The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.”
Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.
Now, it may be objected that Roberts is entirely correct. This is nothing new. The government has been taxing inactivity and omissions for a long time. On some such understanding, income-tax deductions for you are taxes on me. I rent my house; you own yours. You get the mortgage deduction; I pay a higher tax than you — a renter’s tax, you see, a tax on not owning a home.
But this objection is broken-backed. Here’s why. If you were to start over, designing a tax code from scratch, and if you wanted to begin by imposing a tax on renters, how would you do so? By taxing renters. For the affirmative act of renting a place to live. In the absence of a tax on homeowners, however, this newfangled renter’s tax could hardly be described as a tax on the omission of not owning a home. Next you might impose a tax on cigarettes. But would you call this a tax on not not smoking? Ockham’s razor would slice away the double negative: it’s simply a tax on smoking.
Under the current system, moreover, you can forego the mortgage deduction, placing yourself on the same tax level as us renters. Granted, it’s unlikely that you will ever do so — but (in language that Justice Roberts uses elsewhere in his opinion) it’s “fairly possible.” The mortgage deduction is optional. Not the ObamaCare tax, though. If I don’t pay it (and don’t pay for health insurance either), the IRS can withhold my tax refund. The ObamaCare tax is mandatory. For the first time in U.S. history, the federal government is empowered to impose a mandatory tax on the failure or refusal to act.
Justice Roberts anticipated these criticisms. “Even if only a tax,” he said, the payment due for not buying health insurance “remains a burden that the federal government imposes for an omission, not an act.” He tried to “allay” this “concern” by observing that the ObamaCare tax “nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”
But this “choice” is an illusion of choice. When it comes to cigarette taxes or gasoline taxes, I have a real choice — I can choose not to smoke, not to drive. My choice is between activity and inactivity. Omission waives the tax. When it comes to the ObamaCare tax, however, my choice is to pay or pay. Either I pay for health insurance or I pay the tax. My choice is between two variations of the same activity. The government is compelling me to action I might otherwise not have taken.
The familiar example of something the government might compel U.S. taxpayers to purchase is broccoli. Justice Ruth Bader Ginsburg dismisses this example as “the broccoli horrible.” But in his dissent, Justice Anthony Kennedy takes it seriously. What if broccoli were found to contain unique cancer-fighting properties? Your refusal to consume it would then produce “health-care costs that are a burden on the rest of us,” Kennedy said, in which case — on the logic of the ObamaCare tax — “moving against those inactivities will also come within the federal government’s unenumerated problem-solving powers.”
Anyone who believes this is an abstract phobia has not been paying attention to the culture during the past two decades. All sorts of omissions have come under attack in recent years — pharmacists who refuse to dispense abortifacients, churches and yeshivot that refuse to ordain women, institutions and jurisdictions that refuse to recognize same-sex marriages, golf clubs that refuse to admit women. Statistical disparities are advanced as prima facie evidence of omission — higher average salaries for men than women (or higher average salaries for whites than blacks), magazines that publish fewer women than men (or fewer blacks than whites), schools with lower admission rates for blacks than whites (they rarely have too few women). The new taxing authority created out of whole cloth by Justice Roberts is a powerful tool for compelling compliance with the cultural fashion of the moment. Augusta National can now be taxed for refusing to admit women, and wedding photographers can now be taxed for refusing to snap pictures at same-sex nuptials.
By creating the ObamaCare tax, the Supreme Court of the United States has created a means for the federal government to slap a price on non-conformity.
An Enormous Expansion of Federal Powers
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Competition is a scary thing.
Soon after last summer’s U.K. vote to leave the European Union, London Mayor Sadiq Khan launched a publicity campaign to reassure investors that his city would remain a dynamic, global hub after Brexit. “London Is Open” was the slogan, and it was supposed to “show the world that London remains entrepreneurial, international and full of creativity and possibility.”
