Author Archive
ObamaCare’s Coercive Essence
Today POLITICO Arena asks:
Will the GOP win the birth-control fight?
My response:
The GOP will win the current contraceptive-abortifacient battle going away, because the average American understands the essence of religious freedom: government cannot force people to do things that violate their religious beliefs. The administration may try to frame this as a defense of women’s rights, but that’s pure sophistry. As I wrote yesterday, if the administration’s decision is reversed, women will still be perfectly free to use contraceptives, to seek abortions, and to do whatever else their beliefs permit. They just won’t be able to force others who object to such practices to pay for them.
There’s a bigger issue here, however. This is just the latest example of the perils of ObamaCare. When health care is thus “collectivized,” when we’re “all in this together,” we’re forced to fight for every “carve-out” of liberty. Those progressive Catholics who supported ObamaCare, who are now appalled by this move, should have thought of that before they worked to throw us all in the common pot. This incident is simply an early example of the many battles to come if ObamaCare survives the litigation and the elections ahead.
Three Blind Senators Defend ObamaCare
The Wall Street Journal often publishes op-eds from “the other side,” perhaps out of a sense of fairness, perhaps to show how bad the other side’s reasoning sometimes is – “Don’t take our word for it; see for yourself.” That rationale must have been at play in the decision to publish in this morning’s edition a truly remarkable piece from the pens of three Senate women, Jeanne Shaheen of New Hampshire, Barbara Boxer of California, and Patty Murray of Washington.
In “Why the Birth-Control Mandate Makes Sense,” such sense as emerges from the senators’ effort to defend the Obama administration’s decision to force religious institutions to pay for health insurance that covers sterilization, contraceptives, and abortifacients comes from a simple claim, repeated in several variations: doing so would be good – for women, for children, for families, for businesses and consumers. Indeed, “our nation will be better for it.”
Say no more! Who could be against it? We don’t have to look far for the answer:
Sadly, there is an aggressive and misleading campaign to deny this benefit to women. It is being waged in the name of religious liberty. But the real forces behind it are the same ones that sought to shut down the federal government last year over funding for women’s health care. They are the same forces that just tried to pressure the Susan G. Komen Foundation into cutting off funding to Planned Parenthood for breast-cancer screenings. Once again, they are trying to force their politics on women’s personal health-care decisions.
There we have it: it’s women and the rest of us, up against these sinister “real forces,” hiding behind religious liberty. In sketching this little morality play, it seems not to have occurred to the good senators that there might be people of good will on the other side. That blind spot emerges nicely in a single paragraph:
Those now attacking the new health-coverage requirement claim it is an assault on religious liberty, but the opposite is true. Religious freedom means that Catholic women who want to follow their church’s doctrine can do so, avoiding the use of contraception in any form.
At this point in the argument, if the policy is not an assault on religious liberty, one would expect the senators to show how it protects the religious rights of those Catholic (and other) institutional administrators who are forced to take actions their religious doctrines prohibit. But the rights of those people don’t even arise in the senators’ argument – as if they didn’t even exist. Instead, the focus continues to be exclusively on women, for in the very next sentence they say: “But the millions of American women who choose to use contraception should not be forced to follow religious doctrine, whether Catholic or non-Catholic.”
Who is “forcing” such women “to follow religious doctrine”? They’re perfectly free to use contraceptives, to seek abortions, and to do whatever else their beliefs permit. They just can’t expect others who object to such practices to pay for them. Nor do religious charitable organizations that receive public funds lose their rights either, not if the doctrine of unconstitutional conditions still has weight.
And so we come to the heart of the matter. ObamaCare is just the latest example of the perils of collectivization. When we’re forced to be “all in this together,” we’re forced to fight for every “carve-out” of liberty. Those progressive Catholics who supported ObamaCare should have thought of that before they worked to throw us all in the common pot. This incident is simply an early example of the many battles to come if ObamaCare survives the litigation and the elections ahead.
Our Constitution Is Out of Step with the Rest of the World
Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?
Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:
“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”
To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.
It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.
E.J. Dionne on Campaign Finance as Class Warfare
E.J. Dionne was in high dudgeon at the Washington Post this morning over Citizens United, the Supreme Court’s January 2010 campaign finance decision that ever since has driven the Left into fits of apoplexy. Taking his cue from Obama’s infamous State-of-the-Union condemnation of the Court shortly after the decision came down, plus the class warfare meme at the core of Obama’s reelection campaign, Dionne attacks not only the Court’s wisdom but its motives:
A more troubling interpretation [than “naiveté”] is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.
