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Posts For: June 24, 2012

Liberal Second-Guessing Won’t Make ObamaCare Constitutional

With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

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With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

The problem wasn’t the tactics pursued by ObamaCare advocates either in court or outside it. The problem was a bill that proposed an expansion of federal power that even the Commerce Clause — that catchall mechanism used to justify every new federal power grab for a century — couldn’t support.

The bill did help generate a political earthquake in the form of the Tea Party that led to the Republican landslide in the 2010 midterms that erased the Democratic majority who passed the act. But better advocacy on the part of the bill’s supporters would not have prevented conservatives and libertarian lawyers from bringing forth the successful challenges that two lower federal courts have already accepted.

If Democrats like Pelosi couldn’t imagine anyone taking those challenges seriously it is not just because they live in a liberal echo chamber where conservative ideas are viewed with as much contempt as conservative politicians. It is because after nearly 100 years of liberal judicial activism that created the current federal leviathan, they had come to believe there were no limits on that power. If Congress could regulate any kind of commerce, why wouldn’t liberals think that this extended even to commerce that didn’t already exist or even inactivity and thereby make it legal for the government to demand that individuals purchase health insurance?

Since for decades liberals have treated a more libertarian approach to the constitution with scorn, why would anyone, especially that former law professor sitting in the White House, have thought differently?

Of course, as the Times points out, the constitutional challenge would have been avoided if the legislation had been framed more explicitly as a tax which the federal government has the right to levy. But Obama and Pelosi had a hard enough time getting a Democrat-controlled Congress to pass it without explicitly selling it as a massive tax increase though that is, in effect, what the bill is. In that form, it would never have been adopted.

As for Turley’s court-packing scheme, the transparently political nature of his appeal renders it absurd. He’s right that there’s nothing sacred about the number nine but since the current format has been in place since 1869, there’s no reason to change this tradition. Any expansion would be inherently political, an attempt to overturn the current court majority by a president and a Congress that didn’t like their opinions on the constitution. If Franklin Roosevelt couldn’t get away with such an idea in 1938 when he proposed it, does anyone seriously believe Barack Obama or Mitt Romney or any other president in the foreseeable future can do so?

The liberal dilemma has no more to do with the number of justices than it does with supposed shortcomings in the strategy adopted by the White House or Congressional Democrats. If the bill goes down this week it will be because a majority on the court have realized that a government that is given the power to invent as well as to regulate commerce is a threat to our liberty. And no clever tactic can make that acceptable to the majority of Americans who oppose ObamaCare or the judges who will vote against it.

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Obama in the Red Zone

For the third day running, Barack Obama’s “Presidential Index” in the Daily Rasmussen Poll is Minus 22 – a huge disparity between the percentage that Strongly Approves of his performance (23) and the percentage that Strongly Disapproves (45). Minus 22 is his worst rating of the year, and the 45 percent that Strongly Disapproves exceeds the 43 percent that Strongly Disapproved of George W. Bush in his final month in office (Obama probably believes this is Bush’s fault).

Overall, 54 percent of likely voters disapprove and 44 percent approve of the president’s performance, but what seems most striking is that the 45 percent Strong Disapproval is approaching an absolute majority, and is a very high percentage of the Total Disapproval. In contrast, Obama’s Strong Approval is barely half his Total Approval, indicating relatively weak support. For a thousand words on this, look at the Boker tov, Boulder! chart this morning, which graphically illustrates the results.

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For the third day running, Barack Obama’s “Presidential Index” in the Daily Rasmussen Poll is Minus 22 – a huge disparity between the percentage that Strongly Approves of his performance (23) and the percentage that Strongly Disapproves (45). Minus 22 is his worst rating of the year, and the 45 percent that Strongly Disapproves exceeds the 43 percent that Strongly Disapproved of George W. Bush in his final month in office (Obama probably believes this is Bush’s fault).

Overall, 54 percent of likely voters disapprove and 44 percent approve of the president’s performance, but what seems most striking is that the 45 percent Strong Disapproval is approaching an absolute majority, and is a very high percentage of the Total Disapproval. In contrast, Obama’s Strong Approval is barely half his Total Approval, indicating relatively weak support. For a thousand words on this, look at the Boker tov, Boulder! chart this morning, which graphically illustrates the results.

