Commentary Magazine


Topic: Congress

Will Congress Avert Defense Cuts?

Both parties have good reason to avoid another government shutdown standoff this fall, as the fiscal year ends a little more than a month before the election. Any hint of Republican obstructionism in the House will be used in anti-Romney attacks, and Senate Democrats won’t want to rock the boat so soon before Election Day. Roll Call reports both sides are nearing a compromise on a continuing resolution to fund the government for another six months, which they’ll vote on before the Sept. 30 deadline:

The announcement of a House-Senate deal to fund the government for the six months after Sept. 30 appeared imminent this afternoon.

Senate Majority Leader Harry Reid (D-Nev.) has said that any spending agreement would have to be at the $1.047 trillion level established by last year’s debt limit law. Current funding runs out at the end of the government’s fiscal year Sept. 30, and without new appropriations or a stopgap continuing resolution, the government would shut down. …

The continuing resolution could not be considered by either chamber until after the August recess, sources said, because the Congressional Budget Office would need time to score the proposal. In addition, the White House’s Office of Management and Budget will need to provide Appropriations Committee staffers with lists of changes from the current spending levels called “anomalies” for inclusion in the measure.

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Both parties have good reason to avoid another government shutdown standoff this fall, as the fiscal year ends a little more than a month before the election. Any hint of Republican obstructionism in the House will be used in anti-Romney attacks, and Senate Democrats won’t want to rock the boat so soon before Election Day. Roll Call reports both sides are nearing a compromise on a continuing resolution to fund the government for another six months, which they’ll vote on before the Sept. 30 deadline:

The announcement of a House-Senate deal to fund the government for the six months after Sept. 30 appeared imminent this afternoon.

Senate Majority Leader Harry Reid (D-Nev.) has said that any spending agreement would have to be at the $1.047 trillion level established by last year’s debt limit law. Current funding runs out at the end of the government’s fiscal year Sept. 30, and without new appropriations or a stopgap continuing resolution, the government would shut down. …

The continuing resolution could not be considered by either chamber until after the August recess, sources said, because the Congressional Budget Office would need time to score the proposal. In addition, the White House’s Office of Management and Budget will need to provide Appropriations Committee staffers with lists of changes from the current spending levels called “anomalies” for inclusion in the measure.

It’s not exactly happy news that Washington is going to take up another short-term spending agreement, but there really isn’t an alternative. Congress can’t even agree on an actual budget during a non-election year, and there’s no way anything is going to be accomplished in the politically-charged two months leading up to the election.

But there is one important provision that Congress can add to the continuing resolution, which could avert the automatic defense cuts under sequestration. Defense News reported on the option during the weekend:

Increasingly concerned that time is running out for the U.S. Congress to avoid $500 billion in automatic defense cuts, the Pentagon is assessing all options, including the possible implications of a one-year, $100 billion government-wide, “mini-sequester” deficit-reduction deal, Defense Department and industry sources said. …

Congress inserts language into a continuing resolution that delays sequestration another year or two when there is a less-heated political environment, but the government implements the first and perhaps second year of cuts, which some refer to as the “mini-sequester.”

The $100 billion in government-wide cuts seem far preferable to $500 billion in defense cuts alone. The one- or two-year window would also give Congress more time and a less-politicized atmosphere to come up with a plan to replace the automatic cuts.

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House GOP Releases First F&F Report

The House Oversight Committee is holding five Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) officials responsible in the Fast and Furious operation failures, according to a draft report released last night:

The report determined that five officials in the ATF were responsible, ranging from a former low-ranking special agent to the former acting head of the agency. Congressional investigators called attention to the weak leadership at the ATF and pushed for the agency to be strengthened.

“Strong leadership is needed at ATF to overcome the deep scars left by Operation Fast and Furious,” the report states. “Greater accountability within ATF would underscore that ineffective supervision and recklessness both have consequences.”

Specifically, the report pins blame on former Special Agent in Charge of the Phoenix Field Division William Newell, former Deputy Assistant Director for Field Operations William McMahon, former Assistant Director for Field Operations Mark Chait, the former Deputy Director William Hoover, and former acting ATF director Kenneth Melson.

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The House Oversight Committee is holding five Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) officials responsible in the Fast and Furious operation failures, according to a draft report released last night:

The report determined that five officials in the ATF were responsible, ranging from a former low-ranking special agent to the former acting head of the agency. Congressional investigators called attention to the weak leadership at the ATF and pushed for the agency to be strengthened.

“Strong leadership is needed at ATF to overcome the deep scars left by Operation Fast and Furious,” the report states. “Greater accountability within ATF would underscore that ineffective supervision and recklessness both have consequences.”

Specifically, the report pins blame on former Special Agent in Charge of the Phoenix Field Division William Newell, former Deputy Assistant Director for Field Operations William McMahon, former Assistant Director for Field Operations Mark Chait, the former Deputy Director William Hoover, and former acting ATF director Kenneth Melson.

The Hill reports that all five of these officials have been reassigned to other positions. But this oversight report is just the beginning. There are two more reports set to be released, which will both deal with the Department of Justice directly. According to The Hill, the next one will be focused on the deputy attorney general’s office, and the third one will address the failings at the top level of the attorney general’s office and AG Eric Holder. The point of the staggered release may be to give Obama time to back down on executive privilege, Allahpundit writes:

The point of this leak, I assume, is to give Obama one last chance to drop his executive privilege claim over the DOJ documents that [Rep. Darrell] Issa wants to see. (The LAT quotes the report as saying it’s based on “the best information available as of now.”) If he does that, then the report will be held back while GOP investigators go through the new evidence. If he doesn’t do it, then the GOP can argue that there must be nothing in those e-mails that exculpates any of the five guys they’ve named.

Anybody think there’s a chance of this happening? Me neither.

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McCain’s Stance on Cybersecurity Is Wrong

There are few politicians–heck, few Americans, period–for whom I have greater respect than John McCain. Not only do I have endless admiration for his character, I find his policy judgment, especially in the national security area, to be close to faultless. Which may be just another way of saying I seldom disagree with him. But I find myself in disagreement with his stance on cybersecurity–as does one of his closest Senate colleagues, Joe Lieberman.

Lieberman is co-sponsoring legislation that would allow the Department of Homeland Security to set minimal cybersecurity standards for air traffic control systems, dams, power plants and other such facilities that are absolutely essential to the safe functioning of the American economy. This is a major issue at a time when, as Gen. Keith Alexander, the head of the National Security Agency and U.S. Cyber Command, has just warned cyberattacks aimed at U.S. infrastructure increased seventeenfold from 2009 to 2012. General Alexander further said that “on a scale of 1 to 10, American preparedness for a large-scale cyber-attack is ‘around a 3.’ ”

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There are few politicians–heck, few Americans, period–for whom I have greater respect than John McCain. Not only do I have endless admiration for his character, I find his policy judgment, especially in the national security area, to be close to faultless. Which may be just another way of saying I seldom disagree with him. But I find myself in disagreement with his stance on cybersecurity–as does one of his closest Senate colleagues, Joe Lieberman.

