Strengthening Constitutional Self-Government

No Left Turns

Published in Politics


Understanding Obama

Forget the birther nonsense, etc. Former Intelligence Committee staffer and author Angelo Codevilla establishes that Obama grew up in a  world deeply influenced by the CIA, among other establishment institutions. The key here is his life in Indonesia. Did you know his mother's supervisor was one Peter Geithner? The lead-in to this:

Consistent with the Barack Obama we know, however, are his real family, his real upbringing, and his real choices of profession and associates. His mother's parents, who raised him, seem to have been cogs in the U.S. government's well-heeled, well-connected machine for influencing the world, whether openly ("gray influence") or covertly ("black operations"). His mother spent her life and marriages, and birthed her children, working in that machine. For paradigms of young Barack's demeanor, proclivities, opinions, language, and attitudes one need look no further than the persons who ran the institutions that his mother and grandparents served--e.g., the Ford Foundation, the United States Information Agency, and the Central Intelligence Agency--as well as his chosen mentors and colleagues. It is here, with these people and institutions, that one should begin to unravel the unknowns surrounding him.

At the very least one can conclude that far from being on the outs, young Obama was always part of a segment of this country's ruling elite.

Categories > Presidency

Men and Women

Defending Julia

Defending these other Julias--and not the woman in Orwell's 1984. From Robert Herrick:

WHENAS in silks my Julia goes,
Then, then, methinks, how sweetly flows
That liquefaction of her clothes.

... Next, when I cast mine eyes and see
That brave vibration each way free ;
O how that glittering taketh me !

You really wanna get rough with Julia, try John Donne's "Julia," Elegy 14:

Her hands, I know not how, used more to spill
The food of others than herself to fill ;
But O ! her mind, that Orcus, which includes
Legions of mischiefs, countless multitudes
Of formless curses, projects unmade up,
Abuses yet unfashion'd, thoughts corrupt,
Misshapen cavils, palpable untroths,
Inevitable errors, self-accusing loaths.
These, like those atoms swarming in the sun,
Throng in her bosom for creation.
I blush to give her halfe her due ; yet say,
No poison's half so bad as Julia.

Finally, try Julia Shaw, who unfavorably compares Obama's Julia to Tocqueville's American woman, whose superiority was responsible for American greatness.

Categories > Men and Women


The Politics of the OBL Killing

What has been underappreciated about Obama's decision to kill bin Laden was that he had planned it out in his mind years before. During the 2008 campaign he made news--e.g., this commentary--by declaring he would not hesitate to violate Pakistan's sovereignty if necessary. Obama must have asked himself what he could do to project foreign policy strengths while maintaining internationalist credentials. The most politically popular goal was to get Osama, and he reverse-engineered how this might happen: increased drone strikes, for one. When intelligence connected enough dots, he made his move, and he won. This victory of course does not excuse a multitude of other sins, all intended to force America into multilateral agreements, even in a good cause (e.g., Libya). If anything, the killing of bin Laden is the exception that proves the rule about Obama's often feckless foreign policy.
Categories > Presidency

Health Care

Sebelius Brushes Off Religious Liberty

At a congressional hearing, HHS Secretary Sebelius has to admit she did not consider constitutionally protected religious liberty when she issued her now infamous HHS mandate on insurance coverage of sterilization and contraception. Congressman Gowdy pins her down. Her worst excuse was that she is not a lawyer.

Categories > Health Care


The Ideological Hack As Universal Genius

President Obama's stubborn persistence when he is wrong can be perplexing.  So last week he said that the Supreme Court overturning Obamacare would be a "an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."  Now that obviously wasn't right.  And there is nothing wrong with misspeaking sometimes.  Everybody does it.  If he had just said he was wrong, the only people who would hold it against Obama would be the ones who are already against him  But he couldn't just admit he was wrong.  He had to say that he was right but that everybody misheard him (stupid everybody.)  President Obama then clarified by telling us that he only meant that the Supreme Court had not struck down an economic law passed by Congress since Lochner.   Only several problems with this analysis.  Lochner wasn't about a federal law.  It was about a state law.  Also, the Supreme Court continued to invalidate federal economic regulations for more than a quarter century after the Lochner decision.  So why did President Obama double down on the wrong?