At the beginning of the month, Obama’s negative presidential index was “only” Minus 13. It is hard to pinpoint the cause of the dramatic deterioration of his position during the last week (Rasmussen polls are a running three-day average, so the above polling actually covers six days). Perhaps it is a long content-less speech on the economy, a desultory press conference in Mexico, renewed public focus on ObamaCare as a Supreme Court decision nears, unemployment still above where it was supposed to be nearly a trillion dollars ago, extremely high gas prices, continued ineffectuality with Iran and Syria, national security-jeopardizing leaks, a Nixonian invocation of executive privilege, revelations of fictional characters in a belatedly-analyzed autobiography, endless fundraisers with the one percent, bridal-shower fundraising, too many emails asking for three dollars, transparent reversals of prior positions to pander to particular groups, Guinness-record golfing, lack of credible surrogates for talk shows, the absence of a second-term agenda, or the lack of an effective three-word campaign slogan.

It could be any of these things. It’s hard to tell.

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U.S. Must Avoid Embrace of Morsi

Many in the Obama administration may have heaved a sigh of relief this morning when Egypt’s election commission declared Muslim Brotherhood candidate Mohammed Morsi the winner of the country’s presidential election. There were justifiable fears that the Egyptian military would complete the coup d’état it began when the country’s high court tossed the Islamist-controlled parliament out of office by stealing the presidential contest for its preferred candidate. By choosing to attempt to live with the Brotherhood rather than attempt to destroy it, the army may have avoided a bloody civil war that would have drowned Egypt in blood and destabilized the region even further.

But as much as Washington is relieved that the next stage of life in post-Mubarak Egypt will not be one in which the military rules alone, President Obama must resist the impulse to embrace Morsi or to behave in any manner that might lend support to the Brotherhood leader in the power struggle in Cairo that will undoubtedly ensue. As much as the United States should support the principle of democracy, Morsi and his party are no apostles of freedom. Though worries about the U.S. being tainted by association with a military who wishes to perpetuate authoritarian rule are well founded, the danger from a rising tide of Islamism in the wake of the Arab Spring is far more dangerous to American interests.

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Many in the Obama administration may have heaved a sigh of relief this morning when Egypt’s election commission declared Muslim Brotherhood candidate Mohammed Morsi the winner of the country’s presidential election. There were justifiable fears that the Egyptian military would complete the coup d’état it began when the country’s high court tossed the Islamist-controlled parliament out of office by stealing the presidential contest for its preferred candidate. By choosing to attempt to live with the Brotherhood rather than attempt to destroy it, the army may have avoided a bloody civil war that would have drowned Egypt in blood and destabilized the region even further.

But as much as Washington is relieved that the next stage of life in post-Mubarak Egypt will not be one in which the military rules alone, President Obama must resist the impulse to embrace Morsi or to behave in any manner that might lend support to the Brotherhood leader in the power struggle in Cairo that will undoubtedly ensue. As much as the United States should support the principle of democracy, Morsi and his party are no apostles of freedom. Though worries about the U.S. being tainted by association with a military who wishes to perpetuate authoritarian rule are well founded, the danger from a rising tide of Islamism in the wake of the Arab Spring is far more dangerous to American interests.

Too many in the administration have been taken in by the Brotherhood’s propaganda in which they have represented themselves as having no interest in imposing their fundamentalist principles on all of Egypt and the region. Inviting Brotherhood representatives to meet with senior administration officials earlier this year was mistake. As Eli Lake reported in the Daily Beast this week, this even extended to granting a visa to a known member of an active terrorist group.

The Brotherhood claims they will use Turkey’s Islamists as their model. That’s something that should provide little comfort to those who have watched as a secular state heads down the path of extremism at home and confrontation with Israel abroad. But the extremist character of the Islamist movement is difficult to conceal. Were the Brotherhood ever to seize control of all power in Cairo it would not only mean an end to any hope for democracy in Egypt, it would undermine the stability of other Arab countries.