Lieberman is co-sponsoring legislation that would allow the Department of Homeland Security to set minimal cybersecurity standards for air traffic control systems, dams, power plants and other such facilities that are absolutely essential to the safe functioning of the American economy. This is a major issue at a time when, as Gen. Keith Alexander, the head of the National Security Agency and U.S. Cyber Command, has just warned cyberattacks aimed at U.S. infrastructure increased seventeenfold from 2009 to 2012. General Alexander further said that “on a scale of 1 to 10, American preparedness for a large-scale cyber-attack is ‘around a 3.’ ”

The only way to raise our level of preparedness is to give the federal government more authority to protect civilian infrastructure. As things stand, Alexander’s NSA can mount offensive cyberoperations against other countries but can only protect Defense Department networks in this country. The Department of Homeland Security is supposed to protect the civilian networks on which we all depend–and whose disruption via cyberattack could cripple our economy. But DHS does not have the resources or authorities to get the job done. Understandable concerns about privacy have made it impossible to fix this situation on Capitol Hill. Lieberman’s legislation is a start toward fixing this major vulnerability but, thanks to objections from Sen. McCain and the Chamber of Commerce, the bill has been watered down so the cybersecurity standards will now be optional. Optional standards make sense when it comes to governing the size of sodas–not when it comes to protecting critical infrastructure.

While the federal government has undoubtedly extended its reach into all kinds of areas where it does not belong, national defense remains its core responsibility–and in the 21st century that must mean defense from cyberthreats as well as physical ones. Until Congress moves to fix our vulnerabilities, we will remain wide open to attack by China, Russia, and other countries in the forefront of developing offensive cyberwarfare capabilities.

One only need look at the damage that the Stuxnet virus–cooked up by the U.S. and Israel–did to the Iranian nuclear program; now imagine the Iranians returning the favor with a virus that incapacitates major parts of the American electric grid. That is a nightmare scenario that we must worry about, and Congress’s failure to act will only encourage the world’s cyberpredators to continue developing and deploying ever-more fiendish computer weapons against us.

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Finding an Alternative to Defense Cuts

With the sequester looming, Republicans are scrambling for an alternative that will save the defense budget and the defense industry. The Hill reports on one idea being floated by Sen. Mitch McConnell, which would increase government and sales fees — but the idea could violate Grover Norquist’s anti-tax pledge:

“If you want to turn off the sequester, and I think that’s a good idea, there is a way to do it; we spent a lot of time last year finding legitimate pay-fors in the Biden talks,” McConnell said. “There are all kinds of legitimate pay-fors that were studied on a bipartisan basis in the so-called Biden talks, leading up to the final passage of the Budget Control Act.”

McConnell’s comments reflect a growing urgency among Republicans on Capitol Hill about finding a compromise to stop $55 million in spending cuts slated for defense programs in 2013.

Senate Majority Leader Harry Reid (Nev.) and other Democrats have insisted that any replacement of the so-called defense sequester also reduce cuts to domestic programs and raise new revenues.

Focusing on sales and federal fees could be a way to raise revenues without violating the tax pledge GOP lawmakers have made to their constituents.

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With the sequester looming, Republicans are scrambling for an alternative that will save the defense budget and the defense industry. The Hill reports on one idea being floated by Sen. Mitch McConnell, which would increase government and sales fees — but the idea could violate Grover Norquist’s anti-tax pledge:

“If you want to turn off the sequester, and I think that’s a good idea, there is a way to do it; we spent a lot of time last year finding legitimate pay-fors in the Biden talks,” McConnell said. “There are all kinds of legitimate pay-fors that were studied on a bipartisan basis in the so-called Biden talks, leading up to the final passage of the Budget Control Act.”

McConnell’s comments reflect a growing urgency among Republicans on Capitol Hill about finding a compromise to stop $55 million in spending cuts slated for defense programs in 2013.

Senate Majority Leader Harry Reid (Nev.) and other Democrats have insisted that any replacement of the so-called defense sequester also reduce cuts to domestic programs and raise new revenues.

Focusing on sales and federal fees could be a way to raise revenues without violating the tax pledge GOP lawmakers have made to their constituents.

Democrats are demanding some sort of revenue-increasing measure to offset the defense cuts. Some possibilities that may not violate the anti-tax pledge could include fees related to Fannie Mae and Freddie Mac, and an increase in TSA fees — but Norquist’s group, Americans for Tax Reform, told The Hill that it would need to see the specific legislation before deciding whether it violates the pledge.

There are also some actions Congress can take in late September, when last year’s continuing resolution funding the government expires. As the Bipartisan Policy Center has pointed out, Congress could pass another continuing resolution to exempt war funding from the defense cuts — though that could also mean that other defense programs take a bigger hit. The Center on Budget and Policy Priorities has suggested that Congress could increase war funding this fall to a level that offsets the sequestration cuts, which is an interesting idea but would result in no real-life reductions. If it comes to that, then Congress should obviously do everything in its power to save defense; but considering our fiscal situation, it would be preferable to find other non-defense cuts to offset it, if possible.

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The Damaging Sequester

If you missed Thursday’s Wall Street Journal editorial on defense sequestration, go back and read it. It’s as powerful a case as I’ve seen about the damage that mindless budget cutting will do to our nation’s defense. It also makes a powerful case that President Obama is being negligent for refusing to get together with concerned lawmakers to stop the deep slashes in defense spending that are due to begin in January. Instead, the president and Sen. Harry Reid are using the threat of sequestration to try to pressure Republicans into agreeing to tax increases.

Of course, the fault is not entirely the president’s. Hill Republicans also bear part of the blame, as the Journal notes, for accepting “the sequestration deal while leaving entitlements off the table, thus handing Mr. Obama more leverage.” That Republicans voted as they did last summer, despite the misgivings of many members, was understandable given that the federal government faced the threat of default if the budget ceiling wasn’t lifted—but nevertheless, the vote was a mistake and one that may come back to haunt the country.

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If you missed Thursday’s Wall Street Journal editorial on defense sequestration, go back and read it. It’s as powerful a case as I’ve seen about the damage that mindless budget cutting will do to our nation’s defense. It also makes a powerful case that President Obama is being negligent for refusing to get together with concerned lawmakers to stop the deep slashes in defense spending that are due to begin in January. Instead, the president and Sen. Harry Reid are using the threat of sequestration to try to pressure Republicans into agreeing to tax increases.

Of course, the fault is not entirely the president’s. Hill Republicans also bear part of the blame, as the Journal notes, for accepting “the sequestration deal while leaving entitlements off the table, thus handing Mr. Obama more leverage.” That Republicans voted as they did last summer, despite the misgivings of many members, was understandable given that the federal government faced the threat of default if the budget ceiling wasn’t lifted—but nevertheless, the vote was a mistake and one that may come back to haunt the country.

The good news is it is not too late to prevent these devastating cuts from taking place—but to achieve anything we will need to break through the partisan gridlock. At this point, that looks like a long shot.

