely. Screen shots were taken and that soon appeared on Twitchy, which was then linked to by Drudge.

One might understand this momentary weakness and forgive the total loss of decorum if it wasn’t then replicated by the president’s digital and campaign staff. But it was.

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‘I Am the Girl in the Bunker’

Many young American Jews, especially those who are educated at Orthodox schools, often spend a year in Israel between high school and college studying. Talia Lefkowitz, a graduate of New York City’s Ramaz, instead has spent the past year with a paratrooper unit in Israel. She writes powerfully in limpid prose of her experience in the midst of rocket attacks this morning at Tablet:

Hours go by without a rocket, and I start to relax. Maybe it’s over. The media, even the Israeli newspapers, are saying that it is no big deal. I start to believe them. But then another bomb hits without warning, and this one falls just feet from us. It’s like an earthquake. The room sways, and I fall out of my bed. The next few minutes seem to move in slow motion. Screaming, frenzy, smoke. Everyone running. Hands covering their ears. Wiping their eyes. Holding tissues over their mouths and noses.

Read the whole thing.

 

Page 15 and Page 35

In today’s New York Post, I speculate that Chief Justice John Roberts may have wanted us to see the illogic in his fascinatingly sophistic opinion in the Obamacare case:

Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

The whole piece is here.

Iran Worried? Obama Guts Sanctions

Three rounds of the P5+1 nuclear talks with Iran have proven President Obama’s “window of diplomacy” a colossal failure. But Secretary of State Clinton as well as various administration cheerleaders have been reminding us lately that the international sanctions on Tehran that have been belatedly put in place are just about to really bite. At the end of the month, the West will impose an oil embargo on Iran that could really hurt its economy and perhaps bring the regime to its knees if it is universally observed and vigorously enforced.

But today’s announcement that the Obama administration will grant China and Singapore a six-month exemption from the sanctions shows the confident manner the Iranians displayed at the nuclear talks was not a false front. Having forearmed themselves in the period leading up to the sanctions by securing more contracts with the Chinese, Iran dared the Americans to risk a confrontation with Beijing. The result is that Tehran’s belief President Obama and his Western allies are bluffing has been confirmed rather than debunked. This will act as a virtual green light for the Iranians to keep pushing ahead toward their nuclear goal while Western leaders posture but do little to stop them.

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Holder Found in Contempt of Congress

As expected, the House voted to hold Attorney General Eric Holder in contempt of Congress, largely along party lines, 255 to 67. Seventeen Democrats crossed over to vote for contempt with the GOP, while more than 100 Democrats sat out the vote in protest.

Now that the resolution has passed, the issue will be turned over to the Obama-appointed U.S. Attorney for D.C. Ronald Machen to decide whether he wants to pursue charges against Holder, who is, of course, Machen’s boss. Machen, as you may recall, is also leading the investigation into the White House national security leaks, and Republicans have already been raising alarms about that conflict of interest.

According to CNN, Machen has no obligation to do anything with the Holder dispute, and considering his position, he probably won’t. But the GOP will likely point out that the White House is blocking two investigations from independent scrutiny, a major deviation from its rhetoric on transparency.

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Entitlements Swallowing Up Federal Budget

The news today has been all health care, all the time. And understandably so. But amid the laser-like focus on the Supreme Court ruling  upholding President Obama’s new health care system, it is important not to lose sight of the bigger picture. Health care is merely the latest in a long line of social welfare expenditures, going all the way back to Social Security, Medicare and Medicaid, which have swallowed up an ever-growing share of the federal budget—and the national economy.

As this useful Heritage Foundation chart shows, entitlement spending first exceeded defense spending in 1976. Ever since, the trend has been getting more lopsided with entitlements taking up ever more of the economy and defense ever less. That gap has become especially pronounced since President Obama took office in 2009. The percentage of GDP going to the federal government grew from 20.7 percent in 2008 to 25.1 percent in 2011 before dipping slightly to 23.2 percent this year. Meanwhile, the state governments are taking another 15 percent, which means that as a total share of the economy the government is now consuming roughly 40 percent, and of that, less than five percent is going to the military.

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Can Obama Avoid Refighting 2010?

When President Obama spoke in the aftermath of his victory at the Supreme Court, he never mentioned the word “tax.” The ruling that saved his signature health care legislation made it clear his pledge the bill was not a tax was a clear deception. But while not acknowledging that the Affordable Care Act was passed by means of a political subterfuge, he did expressly ask Americans not to “refight the political battles of two years ago.” That was not so much a plea that the debate about the bill not be revisited but a worry that what will ensue will be a rematch of the 2010 midterm elections which were fought largely on the question of ObamaCare. While the president has every reason to exult today, the biggest question about his re-election effort now becomes whether he can indeed avoid a replay of a contest that ended in a rout of the Democrats.

Though the president is the clear winner today, the Court did hand Republicans an issue on which they can put Democrats at a disadvantage. The ruling established that ObamaCare constitutes a massive across-the-board tax increase that will come down hardest on the middle class, a group of voters who the president insists are exempt from his efforts to hike levies on the rich. But GOP optimists need to understand that presidential elections are very different animals from midterms. Although the Court may have helped revive the Tea Party, circumstances have changed since their heyday in 2010. Nevertheless, the stage has been set for the rematch that the president dreads.

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The Behavioral Modification Tax

“Don’t give them any ideas” may be one of the most overused phrases, but I think, despite its ubiquity, it sums up today’s Supreme Court decision quite well. And it’s why I disagree slightly–perhaps only rhetorically–with John Steele Gordon’s take on ObamaCare’s survival. John writes that the decision today “greatly expanded the taxing power” of the government by ruling the individual mandate is constitutional as a massive tax. It seems, however, that Congress really does have this expansive taxing power to begin with—John Roberts merely “gave them the idea.” It’s best to think of this less as an unprecedented interpretation of existing law and more as an unprecedented application of existing law.

But nonetheless, John’s point is sound. The Commerce Clause of the Constitution was left intact–but also made virtually irrelevant. What the Supreme Court did today was offer a ludicrously simple—and expensive—way around it. Want to force individuals to do something from which the Constitution protects them? Just add a financial penalty to it. This way, you can increase your control over people and help yourself to some of their cash.

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