That’s why it would be folly for President Obama to side with Morsi in the coming months or to give the impression that he supports the Brotherhood’s efforts to stop the military from acting as a check on its power.

It bears repeating that there are no good choices available to the United States in Egypt. President Obama has been woefully remiss in attempting to promote democracy, a policy that he seems to associate with the George W. Bush administration and therefore something to be avoided. There are not enough genuine liberals in Egypt, meaning the only real options are the military and the Brotherhood. America should choose neither.

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Scandals a Preview of Second Obama Term

Earlier this year, a hot mic caught an unfortunate bit of candor when President Obama told former Russian President Dmitry Medvedev that once safely re-elected he would have the “flexibility” to please the Kremlin better than he could before November. That confession alerted wavering independents that what they hear on the campaign trail from the president might bear very little resemblance to the policies that a second Obama administration would implement. That is especially true when it comes to foreign policy where the election year Jewish charm policy vis-à-vis Israel has been such a departure from the first three years of his administration.

But however great the contrast may be between what the president is promising and what he plans on delivering, that might be nothing when compared to the difference between what he thinks a second term will be like and the actual experience. Right now, with Mitt Romney continuing to rise in the polls and the Democrats showing weakness around the country, the only thing the president seems to be thinking of is the necessity to do or say anything he needs to in order to beat the Republicans. Setbacks, such as the jobs numbers, and scandals, such as the fallout from the Fast and Furious investigation and the probe into the administration’s press leaks about cyber warfare and other secret matters seem to be merely obstacles to the all-consuming task of securing 270 Electoral College votes. To the extent that they rivet his attention, it is only to the extent of figuring out how to damp down the controversy until after the election.

But these scandals should serve as a reminder to the president that even if he is able to win this year, the following four years may turn out to be an unremitting hell.

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Earlier this year, a hot mic caught an unfortunate bit of candor when President Obama told former Russian President Dmitry Medvedev that once safely re-elected he would have the “flexibility” to please the Kremlin better than he could before November. That confession alerted wavering independents that what they hear on the campaign trail from the president might bear very little resemblance to the policies that a second Obama administration would implement. That is especially true when it comes to foreign policy where the election year Jewish charm policy vis-à-vis Israel has been such a departure from the first three years of his administration.

But however great the contrast may be between what the president is promising and what he plans on delivering, that might be nothing when compared to the difference between what he thinks a second term will be like and the actual experience. Right now, with Mitt Romney continuing to rise in the polls and the Democrats showing weakness around the country, the only thing the president seems to be thinking of is the necessity to do or say anything he needs to in order to beat the Republicans. Setbacks, such as the jobs numbers, and scandals, such as the fallout from the Fast and Furious investigation and the probe into the administration’s press leaks about cyber warfare and other secret matters seem to be merely obstacles to the all-consuming task of securing 270 Electoral College votes. To the extent that they rivet his attention, it is only to the extent of figuring out how to damp down the controversy until after the election.

But these scandals should serve as a reminder to the president that even if he is able to win this year, the following four years may turn out to be an unremitting hell.

It is a rule of politics that second terms tend to be unhappy times for even the most popular of presidents. While presidents may think that they will be free of constraints once the burden of the need to think about re-election is lifted from their shoulders, in many cases the opposite is true. Though a re-elected president has great power, the extra four years is often spent playing defense as Congress, the press and the public begin sifting through the mistakes and scandals. No matter how great the hopes that may have been engendered by his initial campaign, even Barack Obama is subject to the laws of political gravity.

That is why the probes of Fast and Furious and the security leaks are not merely damaging in of themselves but serve as a preview of what a second Obama administration will look like. Right now, the president may think that by stalling Congress with spurious claims of executive privilege he can avoid the consequences of the Justice Department’s misconduct during the course of the Mexican gun running scam. He may also believe that the senior staffers who were undoubtedly guilty of spilling the beans about cyber warfare research and other sensitive matters relating to the confrontation with Iran will be able to prevaricate long enough so as to avoid any political consequences from these transgressions.