 

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Dems to Turn Obama Campaign Talking Points into Legislation

Democrats in Congress frustrated by President Obama’s repeated refusal to release all of his papers from his days in the Illinois state senate and his college transcripts are introducing legislation that would force the president to release his political records and Columbia transcripts–just in case he misrepresented his back story to enable his transfer there.

Just kidding! Democrats are introducing legislation to force Mitt Romney to release his tax returns. Running out of retired baseball players to prosecute and looking for some other creative ways to cynically use their taxpayer-funded salaries to waste everyone’s time and money on a political stunt designed to treat the Congress as if it were a liberal super-PAC, Democrats have seized on the issue of Romney’s tax returns as a nifty way to legislate campaign ads from the Senate floor. Senators Carl Levin and Dick Durbin can’t even pretend that this is not what they’re doing, even though the legislation would obviously force all candidates to comply:

Sen. Carl Levin told reporters that the Senate proposal would shed new light on the use of shell corporations based overseas to help U.S. companies and individuals avoid U.S. taxes. But Durbin confirmed the timing of the proposal is designed to highlight Democratic complaints with Romney’s investments.

“Clearly, I think the American people are entitled to more,” Durbin said, of the two years of tax returns Romney has so far said he will release. “I also think he has an obligation to explain why he and his family decided that offshore tax havens are the right place to park their money and their wealth. Those are legitimate questions.”

The two suggested they would move the item as an amendment to some other larger bill in coming weeks, which could force a Senate floor debate.

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Democrats in Congress frustrated by President Obama’s repeated refusal to release all of his papers from his days in the Illinois state senate and his college transcripts are introducing legislation that would force the president to release his political records and Columbia transcripts–just in case he misrepresented his back story to enable his transfer there.

Just kidding! Democrats are introducing legislation to force Mitt Romney to release his tax returns. Running out of retired baseball players to prosecute and looking for some other creative ways to cynically use their taxpayer-funded salaries to waste everyone’s time and money on a political stunt designed to treat the Congress as if it were a liberal super-PAC, Democrats have seized on the issue of Romney’s tax returns as a nifty way to legislate campaign ads from the Senate floor. Senators Carl Levin and Dick Durbin can’t even pretend that this is not what they’re doing, even though the legislation would obviously force all candidates to comply:

Sen. Carl Levin told reporters that the Senate proposal would shed new light on the use of shell corporations based overseas to help U.S. companies and individuals avoid U.S. taxes. But Durbin confirmed the timing of the proposal is designed to highlight Democratic complaints with Romney’s investments.

“Clearly, I think the American people are entitled to more,” Durbin said, of the two years of tax returns Romney has so far said he will release. “I also think he has an obligation to explain why he and his family decided that offshore tax havens are the right place to park their money and their wealth. Those are legitimate questions.”

The two suggested they would move the item as an amendment to some other larger bill in coming weeks, which could force a Senate floor debate.

I, for one, agree that the American people are entitled to more. I’d start with a budget–something Senate Democrats steadfastly refuse to do. GOP House Speaker John Boehner also thinks the American people deserve more: “The American people are asking, where are the jobs? They’re not asking where in the hell the tax returns are,” he told the Washington Post.

Well that may be, but what could Durbin and Levin possibly care what Americans are asking for? It’s silly season, after all–a time that seems strangely permanent in Harry Reid’s Senate. Besides, it’s just congressional legislation designed with a specific individual political opponent of Durbin and Levin’s in mind. It’s not like there’s any way such a standard could be abused. What could possibly go wrong?

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DISCLOSE Act Shields Labor Unions

How’s this story for further proof that the real point of the DISCLOSE Act is not transparency, but kneecapping conservative groups while protecting labor unions from disclosure burdens? The Free Beacon’s CJ Ciaramella reports that Senate Democrats dropped a key provision from the DISCLOSE Act requiring political groups to disclose their names in the advertisements they fund:

“The ‘stand by your ad’ provision was dropped in response to objections we’ve heard from folks on the other side of the aisle,” the spokesman said. “It’s now targeted specifically at requiring disclosure.”

However, a senior Republican aide told the Free Beacon the provision was dropped due to union pressure.

The “stand by your ad” provision would have required the CEO or equivalent position of an organization buying electioneering ads—AFL-CIO President Richard Trumka, for example—to endorse them, similar to the endorsements required at the end of ads purchased by political campaigns.

“The Trumkas of the world aren’t exactly the warm, fuzzy personalities you want appearing at the end of your ad,” the aide said.

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How’s this story for further proof that the real point of the DISCLOSE Act is not transparency, but kneecapping conservative groups while protecting labor unions from disclosure burdens? The Free Beacon’s CJ Ciaramella reports that Senate Democrats dropped a key provision from the DISCLOSE Act requiring political groups to disclose their names in the advertisements they fund:

“The ‘stand by your ad’ provision was dropped in response to objections we’ve heard from folks on the other side of the aisle,” the spokesman said. “It’s now targeted specifically at requiring disclosure.”

However, a senior Republican aide told the Free Beacon the provision was dropped due to union pressure.

The “stand by your ad” provision would have required the CEO or equivalent position of an organization buying electioneering ads—AFL-CIO President Richard Trumka, for example—to endorse them, similar to the endorsements required at the end of ads purchased by political campaigns.

“The Trumkas of the world aren’t exactly the warm, fuzzy personalities you want appearing at the end of your ad,” the aide said.

The Senate votes on the DISCLOSE Act today, and the main provision remaining would require political groups to disclose contributions that are more than $10,000. Of course, public sector unions take most of their money in (often mandatory) dues, which means they would largely fly under the radar on that requirement.

Again, the DISCLOSE Act is not about political disclosure and transparency, which are both important and laudable goals. It’s about stifling free speech. The ACLU, not exactly a pro-corporate group, has raised alarms about the legislation for the last few years. In a March letter (via the Free Beacon), the organization urged members of Congress to vote against the DISCLOSE Act:

We acknowledge that the sponsors of the DISCLOSE Act seek the laudable goal of fair and participatory federal elections. We also appreciate the drafters’ efforts to address the ACLU’s concerns with previous campaign disclosure legislation.  And, we do support numerous campaign disclosure and fair election measures that promote and inform the electorate, including disclosures of corporate political spending to shareholders and rules that provide low-cost airtime to all political candidates.

However, we believe this legislation ultimately fails in its attempts to improve the integrity of our campaigns in any substantial way, while significantly harming the speech and associational rights of Americans. We urge you to oppose S. 2219 when it is considered before the committee.

The ACLU is right, for the following reasons:

  1. If you’re fortunate enough to own a newspaper or a television channel, you can use the platform to support or oppose candidates and legislation. Why shouldn’t private citizens who don’t own newspapers be allowed to  do the same by investing in their own media platforms — i.e. TV commercials, films, or print ads?
  2. If this is protected speech, then what right does the government have to limit it?
  3. If this is protected speech, why shouldn’t donors have anonymous speech rights?

Those in the media who support this misguided legislation because it purports to encourage disclosure might want to reconsider. Transparency in elections shouldn’t be bought at the price of free speech.