So much for that. Friday’s decision by the city’s transport regulator not to renew Uber’s license suggests that Khan’s London is closed to competition and in thrall to local special interests.
The regulator, Transport for London, said the decision was based on Uber’s alleged lack of corporate responsibility in a variety of areas, particularly public safety. Yet there is no Uber-driven safety crisis in London. If Uber has made missteps, as any company might, putting 40,000 drivers out of work and inconveniencing 3.5 million London riders is a terrible way to respond.
Public safety is a pretext. The Uber ban comes after years of lobbying–and strikes and bullying–by the city’s black-taxi cartel. Before Uber came along, the industry’s high barriers to entry shielded black taxis from competition. It takes tens of thousands of pounds to buy a black cab and years to acquire “the knowledge”–drivers’ vaunted ability to memorize and instantly recall the best way to any destination.
The advent of GPS and ride-sharing meant that having the knowledge wasn’t all that special. Rather than try to outcompete Uber by offering better prices and service, the black taxis continued to charge outrageously overpriced fares. And they sought to defeat ride-sharing politically. Now they have succeeded. The losers are riders who used ride-sharing for fast, reliable, and accountable service.
The first black taxi I ever took, in 2014, took me from Heathrow Airport to Euston, in central London. It cost nearly £100 (or $170 at the time). That taught me early on to rely on my Uber app, and since then I have taken hundreds of rides. Defenders of the ban point to pre-booked minicab services and the like that often cost less or about the same as Uber. Yet none of those services offer the speed, ease, and pickup accuracy that Uber does. Black taxis don’t routinely serve many low-income neighborhoods, moreover, whereas Uber works wherever people have smartphones.
If you leave a personal item in a black cab and pay cash, there is no way to recover it. With Uber and similar apps, you can immediately track down your driver, and he will usually return the item to you within hours. As for safety and sexual assault: Rachel Cunliffe pointed out in the Spectator that Uber is the far safer option for female riders, who don’t have to trawl the streets looking for taxis. Every ride and every driver is tracked.
The Uber ban is the triumph of protectionism over innovation and clientelism over consumer choice. London is not open.
A boon to America, the region, and the world.
The Kurds have been a people without a state for centuries. Monday’s independence referendum in northern Iraq’s Kurdish zone is an important step toward rectifying this historic injustice, and I believe the U.S. is making a grave mistake by opposing the vote.
The Trump administration announced its displeasure in a September 15 statement, noting that the referendum “is distracting from the effort to defeat ISIS and stabilize the liberated areas.” It added: “Holding the referendum in disputed areas is particularly provocative and destabilizing.” The Kurdistan Regional Government (KRG), the White House said, should work out its differences with Baghdad through dialogue.
Not now, go away, in other words. The statement reflected the sort of rigid adherence to Washington dogma that too often prevents America from seizing the opportunities presented by the tectonic shifts in the Middle East. The Trump administration failed even to nod at Kurdish aspirations, or offer an alternative timeline if the current moment is too inconvenient. This was unnecessary slap when there are compelling moral and strategic reasons for creating a Kurdish state in northern Iraq sooner than later.
The Kurds got by far the worst treatment during the decades of Baathist rule in Iraq. Saddam Hussein ethnically cleansed tens of thousands of them in the 1970s. Then, in the closing days of the Iran-Iraq War, he set out to destroy the Kurdish community. The regime fired chemical weapons at Kurdish civilians, summarily executed men and boys, and sent entire villages to concentration camps.
President George H.W. Bush’s decision to impose a no-fly zone in 1991 granted Iraqi Kurds protection against Saddam’s depredations and a measure of autonomy. The Kurds used the opening, and the one provided by the 2003 invasion, to develop institutions of self-government. Iraqi Kurds constitute a coherent nation. They stand out in a region full of non-nation-states in various stages of disintegration. Kurds speak a common language, albeit with regional variations. Most are Sunni Muslims, though there are Christians and even a very few Jews among them, as well. They have deep historical ties to their territory. Their culture sets them apart, visibly, from their neighbors. They have distinct national institutions. And they already enjoy quasi-state recognition in the corridors of power in Europe, the Middle East, and beyond.