But he is kidding himself if he believes victory in November will make these problems go away. The investigations of these and perhaps other transgressions will only gather steam.

So long as either the Senate or the House of Representatives remain in the hands of the Republicans, the Obama White House will be under siege in the next four years as the scandal probes intensify. And if, as is very possible, the GOP will run both, he will not only find his legislative initiatives dead on arrival, but also be forced to watch as the trail of evidence on these scandals leads perilously close to the Oval Office.

Though we only tend to speak of presidents being lame ducks in their last year in office, it is a rare second term that does not expose the arrogance of power that tends to attach itself to many who work in the White House. President Obama was relatively lucky throughout most of his first term in that he and his top staff managed to avoid being mired in scandals even as they picked policy fights that often proved to be losers. But it is likely that Fast and Furious and the leaks will be only the beginning of a series of second term problems that will pick off senior administration figures and even further taint this administration’s reputation. Victory in November will be just the start of his problems, not their solution.

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Killing Obamacare Could Help the President

Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

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Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

Yet, the death of Obamacare would lift a vast amount of uncertainty from the marketplace, and uncertainty, even more than bad news, depresses markets. As Betsy McCaughey pointed out recently in IBD, the requirement that employers with 50 or more employees provide a specified level of health insurance beginning in 2014 or pay a $2000 fine per employee will greatly increase labor costs, by an average of $1.79 an hour for each employee. That would be the biggest government-mandated labor cost hike in American history. This has made employers reluctant to hire, as their future labor costs are to a significant degree currently unknown. And those firms with nearly 50 employees have been very reluctant indeed to cross that threshold, for fear of becoming subject to the mandate.

With that uncertainty suddenly removed, there could be an immediate marked increase in hiring, leading to a fall in the unemployment rate. That would be a Godsend to the Obama campaign.

With the chattering classes collectively holding their breaths, the decision could come Monday. (Actually, I’m betting against Monday. At the penultimate sitting of the Court in June, the chief justice usually announces that the next sitting will be its last before the Court recesses for the summer. Chief Justice Roberts did not make such an announcement last Thursday, and so Monday probably won’t be the last decision day this term. The biggest decision of the year—in this case, the biggest decision in decades—is almost always announced on the last day of the term.)

But if it does come Monday and you want to get the news first, log onto scotusblog.com at ten o’clock tomorrow morning. They’ll be liveblogging the decisions being handed down at that time. The health care opinion is likely to be written by the most senior justice in the majority and so will be among the last to be announced, as decisions are read beginning with those written by the most junior justice. If Chief Justice Roberts is in the majority—which most likely means all or part of the law will be struck down—it will be announced last.

For what it’s worth, the Intrade odds as of Sunday morning are at 78.2 percent that the individual mandate will be thrown out, better than 3-to-1 and up sharply in the last few weeks.

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Has Assad Made a Fatal Mistake?

The downfall of dictators is often their stupidity, arrogance, and unbridled aggression. Saddam Hussein might have stayed in power if he had simply admitted not having weapons of mass destruction. Muammar Qaddafi could have survived if he had not made blood-curdling statements about massacring everyone in Benghazi. And Bashar al-Assad would have a greater chance of survival had not his aircraft defenses shot down a Turkish Air Force F-4 yesterday.

It is still unclear exactly what happened, but the result will surely be to increase Turkey’s role—already substantial—in helping the Syrian opposition.

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The downfall of dictators is often their stupidity, arrogance, and unbridled aggression. Saddam Hussein might have stayed in power if he had simply admitted not having weapons of mass destruction. Muammar Qaddafi could have survived if he had not made blood-curdling statements about massacring everyone in Benghazi. And Bashar al-Assad would have a greater chance of survival had not his aircraft defenses shot down a Turkish Air Force F-4 yesterday.

It is still unclear exactly what happened, but the result will surely be to increase Turkey’s role—already substantial—in helping the Syrian opposition.

It could even spark the creation of “safe zones” inside Syria and make a NATO intervention more likely. The anti-aircraft gunners who brought down the Turkish jet could not have done more damage to their leader if they had tried.

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