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Symbolic Repeal Puts Dems on the Record

Five Democrats broke with their party to support the bill to repeal ObamaCare, which is just two more than in 2011. House Republicans supported it unanimously, Fox News reports:

House lawmakers voted Wednesday to repeal the federal health care overhaul — the latest in a long line of anti-”ObamaCare” votes, but the first since the Supreme Court upheld the law and defined one of its key provisions as a “tax.”

The House has voted more than 30 times to scrap, defund or undercut the law since Obama signed it in March 2010. As with those bills, the repeal bill approved Wednesday on a 244-185 vote faces certain demise in the Democrat-controlled Senate.

But Republicans were looking to get lawmakers back on record on the law in the wake of the high court ruling last month. The ruling upheld most the law as constitutional, but in doing so determined that the controversial penalty on those who do not buy insurance technically qualifies as a “tax” and not a “penalty” as the administration had claimed. That definition fueled GOP criticism of the law, and put some Democrats in a politically tricky position.

The bill won’t actually go anywhere — Harry Reid would block a Senate vote on it, not that it would have a chance of passing there anyway. As a completely gratuitous precaution President Obama has also vowed to veto the bill if it miraculously ends up on his desk.

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Five Democrats broke with their party to support the bill to repeal ObamaCare, which is just two more than in 2011. House Republicans supported it unanimously, Fox News reports:

House lawmakers voted Wednesday to repeal the federal health care overhaul — the latest in a long line of anti-”ObamaCare” votes, but the first since the Supreme Court upheld the law and defined one of its key provisions as a “tax.”

The House has voted more than 30 times to scrap, defund or undercut the law since Obama signed it in March 2010. As with those bills, the repeal bill approved Wednesday on a 244-185 vote faces certain demise in the Democrat-controlled Senate.

But Republicans were looking to get lawmakers back on record on the law in the wake of the high court ruling last month. The ruling upheld most the law as constitutional, but in doing so determined that the controversial penalty on those who do not buy insurance technically qualifies as a “tax” and not a “penalty” as the administration had claimed. That definition fueled GOP criticism of the law, and put some Democrats in a politically tricky position.

The bill won’t actually go anywhere — Harry Reid would block a Senate vote on it, not that it would have a chance of passing there anyway. As a completely gratuitous precaution President Obama has also vowed to veto the bill if it miraculously ends up on his desk.

But 185 Democrats are now on the record supporting Obamacare, even after the SCOTUS decision and the classification of the mandate as a “tax.” This will be powerful ammunition for Republican congressional candidates leading up to Election Day. Considering the consistent majority public opposition to Obamacare, It’s surprising that just two Democrats switched sides since the 2011 vote. Maybe even vulnerable Dems figured they already did the damage by supporting Obamacare in the first place — what’s one more vote in favor?

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Health Care Vote Not Just for Show?

Some conservatives have complained that the House vote to repeal ObamaCare tomorrow is just for show and has no chance of passing the Senate or — even if it miraculously did — surviving a presidential veto. True, but so what? Many voters are just starting to tune in to the general election, and it’s worth getting the latest positions of House lawmakers on the record. For Democrats running in conservative districts, this could be the last shot to oppose the unpopular health care law before the election. For Republicans, it’s a chance to show they’re on the side of the majority of Americans who oppose ObamaCare.

And for the White House, it’s a potential political embarrassment, depending on how many Democrats switch over to the anti-ObamaCare side. The Hill reports:

Only three Democrats voted for repeal after the GOP took control of the House last year, but Republicans are confident they can add to this number on Wednesday in spite of the Supreme Court’s ruling that the law is constitutional.

Already, one politically vulnerable Democrat, Rep. Larry Kissell (N.C.), has said he will vote to repeal the health care law after opposing the same measure a year ago.

The GOP’s hope is that a strong House vote — and fresh Democratic opposition — will thwart the White House’s effort to boost political support for the law in light of the Court ruling, said one House Republican leadership aide. Conservatives complaining about symbolic votes are being unrealistic.

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Some conservatives have complained that the House vote to repeal ObamaCare tomorrow is just for show and has no chance of passing the Senate or — even if it miraculously did — surviving a presidential veto. True, but so what? Many voters are just starting to tune in to the general election, and it’s worth getting the latest positions of House lawmakers on the record. For Democrats running in conservative districts, this could be the last shot to oppose the unpopular health care law before the election. For Republicans, it’s a chance to show they’re on the side of the majority of Americans who oppose ObamaCare.

And for the White House, it’s a potential political embarrassment, depending on how many Democrats switch over to the anti-ObamaCare side. The Hill reports:

Only three Democrats voted for repeal after the GOP took control of the House last year, but Republicans are confident they can add to this number on Wednesday in spite of the Supreme Court’s ruling that the law is constitutional.

Already, one politically vulnerable Democrat, Rep. Larry Kissell (N.C.), has said he will vote to repeal the health care law after opposing the same measure a year ago.

The GOP’s hope is that a strong House vote — and fresh Democratic opposition — will thwart the White House’s effort to boost political support for the law in light of the Court ruling, said one House Republican leadership aide. Conservatives complaining about symbolic votes are being unrealistic.

ObamaCare isn’t going away unless President Obama is voted out of office, which means all the GOP can do at the moment is apply political pressure to Democrats and sympathize with voter anger about the law. Because House Democratic leaders are trying to change the subject away from health care, that means it’s probably working:

Democrats, meanwhile, are seeking to portray the GOP as myopically focused on health care at the expense of the economy and other problems. The office of Minority Leader Nancy Pelosi (D-Calif.) released a video mocking the vote by using the mantra employed by Speaker John Boehner (R-Ohio): “Where are the jobs?”

To refresh Pelosi’s memory, it wasn’t the Republicans who jammed through Obama’s health care law instead of focusing on job creation. Now that ObamaCare’s been spared by the Supreme Court, Democrats would prefer to ignore the unpopular law until after November. House votes like the one tomorrow won’t let them.

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Re: Time to Call Haqqanis Terrorists

Max Boot is correct to call for the designation of the Haqqani Network as a terrorist group, but he does not go far enough in sketching out the implications. The reason why the State Department has not pushed forward with the designation is not only because U.S. diplomats want to maintain the ability to negotiate with the Haqqanis, but because designating the Haqqanis would make it very difficult to avoid listing Pakistan as a state sponsor of terror.

The fact that the Haqqani Network is a terrorist group is irrefutable. The White House may want to drag its feet in pursuit of some diplomatic fiction, but the Congress may not be so tolerant. Already, there is a bill in the House calling for the designation. It may not be such a long shot: Remember, the White House opposed further sanctions on Iran, but the Senate voted 100-0 to impose them anyway. Only after they showed some positive effect did the White House retroactively claim credit.

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Max Boot is correct to call for the designation of the Haqqani Network as a terrorist group, but he does not go far enough in sketching out the implications. The reason why the State Department has not pushed forward with the designation is not only because U.S. diplomats want to maintain the ability to negotiate with the Haqqanis, but because designating the Haqqanis would make it very difficult to avoid listing Pakistan as a state sponsor of terror.