Iraqi Kurds, moreover, share what Douglas Feith has described as the key subjective factor in nationhood: a “type of fellow feeling” that is “an extension of the affection people tend to have for their family members.” Whatever their tribal differences—and these are real—Kurds living in Erbil or Dohuk today look upon other Kurds, not Iraqis, as their true compatriots. The bonds of Kurdish sympathy are much stronger and more enduring than those of Iraqi nationalism, if the latter means much at all.
Taken together, these factors mean that Iraqi Kurds are ripe for statehood. The Arabs have 22 states, and the Turks, Iranians, and Jews each have one—so why shouldn’t the Kurds enjoy statehood? There is no good answer to this question.
Then, too, Iraqi Kurdistan is vibrant and free. In Erbil today, within an hour’s drive from what used to be the second capital of the ISIS “caliphate,” you can enjoy a beer, surf a largely unrestricted Internet, and criticize the government without having to fear death squads. You won’t hear chants of “Death to America” or “Death to Israel” on the streets. There is corruption in the Kurdistan Regional Government, to be sure, and a degree of political nepotism that would make Jared Kushner and Ivanka Trump blush. But by regional standards, KRG governance is more than acceptable.
An independent Kurdistan, moreover, will bear strategic fruit for the U.S. It could serve as a counterweight, however small, to Iranian hegemony. KRG leaders have taken a moderate, pragmatic line with all of their neighbors. That is wise policy, given the region’s size and strength relative to the likes of Iran and Turkey. Even so, the introduction of a new, fully sovereign Kurdish actor would interrupt Tehran’s so-called Shiite crescent stretching from Sanaa to Beirut. Today Iraq is trapped in the crescent. An independent Kurdistan wouldn’t be. It would irk the mullahs still more if this new state turned out to be a democratic success story. Conversely, by blocking Kurdish aspirations, the U.S. is putting itself in the same camp as Iran.
Most important, friendship should mean something. Iraqi Kurdish forces fought valiantly alongside the U.S.-led anti-ISIS coalition. When the jihadist army seemed invincible, it was Kurdish fighters who stopped its march across Iraq (and Syria). As Kurdish intelligence chief Masrour Barzani told me in 2015, “In this entire area the Kurds are probably the most pro-American people that you can find. Forever we will be thankful for the U.S. support since the day of toppling Saddam’s regime.”
If Washington keeps neglecting and mistreating friends, America’s credit rating in the region will suffer irreparable harm. Responsible, pro-American populations, like the Iraqi Kurds, deserve American support.
The liberals strike back.
Given his reputation for favoring even wildly impractical progressive policy objectives, few might have guessed that the first prominent liberal to stand athwart the Democratic Party’s reckless lurch to the left would be Joe Biden. With liberals fawning over progressive firebrands and amid the growing unanimity around the notion that there is no social and economic challenge that cannot be solved by throwing money at it, the former vice president has emerged as a vocal opponent of at least one idea popular among liberal reformers and libertarian technocrats alike: a universal basic income.
“The theory is that automation will result in so many lost jobs that the only plausible answer is some type of guaranteed government check with no strings attached,” Biden wrote in a post for the University of Delaware’s Biden Institute.
“While I appreciate concerns from Silicon Valley executives about what their innovations may do to American incomes, I believe they’re selling American workers short,” he continued. “Our children and grandchildren deserve the promise we’ve had: the skills to get ahead, the chance to earn a paycheck, and a steady job that rewards hard work.”
Now, before we go congratulating Biden’s attack on indolence and his tacit acknowledgment that material incentives to be productive have a better record than their alternatives, it’s important to acknowledge that Biden may, in fact, be endorsing the traditional liberal position.