Indeed, the Court’s decision “should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents,” Dionne continues. Pointing to recent state legislation aimed at ensuring electoral integrity, such as voter ID laws, he charges that “conservatives are strengthening the hand of the rich at one end of the system and weakening the voting power of the poor at the other.”
Reading this screed you’d think that the moneyed classes, including corporations, were all on the Right. Yet as the Post itself reported last fall, “despite frosty relations with the titans of Wall Street, President Obama has still managed to raise far more money this year from the financial and banking sector than Mitt Romney or any other Republican presidential candidate.” Indeed, “Obama has outdone Romney on his own turf, collecting $76,600 from Bain Capital employees through September – and he needed only three donors to do it.”
So let’s get that white-hat/black-hat silliness out of the way and turn to the charge that the Court “set out to remake our political system by fiat.” The charge, if you read the majority’s opinion, is preposterous on its face. Only Justice Stevens has clung to the idea that money is not speech. (Want proof that it is? How much speech have you heard from the presidential campaign of former Louisiana Governor Buddy Roemer, who accepts no contributions over $100?) Well if money is speech, then the First Amendment tells us, straightforwardly, that “Congress shall make no law abridging the freedom of speech.”
Regrettably, despite that simple imperative, the Court has allowed numerous restrictions on the contributions side of the campaign finance ledger. But in Citizens United it opened the door to those who speak through their corporations or unions (the Left’s outrage is directed only to the corporations side of the decision, of course), provided the spending is not coordinated with the candidate. Thus, far from having torn down “a century’s worth of law” – Dionne alludes to the 1907 Tillman Act, which banned corporations from giving directly to candidates – Citizens United simply repealed a provision of the 1947 Taft-Hartley Act that prohibited corporate and union expenditures on independent, non-candidate coordinated campaigns.
But Dionne’s confusion doesn’t end there. Like almost every other Leftist, he attributes the rise of super PACs, his main target, to the decision in Citizens United. But it was the March 2010 DC Circuit’s decision in Speech Now v. FEC that brought about those entities. And almost all super PACs are funded by individuals, not corporations or unions. What Speech Now did was lift the ban on individual contributions of more than $5,000 when individuals get together to speak through Political Action Committees that are independent of candidates.
Dionne abhors those PACs, of course. So do the candidates, because they have no control over what “their” PACs say. (“Save me from my friends!”) Far better it would be if contributors were able to give directly to a candidate’s campaign. This is a big country, with over 300 million people and millions of corporations and unions. Are we really to believe, with so many potential contributors, that candidates for federal office would be easily bought and sold if that were allowed? Well in states with few campaign finance restrictions for state offices – where the number of potential contributors is substantially smaller – the evidence simply does not support the wild charges of corruption that so animate the Dionnes of the world. But what is evidence when your real agenda is class warfare?
Capital Confusions over Bain Capital
Today POLITICO Arena asks:
Are Romney’s GOP rivals smart to continue their attacks on capitalism that have so far fallen flat? Would this theme be any more effective for the Obama campaign?
My response:
The Gingrich and Perry attacks on Mitt Romney’s work at Bain Capital are appalling. We expect that from Obama — as in yesterday’s “insourcing” press conference — because his understanding of how markets work is so slim and everything, for him, is politics. Those in the party that purports to stand for free markets should never stoop to such shameless pandering.
Steven Rattner’s piece in POLITICO this morning nicely summarizes the facts surrounding Romney’s work at Bain Capital. And yesterday my colleague Steve H. Hanke pointed to a more detailed study issued recently by the National Bureau of Economic Research, “Private Equity and Employment.” As Rattner puts it, Bain Capital’s record “was extraordinary, among the best in the business.” Yes, restructuring companies may cost jobs. Letting them fail does too — but also costs those who’ve invested in them, many of whom are or will be small retirees. At least Romney did it with private funds, not with taxpayer money or regulatory protections. That’s how capitalism works, for the benefit of all of us.