The fact that the Haqqani Network is a terrorist group is irrefutable. The White House may want to drag its feet in pursuit of some diplomatic fiction, but the Congress may not be so tolerant. Already, there is a bill in the House calling for the designation. It may not be such a long shot: Remember, the White House opposed further sanctions on Iran, but the Senate voted 100-0 to impose them anyway. Only after they showed some positive effect did the White House retroactively claim credit.

Negotiating with the Haqqanis—or any terrorist group—is bad policy; it never works. The Haqqanis are not operating to rectify a grievance, but  are conducting terrorism in pursuit of a radical, religious ideology. They do not see compromise as a virtue. Successful diplomacy is not based on fiction, but on reality.

It is for this reason that we need to have a serious discussion about whether or not Pakistan qualifies as a state sponsor of terror. Pakistan not only hosts and supplies the Haqqani Network but, as Osama bin Laden’s presence in Abbottabad shows, its powers that be are also complicit with al-Qaeda. Designation of Pakistan as a state sponsor of terror will certainly have implications on logistical routes into Afghanistan, but as Pakistan’s recent about face on trucking American supplies shows, it recognizes its hand is not as strong as it thought. As my colleague Reza Jan argues, it now has interest bills on loans coming due, and Washington wields more power than Islamabad at the International Monetary Fund and other international financial organs.

If we are ever going to get U.S.-Pakistani relations on the right foot, it is essential we deal with the root problem responsible for all the other ill-symptoms. And if that mandates calling a spade a spade, then so be it.

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Remembering Jason Dunham

Last week, I had the honor to lecture aboard the USS Jason Dunham, our nation’s newest guided missile destroyer, somewhere in the North Atlantic. The ship is named after a young corporal who used his body to shield his comrades from an enemy grenade in Iraq and who subsequently died of his wounds. Dunham seems to have been the real-life inspiration for a similar scene in the recent film “Valor” and posthumously won the Medal of Honor. The crew of the USS Jason Dunham, I am told, has maintained a very close relationship with his family.

Naming a ship for Dunham is the right thing to do, but it should not be the exception to the rule. When President Obama named Ray Mabus the 75th Secretary of the Navy, Mabus distinguished himself by naming or proposing to name ships after political allies such as John Murtha, Gabrielle Giffords, and Cesar Chavez.

I had taken a helicopter to the USS Jason Dunham from the USS Dwight D. Eisenhower, the flagship for Carrier Strike Group 8, on which I was living and teaching for about two weeks. I had always assumed that the Eisenhower was named for Eisenhower as president, but it was not: It was actually named for Eisenhower as general, back at a time when the Navy was honoring famous flag officers rather than politicians. (Its predecessor from which the class of carriers is named was the USS Nimitz, named after World War II-era Admiral Chester W. Nimitz). Prior to World War II, the traditions for naming ships were fairly clear. Aircraft carriers were named after battles (with Enterprise being the exception), battleships for states, cruisers for cities, submarines for marine life and only destroyers being named for individuals.

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Last week, I had the honor to lecture aboard the USS Jason Dunham, our nation’s newest guided missile destroyer, somewhere in the North Atlantic. The ship is named after a young corporal who used his body to shield his comrades from an enemy grenade in Iraq and who subsequently died of his wounds. Dunham seems to have been the real-life inspiration for a similar scene in the recent film “Valor” and posthumously won the Medal of Honor. The crew of the USS Jason Dunham, I am told, has maintained a very close relationship with his family.

Naming a ship for Dunham is the right thing to do, but it should not be the exception to the rule. When President Obama named Ray Mabus the 75th Secretary of the Navy, Mabus distinguished himself by naming or proposing to name ships after political allies such as John Murtha, Gabrielle Giffords, and Cesar Chavez.

I had taken a helicopter to the USS Jason Dunham from the USS Dwight D. Eisenhower, the flagship for Carrier Strike Group 8, on which I was living and teaching for about two weeks. I had always assumed that the Eisenhower was named for Eisenhower as president, but it was not: It was actually named for Eisenhower as general, back at a time when the Navy was honoring famous flag officers rather than politicians. (Its predecessor from which the class of carriers is named was the USS Nimitz, named after World War II-era Admiral Chester W. Nimitz). Prior to World War II, the traditions for naming ships were fairly clear. Aircraft carriers were named after battles (with Enterprise being the exception), battleships for states, cruisers for cities, submarines for marine life and only destroyers being named for individuals.

Alas, in subsequent years, it has become common to name ships after politicians, not only George Washington and Theodore Roosevelt, but also George H.W. Bush, Ronald Reagan, John F. Kennedy, Carl Vinson, and John C. Stennis. Now under construction, and the flagship for a new class of carrier, will be the USS Gerald Ford. Navy officers are quite open about the reason for choosing politicians’ names: the United States needs the ships to protect its national security, and Congress is much more open to approving ships named after politicians than after war heroes. Nothing could be a greater testament to the venality of Congress. Perhaps it’s time to memorialize Medal of Honors winners in the way they deserve, and make the USS Jason Dunham the first of many.

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Obama’s Systematic Assault on the Truth

The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

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The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

As this story put it:

Chief Justice John G. Roberts Jr. said the Court had a duty to uphold an act of Congress if there was a constitutional basis for doing so. And the basis he seized on was the fallback argument [Solicitor General Donald] Verrilli included in the briefs—that the Constitution gives Congress a broad power to impose taxes to “provide for the general welfare.”

The government’s legal brief said the insurance mandate operates in practice as a tax law. No one would be prosecuted or punished for not having insurance. If they had taxable income, however, they would be forced to pay a small tax penalty.

The chief justice agreed with this argument, and so did the four liberal justices. Though Congress may not “order” people to buy insurance, Roberts held in the 5-4 decision, it may impose a small tax on those who refuse.

The Affordable Care Act, then, was upheld as constitutional based on the tax argument put forward by President Obama’s legal team. And yet the Obama administration is now insisting the Affordable Care Act never was a tax, is not now a tax, and shall never be a tax.

This is yet another example of how Barack Obama is a thoroughly post-modern president. Words and facts have no objective standing; they are relative, socially constructed, a way to advance personal reality. If referring to the Affordable Care Act as a tax helps advance the Obama agenda, then it’s a tax. If referring to the ACA as a penalty helps advance the Obama agenda, it becomes a penalty.

You like tomato and I like tomahto.

That philosophy may be fine for liberal arts professors and even tolerable among community organizers. But when the president of the United States systematically assaults truth—if words mean whatever you want them to mean—it becomes rather more problematic. Yet that is precisely where the United States finds itself in the summer of 2012.

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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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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?”

Over at SCOTUSblog, Ilya Shapiro’s perceptive post is entitled, “We won everything but the case.” It is worth reading in its entirety. Scott Rasmussen notes that ObamaCare has already lost in the court of public opinion. The electorate will have the opportunity to use its own constitutional power in 130 days.

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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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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.