I think it is because he is used to not getting caught.  President pretends to be the above-it-all guy who isn't about ideology.  He is about reality and everybody else is about ideology.  He has a good affect to pull of this act.  He is naturally confident and very calm.  The calm is especially important.  Rick Santorum has plenty of confidence, but he often comes across like a hothead.  It often looks like Santorum's reason has been overcome with his passion.  If people don't know the specifics of what Obama is talking about, they are inclined to give his statements the benefit of the doubt.

So President Obama says that the Solyndra loan was happened because "The understanding is that some companies are not going to succeed, some companies will do very well -- but the portfolio as a whole ends up supporting the kind of innovation that helps make America successful in this innovative 21st century economy,"  So he is just a futurist technocrat right?  He is making the investments that are going to make America a big success.  So let's give the government capitalist in the White House a break.  He isn't going to get all of the calls right. 

Well then it turns out that the vetting for Solyndra was rushed and that the real experts at the Treasury Department weren't allowed to weigh in.  The real story is that Obama is less a visionary investor in the future and more a crony capitalist with an ideological fixation on green energy.

Or what about Obama's attack on the latest version of the Ryan budget?  President Obama argued that, under Ryan's plan, seniors would have to pay more to enroll in traditional Fee For Service Medicare.  It turns out that all the programs offered under the Ryan budget would include at least the same actuarial benefits as Medicare and lower cost options would only be viable if they offered the same benefits at a lower price.  Oh, and Ryan proposes to grow Medicare spending at the same rate as President Obama.

So why does Obama do all this?  The main reason is that he usually gets away with it.  A lot more people have heard Obama's promises about government-financed green energy than have heard about the Treasury Department's inspector general report on Solyndra.  The President has the megaphone so a lot more people heard his attack on the Ryan budget than read Ryan's rebuttal.  The problem with Obama's "unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress" comment wasn't that it was false, it was that so much of the political press called him out on it and lots of people have the vague, remember-it-from-high school knowledge that the Supreme Court has struck down federal laws lots of times.  Most people have no such context when it comes to Solyndra or the Ryan budget. 

The Obama above-it-all act works pretty well, but it is fragile.  If he gets skewered just right, it doesn't matter how calm or confident he seems.  The spell is broken.  The Romney team needs to point to the gap between the rhetorical Obama and the real Obama.  He is the constitutional law professor who tries to tell you that the Supreme Court never struck down a law passed by a "strong majority" of Congress.  He is the crony capitalist who says he is investing in the future but is really just carelessly shoveling money out the door to politically connected companies.  He can't tell the truth about either his own Medicare proposal or that of the Republicans and then he says it is all about the math.  I think humor would be the best weapon here.  There is something absurd about the way Obama presents himself.  Exposing the absurdity in a way that doesn't come across as mean spirited would be the best way to deflate the incumbent, but that is a hard trick to pull off.         
Categories > Politics


Our Constitutional Law Professor President

President Obama edified the country today when he told us that "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

If he wasn't a former constitutional law professor, I would point out one could maybe find precedent for a law passed by a strong majority of a democratically elected Congress that was overturned by the Supreme Court. 
Categories > Politics


Deeply Shaken

I saw Howard Dean on Fox News Sunday.  He was saying that it would be a victory for the President if the Supreme Court Justices strike down the individual insurance purchase mandate and uphold the rest of Obamacare.  We've come a long way from when liberal commentators were assuring us that the legal case for Obamacare was a slam dunk.  Now we have Howard Dean pretty much begging the Supreme Court to uphold part of Obamacare and hoping he can spin the partial survival of the law into a political win.  Smugness has been replaced with panic.

The panic is premature.  I take it as a given that only Anthony Kennedy knows how he is going to vote on Obamacare.  And maybe not even he knows.  And even if he thinks he knows, he might change his mind.  I've been rereading Jan Crawford Greenburg's excellent  Supreme Conflict.  The book won't help you predict what Kennedy will do on the mandate, but it might make your confusion better informed.

From the oral arguments, Kennedy clearly seemed to think that the insurance purchase mandate was an unprecedented and fundamental expansion of federal power under the interstate commerce clause.  He was skeptical that the interstate commerce clause gave Congress the power to force citizens to contract with a private company to purchase a particular class of product.  He also seemed skeptical that, if the Supreme Court consented that Congress had this power in matters of health insurance, the power could then be cabined to only health insurance and not cell phones, broccoli, burial insurance, or whatever other product Congress imagined.  Every attempt by the Solicitor General to construct a "limiting principle" was quickly demolished.  This is possibly because neither the Solicitor General, nor the administration he represented, nor the congressional majorities who voted for the law believed that any such limiting principle was necessary.  The result was a group of badly thought out bad faith arguments that collapsed under questioning.  Before liberals get too upset with the Solicitor General, they should remember that he would have fared even worse if he had been more honest and argued something along the lines of "Hell yeah the Congress can mandate that Catholic Charities purchase aborted fetuses by the dozen as a way to reduce premiums for government-mandated abortion insurance.  The Supreme Court said so.  Where?  It was that case with the wheat or the weed, or the national bank.  I dunno."