As far back as 2013, progressive activist and former MSNBC host Krystal Ball advocated the adoption of a “mincome” as a means of eliminating poverty. “The basic concept is simple,” she continued. “Every non-incarcerated adult citizen gets a monthly check from the government,” she said. But there’s a catch: “Other safety net programs are jettisoned to pay, and poverty is eliminated.” Just like that!
The problem with this proposition is the notion that progressive policy advocates would ever consent to the elimination of any anti-poverty program for any reason, particularly in order to pave the way for one that is “universal” (e.g., not directed toward uniquely threatened or preferred constituents).
“I’m not against a guaranteed income because I think that it would make the government too big,” American University professor emerita and liberal economist Barbara Bergmann told PBS. “I think government ought to be much bigger.” She noted, accurately, that the idea government could eliminate poverty and hardship by disbursing, say, $11,000 annually to every citizen is nonsense and doesn’t take into account disparate needs. Given the political inclinations of the present Democratic Party, the notion that any candidate could successfully run on a platform that consists of paring back bloated entitlement programs is delusional.
As Oren Cass wrote for National Review, a “mincome” would soon take its rightful place in the pantheon of sprawling American welfare-state programs alongside Social Security, Medicare, Medicaid, and the Affordable Care Act’s provisions for individuals and corporations. Further, such a program would alter Americans’ perceptions of their relationship to the state; for the first time in American history, the government would be transformed into every American’s first and most essential source of well-being. And contrary to the protestations of UBI proponents, it would by necessity undermine the value of work and productivity. “Stripped of its essential role as the way to earn a living, work would instead be an activity one engaged in by choice, for enjoyment, or to afford nicer things,” Cass noted.
For the social-justice left, there is one other attractive element to the UBI—one so subversive it is barely spoken above a whisper outside venues that care little for how they are perceived by the respectable sort. “In recent years, a UBI has been embraced in particular by the post-productivist left, which carries a strong feminist and ecological bent and rejects the traditional left’s valorization of labor and the working class,” wrote Jacobin Magazine’s Shannon Ikebe.
She said there were actually two kinds of a UBI—the kind on which you can live comfortably and the kind on which you can’t. She obviously prefers the latter. Her argument soon devolves into neo-Marxist prattle, blathering on about how an empowered working class free from the need to produce would create capital flight and divestment, increasing class divisions and, eventually, compelling us to reengage with “the age-old question of the ownership of the means of production.” That’s only relevant insofar as it provides a window into the thinking of the kind of politics that finds the UBI an attractive proposition.
It’s a funny kind of Marxism that looks down its nose at labor and those who perform it. You can, however, see how that would appeal to Democrats who resent having to appeal to those backwater blue-collar voters who lost faith in the Democratic Party under Barack Obama or—to their eternal disgrace—voted for Trump. That’s precisely the kind of mentality that Joe Biden (who is originally from Scranton, Pennsylvania, if you needed reminding) would dedicate himself to combatting.
The fight over a UBI is a fascinating glimpse at the sub rosa ideological battles being waged within the Democratic coalition. Biden’s jab at the concept is, no doubt, self-interested, but it comes from a place of pride in the traditional American ethos of personal responsibility and industriousness. Unfortunately for him and those who would join him in this internecine fight, they are vastly outmanned.
With Noah Rothman sadly out of commission for the day, Abe Greenwald and I discuss the president’s speech at the UN (good!), the attacks on it (mostly bad!), why his polls have seen an uptick (less Trump!), who’s crazier about health care (liberals!) and the evils of honey (yes, honey). Give a listen.
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Was it all an act?
When Myanmar’s de facto leader, Aung San Suu Kyi, took to the lectern on Tuesday, she was speaking to us. Suu Kyi’s silence as hundreds of thousands of Rohingya Muslims are driven from their homes amid a campaign of state-sponsored pogroms had been deafening. When Suu Kyi finally addressed the issue, she spoke in perfect English to the international community, but she was not being entirely honest.