The criminal charge isn’t the only avenue the House GOP is pursuing. They may be able to get some results through civil action, CNN reports:

House Republicans are well aware of this recent history, which helps explain the separate measure authorizing a civil action. That resolution, according to a GOP spokesman, would allow the House Committee on Oversight and Government Reform to file a lawsuit asking the courts to examine the Justice Department’s failure to produce certain subpoenaed documents, as well as the validity of the administration’s assertion of executive privilege.

Even then, it will take awhile before Republicans get any documents they may be owed — likely too long to matter in the upcoming election. But that doesn’t mean the White House is off the hook. Politically, this looks terrible. To have an attorney general held in contempt for withholding documents related to the murder of a border patrol officer is bad enough. To have a president who is seen as actively protecting this attorney general is much worse, particularly in an administration that already has a history of eschewing independent investigations.

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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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“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.

As I wrote earlier, Mitt Romney will make the case that he is standing in ObamaCare’s way. But he can also argue that ObamaCare is just one example of myriad ways the Obama administration plans to exercise its expanded scope of power. Just imagine, Romney might say, what a completely unrestrained second term would look like. The “call everything a tax” idea, in the hands of today’s left, is like those invisible electric fences people use for their pets. Fido–that’s you, America–doesn’t see anything, but he gets a healthy shock whenever he tries to roam free. Pretty soon he learns his lesson.

The “intransigent” Republicans in Congress, targeted relentlessly by the media for refusing to be the tax collectors of the welfare state, can use this line of defense as well: The president and the Democratic Party have just taxed the middle-class for existing. How much cooperation on “raising revenue” would you like us to give them?

Most Americans have trouble imagining the extent to which this can be abused, now that there is precedent floating around. John asks what else the Obama administration could tax, and offers a few possibilities. I say: don’t give them any ideas.

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New Holder Emails Raise More Questions

The Associated Press (AP) has reported on three emails from 2011 that Attorney General Eric Holder showed members of Congress at a Tuesday meeting, during his last-ditch effort to avert today’s contempt vote. The emails supposedly show Holder hadn’t known about Operation Fast and Furious until February 2011 and immediately set out to get to the bottom of the issue.

Keep in mind, the AP didn’t see the actual emails — the contents were “described” by people who had seen them — and there are few specific quotes given in the article. If this is supposed to be evidence that Holder was doing the right thing, it seems pretty flimsy:

CBS News ran a story on Feb. 23, 2011. On March 3, CBS followed up, and the non-profit Center for Public Integrity weighed in with its own online account.

On Feb. 23, aides passed along to the attorney general the CBS story alleging gun-walking, and the attorney general shot back, “We need answers on this. Not defensive BS. Real answers.”

Five days later, Holder asked the Justice Department’s inspector general to investigate.

On March 3…the No. 2 official at the Justice Department, emailed his staff: “We obviously need to get to the bottom of this.”

Holder was skeptical of any assurances.

“I hope the AG understands that we did not allow guns to walk,” an official at the ATF’s Washington headquarters said on March 10 in an email that Holder’s aides forwarded to the attorney general.

In a response, Holder wrote, “Do they really, really know” that there was no gun-walking?

A day earlier, at Holder’s instruction, the Justice Department had sent out a directive to the field reinforcing a longtime Justice Department policy against gun-walking. The directive said that agents must not allow guns to cross the border into Mexico.

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The Associated Press (AP) has reported on three emails from 2011 that Attorney General Eric Holder showed members of Congress at a Tuesday meeting, during his last-ditch effort to avert today’s contempt vote. The emails supposedly show Holder hadn’t known about Operation Fast and Furious until February 2011 and immediately set out to get to the bottom of the issue.

Keep in mind, the AP didn’t see the actual emails — the contents were “described” by people who had seen them — and there are few specific quotes given in the article. If this is supposed to be evidence that Holder was doing the right thing, it seems pretty flimsy:

CBS News ran a story on Feb. 23, 2011. On March 3, CBS followed up, and the non-profit Center for Public Integrity weighed in with its own online account.

On Feb. 23, aides passed along to the attorney general the CBS story alleging gun-walking, and the attorney general shot back, “We need answers on this. Not defensive BS. Real answers.”

Five days later, Holder asked the Justice Department’s inspector general to investigate.

On March 3…the No. 2 official at the Justice Department, emailed his staff: “We obviously need to get to the bottom of this.”

Holder was skeptical of any assurances.

“I hope the AG understands that we did not allow guns to walk,” an official at the ATF’s Washington headquarters said on March 10 in an email that Holder’s aides forwarded to the attorney general.

In a response, Holder wrote, “Do they really, really know” that there was no gun-walking?

A day earlier, at Holder’s instruction, the Justice Department had sent out a directive to the field reinforcing a longtime Justice Department policy against gun-walking. The directive said that agents must not allow guns to cross the border into Mexico.

Not to nitpick, but AP writes that “Republicans have promoted the idea” that top DOJ officials knew about the gun-walking. That’s framed rather unfairly — this wasn’t some baseless idea pulled out of thin air by the GOP; emails we’ve already seen showed Holder’s top aides discussing F&F as early as December 2010. Holder himself claimed he’d heard about the gun-running a “few weeks” before his May 2011 hearing with Congress, but was forced to reverse himself later, after it became clear he must have known before that.

The latest letters Holder showed members of Congress seem to show he knew about the operation in February 2011, but where is the evidence that he’d just found about it at that point? Just because he allegedly sent out emails ordering an investigation and questioning others about the gunwalking, that hardly seems like proof he wasn’t aware of this earlier.

Plus — if he was so involved in the issue that he’d sent out field directives and vowed to “get to the bottom” of the case in February, then why was he so fuzzy on the timeline during questioning in May? Clearly, he had to have recalled that he knew about this for longer than “a few weeks.”

As I wrote, we already knew his office was aware of the gun-walking months before these emails were sent. If Holder wasn’t informed properly, then why haven’t heads rolled on this? And if the full electronic mail trail really shows Holder had no idea about F&F, why doesn’t the administration just let investigators take a look? Three vague emails we can’t even see tell us nothing, and they actually only make Holder’s defense seem weaker.

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Lesson of ObamaCare: Get it Passed

That this morning’s ObamaCare decision is disastrous should go without saying. The government’s claim that the mandate is a tax should have been rejected as the Alice in Wonderland reasoning that it is–here’s Obama saying it’s not a tax and here he is saying he’s never raised any taxes–and the law should have been struck down.

Conservatives who are finding solace in potential political implications–that the decision will unite the Tea Party behind Mitt Romney, that Obama will get tagged for increasing taxes, etc.–are setting themselves up for disappointment. As of March, only half of Americans even knew that ObamaCare was still on the books. As of today, they’re going to be bombarded with the message that Obama won, that the Supreme Court  signed on to ObamaCare, and that anyway, the issue is closed and we need to be talking about jobs. It’s not clear that Romney should or will move off his all-economy-all-the-time messaging. This morning, he’s at least partly framing the decision in terms of jobs. With the exception of short-term fundraising, it’s uncertain how today’s decision will ultimately impact the election.

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That this morning’s ObamaCare decision is disastrous should go without saying. The government’s claim that the mandate is a tax should have been rejected as the Alice in Wonderland reasoning that it is–here’s Obama saying it’s not a tax and here he is saying he’s never raised any taxes–and the law should have been struck down.