Playing Politics with the Constitution and the Law
Today POLITICO Arena asks:
Did Obama have the authority to make the Cordray and the NLRB appointments, since the Senate is technically not in recess? And will the president’s shift from bipartisan conciliator to partisan agitator pay off?
My response:
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.
Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.
But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’” A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.
So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.
Gingrich Agonistes
Today POLITICO Arena asks:
Can Gingrich rein in “judicial activists”?
My response:
As I wrote in the Daily Caller a week ago, Newt Gingrich’s attack on the judiciary in chapter nine of his 21st Century Contract with America is a mass of constitutional confusions. It’s a direct assault on judicial review and on “judicial supremacy,” in particular — the idea that it falls to the courts to say what the law is. Newt would have us believe that that idea was invented by the Supreme Court in its 1958 decision in Cooper v. Aaron, where a unanimous Court told Arkansas officials resisting a school desegregation order that they couldn’t “nullify” a Court decision. But the power of courts to say what the law is far predates that decision. It’s implicit in our written Constitution with its independent judiciary. It was discussed explicitly and at length in the Federalist Papers. And it was secured by the Court in 1803 in Marbury v. Madison.
Newt: Big Government Conservative
I’ve got a piece over at the Daily Caller this morning entitled “Newt’s Constitutional Confusions,” the title of which only hints at the constitutional apostasy to be found in Gingrich’s voluminous 21st Century Contract with America. Section nine, for example, “Bringing the Courts Back Under the Constitution,” is an unvarnished attack on what Newt sees as run-away courts frustrating the will of the people – as if that, and not run-away government, were our main problem today.
In fact, Newt praises Franklin Roosevelt’s infamous 1937 Court-packing threat, after which the Court largely abdicated its responsibility to check the political branches. And he condemns Cooper v. Aaron, the unanimous 1958 Little Rock school desegregation decision (remember the federal troops Eisenhower sent?) in which the Court told state officials they couldn’t “nullify” Supreme Court rulings. Thus his main target is “judicial supremacy,” the idea – implicit in the Constitution, explicit in the Federalist, and secured in 1803 in Marbury v. Madison – that it falls to the Supreme Court, not to the political branches, to say finally what the law is.
But in making that argument, he completely misreads the decisions. (In Kelo v. New London, his very first example of a willful judiciary, the Court wrongly upheld the city’s transfer of Ms. Kelo’s property to a private developer!) He misreads the Federalist. He relies on Leftist critics of the Rehnquist Court’s modest efforts at reviving enumerated powers federalism. And most important, politically, he’s misleading the Tea Party folks, most of whom stand for restoring limited constitutional government. Indeed, the Tea Party people hope to see an engaged Court overturn ObamaCare, just in case Newt – or better, someone who understands the Constitution – doesn’t win in November.
The Presumption of Liberty?
Check out NPR’s Morning Edition today, at least at 8:00 a.m., and you’ll find the lead item isn’t the impending jobs report, the European economic crisis, or even President Obama’s latest campaign speech. No, it’s “Catholic Groups Fight Contraceptive Rule.” Sex, women, discrimination, religion, and health care: What could be more natural for NPR, more right down its alley? Yet the issues the story raises—not broached in this story, of course—go well beyond those pegs. What we have here, in microcosm, is a conflict with a thousand and one variations in the modern ubiquitous state.
New regulations under ObamaCare, it seems, will require employers, universities, and others who offer health insurance benefits covering prescription drugs to cover prescription contraceptives as well. For many Catholics, of course, that’s a concern. As Catholic University President John Garvey wrote recently in The Washington Post, “if we comply, as the law requires, we will be helping our students do things that we teach them, in our classes and in our sacraments, are sinful—sometimes gravely so.” He and others are asking for a religious liberty exception.
But why stop there? The issue is perfectly generalizable. And it arises in the thousand and one ways it does because our ever-expanding anti-discrimination laws, as they restrict private parties, conflict directly with our liberties—in particular, with our right to associate, or not, with anyone we wish, for any reason, good or bad, or no reason at all.
Currently, the story notes, 28 states require contraceptives to be offered in health plans, eight with no exception for religious organizations. Some have tried to get out from under those laws by self-insuring, but that’s where the federal Pregnancy Discrimination Act of 1978 kicks in. Still, the story adds, an EEOC ruling under that statute binds only if the people being discriminated against take action. Hence the ObamaCare rule, which compels up front.