Over the space of just weeks, at least 420,000 Rohingya civilians have fled their Rakhine State villages amid cycles of violence and counter-violence. Thousands more are trapped, besieged and surrounded by hostile Rakhine Buddhists and the government has denied their petitions for safe passage out of the area despite claims that supplies of food have dwindled to starvation levels. Hundreds have died either in transit or conflict, and the humanitarian conditions threaten to deteriorate further.
Suu Kyi insisted that it was not the intention of her government “to apportion blame or to abnegate responsibility.” She observed that her regime has not yet been in power for a full 18 months and still has limited control over junta-led ministries like defense and border affairs. “After several months of seemingly quiet and peace, on 25 August, 30 police outposts . . . were attacked by armed groups,” Suu Kyi added, apportioning blame. She bristled with indignation at international monitoring bodies that have focused only on the plight of local Muslims and not smaller minority groups that have also been made refugees and “of whose presence most of the world is totally unaware.”
“Since 5 September, there have been no armed clashes, and there have been no clearance operations,” she insisted, which is an outright lie, according to Suu Kyi’s own information committee. She claimed the Rakhine Muslims have access to all essential and non-essential state services, but they do not. The Rohingya are denied citizenship and are clustered in camps when they are not fleeing to Bangladesh for their lives. “Myanmar does not fear international scrutiny,” Suu Kyi insisted. While a handful of journalists have been allowed access, organizations like Doctors Without Borders say they have not had access to Rakhine State since August. Indeed, NGO staffers are afraid to travel to the region because Myanmar officials have accused humanitarian organizations of colluding with local militant groups.
Suu Kyi’s prickliness amid allegations of brutality, prejudice, and ethnic cleansing is a bitter pill to swallow. Burma’s democratization, culminating in Suu Kyi’s release from house arrest and, eventually, her free election to serve as the head of a quasi-civilian government seemed like a genuine move toward liberalism.
That country’s thaw appeared such a bright spot that Hillary Clinton cited her successful efforts to open Naypyidaw frequently in her quest for the Democratic nomination. “While the Arab Spring was losing its luster in the Middle East, Burma was giving the world new hope that it is indeed possible to transition peacefully from dictatorship to democracy,” Clinton wrote in the chapter she dedicated to Myanmar’s transition in her 2014 book, Hard Choices.
In 2011, Clinton traveled to Burma where she appeared beside Suu Kyi. “It was incredibly emotional and gratifying to see her free from the many years of house arrest,” she said. For her part, Suu Kyi played the part of non-violent democratic resistance figure and pledged that “there will be no turning back from the road to democracy.” Following a landslide victory for Suu Kyi and her democratic opposition in 2015, Clinton took her share of credit. “It was also an affirmation of the indispensable role the United States can and should play in the world as a champion of peace and progress,” she said in a statement.
Clinton was in very good company in praising Suu Kyi as a leading light for the cause of freedom. “This is a fitting tribute to a courageous woman who speaks for freedom for all the people of Burma, and who speaks in such a way that she’s a powerful voice in contrast to the junta that currently rules the country,” President George W. Bush said signing a bipartisan bill awarding Suu Kyi the Congressional Gold Medal in 2008.
In 1991, she won the Nobel Peace Prize “for her non-violent struggle for democracy and human rights.” Following her release from house arrest, she traveled the world lecturing as a Nobel laureate on the primacy of the rule of law and the necessity of democracy “for the guarantee of human rights.” Today, she presides over what a Yale University Law School study claims amounts to genocide.
Maybe the pressures and political realities of running a democratizing state alongside a tenacious junta have been underappreciated, both by Suu Kyi and her detractors. Perhaps the facts on the ground tie her hands, and she must meekly defend the actions of her military as it commits atrocities against oppressed minorities. Either way, Aung San Suu Kyi is a crushing disappointment.