Conservatives who are finding solace in potential political implications–that the decision will unite the Tea Party behind Mitt Romney, that Obama will get tagged for increasing taxes, etc.–are setting themselves up for disappointment. As of March, only half of Americans even knew that ObamaCare was still on the books. As of today, they’re going to be bombarded with the message that Obama won, that the Supreme Court  signed on to ObamaCare, and that anyway, the issue is closed and we need to be talking about jobs. It’s not clear that Romney should or will move off his all-economy-all-the-time messaging. This morning, he’s at least partly framing the decision in terms of jobs. With the exception of short-term fundraising, it’s uncertain how today’s decision will ultimately impact the election.

Even if Romney did start pointing out that the president flip-flopped on ObamaCare being a tax, and even if that message penetrated the electorate, conservatives would still have traded removing a dagger aimed at the heart of the country’s fundamental notions of citizenship and its financial solvency for the off-chance that “Democrats pulled off a bait-and-switch” will swing five percent of Virginia voters. Not a great deal.

The lesson of ObamaCare remains the same as it’s been since the Democrats used exotic parliamentary maneuvers to pass it: success for a political movement lies in passing what you can, however you can, whenever you can, and on whatever basis is at hand. The presumption granted to facts on the ground–argumentatively and politically–is worth whatever short-term hits parties and movements take to their credibility. Once a law is passed, its proponents get to paint any change as upsetting rather than restoring the status quo. That’s how House Democratic leader Nancy Pelosi could declare that ObamaCare had moved from a privilege to a right, with the New York Times insisting we have to let existing laws work. Meanwhile, liberals gained a strange new respect for judicial modesty, which was to be enforced by intimidation from the president and his water-carriers.

That presumption played out in the Court’s decision which, once you get past the literally surreal declaration that ObamaCare is a tax, isn’t terrible. Congress does have nearly unlimited taxation power, more or less by design. Judicial checks were erected, meanwhile, to limit expansive congressional mischief conducted under the umbrella of its enumerated powers.

Before this morning, that distinction was implicitly recognized, albeit badly mangled, by liberals such as Ezra Klein and Paul Krugman. They simply could not get past the argument that, because Congress can undeniably tax the country into a single-payer system, a less ambitious non-tax intervention should surely pass constitutional muster. That reasoning, which was delivered with typically inexplicable cocooned smugness and happens to be exactly backwards, simply misunderstands the kinds of checks built into the Constitution. The analogy here is to Congress’s power to raise an army. Citizens can be ordered to become soldiers but not ordered to become construction workers, even though building a wall is much less severe than being sent to war. The Framers placed fewer institutional checks on broad enumerated powers such as taxation and conscription because in a democracy over-taxation and needless war-making are electorally toxic. The check on Members of Congress in those contexts is that they’ll get voted out of office. The Framers erected institutional judicial checks on violations of liberty that were less publicly inflammatory, and which therefore required something beyond electoral oversight. Luckily, the Kleins and Krugmans of the world will no longer have to trouble themselves with those distinctions, now that they’ve been told ObamaCare is indeed a tax and not something structurally less than a tax.

Voters were supposed to prevent Congress from taxing them into a health care mandate. The Court was supposed to check Congress from abusing its Commerce Clause authority to create a health care mandate. Democrats dodged voter oversight on taxation in 2010 by insisting ObamaCare wasn’t a tax, and then they survived judicial rejection of their Commerce Clause reasoning in 2012 by insisting it is a tax. It’s a neat trick, and one they shouldn’t have been allowed to get away with. But again, presumption is powerful, and it lets you throw everything against the wall to see what sticks. Conservatives would do well to heed that lesson.

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GOP Shouldn’t Rush to Replace ObamaCare

With it a near certainty that sometime Thursday morning we will finally know whether the Supreme Court will strike down the Affordable Care Act, the political parties have spent much of this week pondering what they will do in the event the president’s signature legislation is ruled unconstitutional. The Democrats are fairly certain of their course of action if their side loses tomorrow. They will attack the Court and the GOP while attempting to change the narrative of the issue from one about a government power grab to the plight of the uninsured. Republicans are less certain; as the putative victors in the controversy, their inclination may be to sit back and gloat.

As Politico reports today, congressional Republicans have no plans to respond to the downfall of ObamaCare with legislation aimed at filling in the gap if the president’s plan goes down, even if it means allowing some of the more popular provisions in a profoundly unpopular bill are lost with the rest of the plan. While doing nothing may be dangerous as it risks losing the initiative to the left, the thinking here is they are right to pass on getting bogged down this year on an alternative. But a refusal to try to push through a new bill shouldn’t be confused with passivity. Conservatives must be ready to start pushing back against the left’s attempt to demonize the Court or allow them to make the public forget the issue here isn’t sympathy for the poor but the defense of liberty.

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With it a near certainty that sometime Thursday morning we will finally know whether the Supreme Court will strike down the Affordable Care Act, the political parties have spent much of this week pondering what they will do in the event the president’s signature legislation is ruled unconstitutional. The Democrats are fairly certain of their course of action if their side loses tomorrow. They will attack the Court and the GOP while attempting to change the narrative of the issue from one about a government power grab to the plight of the uninsured. Republicans are less certain; as the putative victors in the controversy, their inclination may be to sit back and gloat.

As Politico reports today, congressional Republicans have no plans to respond to the downfall of ObamaCare with legislation aimed at filling in the gap if the president’s plan goes down, even if it means allowing some of the more popular provisions in a profoundly unpopular bill are lost with the rest of the plan. While doing nothing may be dangerous as it risks losing the initiative to the left, the thinking here is they are right to pass on getting bogged down this year on an alternative. But a refusal to try to push through a new bill shouldn’t be confused with passivity. Conservatives must be ready to start pushing back against the left’s attempt to demonize the Court or allow them to make the public forget the issue here isn’t sympathy for the poor but the defense of liberty.

The temptation to come up with a comprehensive alternative to ObamaCare if it is struck down will be great. The Democrats will inevitably demand the GOP step into the vacuum left by the bill’s destruction, and there are some Republicans who have ready-made plans they’ll wish to put forward. But in doing so, they will just be providing the left with easy targets for criticism and perhaps render themselves vulnerable to the same problems that afflicted the Democrats’ rush to ram ObamaCare through Congress two years ago. The last thing Republicans need is to propose another bill that no one will have read or understood when it comes up for a vote.

However, Republicans do need to avoid sitting back and letting liberals get the better of them. So long as ObamaCare was on the books, conservatives could just fire away at its shortcomings and make the case that it was an unconscionable power grab by the federal government. Rather than just taking bows if the Court rules their way, they need to keep hammering away on this.

More to the point, they need to have the courage of their convictions and not fear the Democrats will have the better of the argument in the coming months. Though the left is acting as if a ruling that ObamaCare is unconstitutional will be a blow to Mitt Romney’s chances of defeating the president, that isn’t true. As liberal blogger/analyst Nate Silver points out in the New York Times, though Congress and the Supreme Court are widely disliked, ObamaCare is even more unpopular.