And what’s the rationale for the anti-discrimination rule? “Prescription contraception is a form of health care that is unique to women,” says the ACLU’s Sarah Lipton-Lubet, “and the consequences of the inability to be able to access contraception, those fall primarily on women.” Women would have no access to contraceptives, we’re invited to believe, if their health insurance plans didn’t pay for them—or access as well to anything else not covered, presumably. That’s how we’ll all end up with “Cadillac plans,” until employers, unable to afford them, will stop providing any health insurance benefits at all—yet then will have to pay the penalty ObamaCare exacts for opting out.
But Ms. Lipton-Lubet’s rationale doesn’t stop there: “What the bishops and their allies are asking for is the ability to impose their religious beliefs on people who don’t share them,” she says. Think about that. It’s the bishops who are forcing their beliefs on others, not the government that is forcing employers to pay for coverage they oppose. That’s what we come to when, as Obama has repeatedly said, “we’re all in this together.” Opting out, cost free, is not an option—it’s discrimination, whether in health care, or housing, or lending, or college admissions, or employment, or any other private endeavor that today is so highly regulated by our anti-discrimination laws. Freedom of association is today the exception, not the rule, with government in charge of dispensing the exceptions.
Should Thomas or Kagan Recuse Themselves Over ObamaCare?
Today POLITICO Arena asks:
Should either Justices Thomas or Kagan recuse themselves from the ObamaCare case?
My response:
Justice Thomas is the easier case, because he had no involvement in the ObamaCare legislation or legal strategy, nor did his wife. As Tevi Troy commented in yesterday’s POLITICO, citing “alumni of the White House Counsel’s Office from several administrations,” Thomas’s ”wife’s activities would come into play only if she had a financial interest at stake in the case, which she does not.” And as Marcia Coyle and Tony Mauro noted in Monday’s National Law Journal, citing DePaul Law School’s Jeffrey Shaman, “Twenty-five years ago, they might have said judges should control their wives. But she has a right to her own life.”
Justice Kagan is a closer call. We already know her sentiments about ObamaCare from her breathless email to Harvard Law’s Laurence Tribe: “I hear they have the votes, Larry!!” But the real question is how closely she was involved in developing the legal strategy for defending the law – as head of the Justice Department office charged with that responsibility. As The Hill reported yesterday, “Emails show that Kagan’s office mounted an early and aggressive effort to prepare for legal challenges to the individual insurance mandate, but the records released so far do not contradict Kagan’s statement that she was not directly involved in the planning.” The operative words are “so far,” which is why House Judiciary Committee Chairman Lamar Smith, as POLITICO reported yesterday, “has asked the Obama administration to provide documents and internal correspondence on … Kagan’s role in defense of the health reform law.”
In the end, of course, recusal is the justice’s call. But especially in a case as important as this, the public deserves to know the facts.
It Goes Beyond the Supercommittee
Today Politico Arena asks:
Should Obama have led the supercommittee?
My response:
Whether or not Obama had led the supercommittee in its effort to trim a pittance from our federal deficits and debt, the effort was doomed from the start for the reasons committee co-chairman Jeb Hensarling stated in this morning’s Wall Street Journal: “Ultimately, the committee did not succeed because we could not bridge the gap between two dramatically competing visions of the role government should play in a free society, the proper purpose and design of the social safety net, and the fundamentals of job creation and economic growth.”
Obama has proven himself clueless about economics from the time he first entered public life, as evidenced by the economic disaster surrounding him and his party. Their vision was soundly rejected by the voters a year ago. If it is rejected again a year from now, we may start the slow climb out of the hole that they, as well as Republicans who share their vision, have put us in. But if the voters give us a mixed result, it’s only a matter of time before our creditors exact the price of our economic irresponsibility. These lessons, the subjects of children’s books and learned lectures, are as old as humanity itself. We have only to heed them.
Bring It On, OWS!
This morning POLITICO Arena asks:
Has the Occupy Wall Street movement accomplished anything?
My brief response:
Has OWS accomplished anything? Yes, it’s revived the mindless, narcissistic approach to public affairs that came out of the 1960s. And I’m delighted that the mainstream media has given OWS far more sympathetic attention than it ever gave the Tea Party, because it’ll all play out in next year’s elections. March on, OWS!
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