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NRA to Score Holder Contempt Vote

The National Rifle Association (NRA) has leverage with House Democrats running for reelection in conservative districts, and its decision to score the Eric Holder contempt vote (in favor of it) will complicate Minority Whip Steny Hoyer’s attempts to keep Democrats united in opposition (h/t HotAir):

“I think there are some members that will consider the recommendations of the NRA,” Hoyer said to reporters today. “Whether they think those recommendations are founded or not, I don’t know at this point.”

The number of Democratic defections could reach 31, according to House Oversight Committee Chairman Darrell Issa (R-CA), whose committee voted last Wednesday to move the contempt citation to a full House vote.

Issa cites a letter sent from 31 Democrats to the Obama administration last year asking for them to be forthcoming with details of the Fast and Furious gun-walking operation as a template for possible Democratic “yes” votes.

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The National Rifle Association (NRA) has leverage with House Democrats running for reelection in conservative districts, and its decision to score the Eric Holder contempt vote (in favor of it) will complicate Minority Whip Steny Hoyer’s attempts to keep Democrats united in opposition (h/t HotAir):

“I think there are some members that will consider the recommendations of the NRA,” Hoyer said to reporters today. “Whether they think those recommendations are founded or not, I don’t know at this point.”

The number of Democratic defections could reach 31, according to House Oversight Committee Chairman Darrell Issa (R-CA), whose committee voted last Wednesday to move the contempt citation to a full House vote.

Issa cites a letter sent from 31 Democrats to the Obama administration last year asking for them to be forthcoming with details of the Fast and Furious gun-walking operation as a template for possible Democratic “yes” votes.

So far, Rep. Matheson is the first Democratic defector. Getting 31 Democrats to cross the aisle still seems like a long-shot for Issa, but the NRA scoring will certainly help. The lobbying group does appear to have had some interest or involvement in the Fast and Furious letter Issa mentions that had 31 Democratic signatories last year, since it was posted on the NRA website under “media.” If the Democrats lose 31 members on this vote, their argument that the GOP is using it as a ploy to tie Holder’s hands on voting rights becomes even more absurd.

The NRA, meanwhile, outlined its justification for scoring the vote in a recent letter to House GOP leadership, making the case that this is about gun rights, not partisanship (h/t Moe Lane):

It is no secret that the NRA does not admire Attorney General Holder. For years, we have pointed out his history of anti-Second Amendment advocacy and enforcement actions. Since taking office, Attorney General Holder has seized on the violence in Mexico to promote the lie that “90 percent” of firearms used in Mexican crime come from the U.S.; to call for bringing back the 1994 Clinton gun ban; and to justify the illegal multiple sales reporting scheme, which amounts to gun registration for honest Americans who buy long guns in southwest border states.

But our support of this contempt resolution is not about those issues — nor is it a partisan decision, for we have also expressed our strong policy disagreements with Attorney General Holder’s predecessors of both parties. The reason we support the contempt resolution is the same reason we first called for Attorney General Holder’s resignation more than a year ago: the Department’s obstruction of congressional oversight of a program that cost lives in support of an anti-gun agenda.

Hoyer will try his best to keep his party in line, but the election is a little more than four months away, and some Democrats won’t be able to afford being on the wrong side of the NRA.

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Will Former Black Panther Win in NY?

At Tablet, Zack Beauchamp wonders whether Democrats are overreacting about former Black Panther Charles Barron’s chance of winning the Brooklyn primary race against the more moderate Hakeem Jeffries:

There is real panic among Democratic leaders that Barron might win. As far as I can tell, the fear stems from an endorsement from the seat’s former holder Ed Towns, one New York Times article touting a “Barron surge,” and the simple fear created by the anticipation of a very bad outcome. It’s not clear how much the endorsement matters and the Times article is a bit short on evidence. That’s not me saying that – the Times’ own local blog is a bit perplexed[.]

And as far as endorsements go, Jeffries has Governor Andrew Cuomo, the most high profile local papers, several important unions, a raft of significant Democrats and democratic institutions, and a wink-wink-nudge-nudge photo-op with the President. Also, Jewish voters could be critical given the district’s demographics. Since there’s been virtually no polling done on the race, I think the evidence we have to go on suggests it’s Jeffries’ race to lose.

Beauchamp’s right that by all normal measures, it probably should be Jeffries race to win. But I’m not so sure.

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At Tablet, Zack Beauchamp wonders whether Democrats are overreacting about former Black Panther Charles Barron’s chance of winning the Brooklyn primary race against the more moderate Hakeem Jeffries:

There is real panic among Democratic leaders that Barron might win. As far as I can tell, the fear stems from an endorsement from the seat’s former holder Ed Towns, one New York Times article touting a “Barron surge,” and the simple fear created by the anticipation of a very bad outcome. It’s not clear how much the endorsement matters and the Times article is a bit short on evidence. That’s not me saying that – the Times’ own local blog is a bit perplexed[.]

And as far as endorsements go, Jeffries has Governor Andrew Cuomo, the most high profile local papers, several important unions, a raft of significant Democrats and democratic institutions, and a wink-wink-nudge-nudge photo-op with the President. Also, Jewish voters could be critical given the district’s demographics. Since there’s been virtually no polling done on the race, I think the evidence we have to go on suggests it’s Jeffries’ race to lose.

Beauchamp’s right that by all normal measures, it probably should be Jeffries race to win. But I’m not so sure.

The New York Democratic establishment clearly seems worried about something. Barron and Jeffries have been vying seriously for the seat since Ed Towns announced his retirement in mid-April, but the race received little attention until recently. What prompted the sudden surge of anxiety and last-minute Jeffries endorsements from establishment Democrats? We don’t know the extent of the independent polling that’s been done, or the trends the Jeffries’ campaign was picking up on the ground.

That’s not to say the fear will turn out to be justified. The district is notorious for its low voter turnout, which probably makes difficult to predict voting outcomes. But the New York Times reports signs that turnout was higher than average today in part of the district:

But at Brooklyn Technical High School in Fort Greene, in a district where Assemblyman Hakeem S. Jeffries and City Councilman Charles Barron are vying to replace Edolphus Towns, who is retiring, the polling coordinator, Selma Jackson, said turnout seemed relatively high.

“We don’t usually have this kind of flow in the morning,” Ms. Jackson said shortly after 9 a.m., three hours after the polls opened. “Normally in this time of morning, if I’ve seen 10, 12 people for a primary, that’s good. We’re way past that.”

That could be good for bad news Jeffries — organization is key, and Barron has a loyal base. We can assume Democrats are helping Jeffries bolster his get out the vote efforts, but was it too little too late?

One last question: If Charles Barron does win, how much will it actually matter? It seems like the Democratic Party and New Yorkers would be the hardest hit, since they’d be associated with his embarrassing antics on a national stage (unless a Republican somehow ends up beating him in the general election). To most people, Barron would probably be another running joke like Cynthia McKinney. That is to say he would be considered reprehensible and deranged but too toxic to be taken seriously.

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