So what is Kennedy going to do?  I think some of it will come down to Kennedy's self-image.  Greenburg quotes Kennedy as saying "I try to accommodate more of the precedents in a more case-by-case approach than does, say, Nino [Scalia] or Bill Brennan."  I think that Kennedy's self-image has some major reality problems when you look at his votes and opinions on the death penalty and social issues, but it is still his self-image.  If the conservative Supreme Court Justices (and especially the careful and prudent John Roberts) can convince Kennedy that striking down the Obamacare mandate does not mean striking down (even in part) New Deal-era precedents like Wickard, then Kennedy might vote to strike down the mandate. 

On the other hand, Greenburg writes that Kennedy "pays attention to the social and political fallout from the Court's work, and frequently winds up in the middle, looking for that elusive compromise position that will resolve the most divisive either-or cases."  Kennedy must know that, if he votes to strike down the mandate, he will be cursed by center-left dominated institutions to his grave and beyond.  So he might put aside his principles (to the extent he has any or understands those he thinks he has), and try to find a "compromise" that will maximally salvage his reputation with every side and maybe accommodate his principles a little too.  One can imagine Kennedy talking himself into a "compromise" where he votes to uphold the mandate and conservatives get a little eyewash about how Congress only has the power to impose purchase mandates on health insurance - until Obama appoints another Supreme Court Justice.  Heh, heh.

Liberals and conservatives each have plenty of reason to chew antacids until the Supreme Court announces its decision.     
Categories > Politics


I Wonder Why Solicitor General Verrilli...

didn't go with the statements (I won't call them arguments) of Andrew Cohen in this meltdown brought on by the Supreme Court's critical examination of the constitutionality of the federal health insurance purchase mandate.  It is a powerful example of the combination of self-righteousness, confusion, hysteria, and tyrannical spirit that made this week's oral arguments such an unpleasant experience for so many liberal elites.  Cohen has produced a target-rich post, but just a few examples:

1.  Cohen writes, "The Constitution is what the justices say it is, nothing more and nothing less. But this law is clearly within Congress' power"  Well, which is it?  If the Constitution is what the Supreme Court says is it, then, based on Cohen's own premise, it is unclear whether the federal health insurance purchase mandate is within Congress' power and if a majority of the Court votes to strike down the federal mandate, then it will "clearly" beyond the constitutional power of Congress.  But Cohen clearly suggests that the federal health insurance purchase mandate is within Congress' power regardless of what the Supreme Court decides.  We can see Cohen's constitutional nihilism struggling with his self-regard.  The Constitution is what the Supreme Court says it is when the Supreme Court agrees with Cohen.  The Constitution is "clearly" what Cohen says it is when the Supreme Court has the temerity to disagree.  Perhaps this argument is less than convincing to those who share neither Andrew Cohen's ideology nor Andrew Cohen's high opinion of Andrew Cohen.

2. Speaking of Andrew Cohen's high opinion of Andrew Cohen.  Cohen writes of Chief Justice John Roberts  "The chief justice has something to prove to progressives." He flatters himself.  I pretty sure that the proper response to a brush with the esteem of Andrew Cohen is apply bleach to the affected area.
Categories > Politics


What Part Of 'Because I Said So' Don't You Understand?

So it looks like Solicitor General Verrilli was shredded by the Supreme Court Justices yesterday on the question of the federal health insurance purchase mandate.  Many liberal journalists are shocked at his inarticulateness.  Liberal journalists should blame themselves a little.  The arguments advanced for the federal health insurance purchase mandate often came down to some combination of "only mean people oppose nice President Obama's law" or "all really smart and honest people all agree with smart and honest me that Obamacare is like so totally constitutional."  Dalia Lithwick's tantrum is an example of the first kind of argument and Jonathan Chait's rant is an example of the second.  Lithwick's post is less interesting.  It doesn't contain any actual arguments about why the Obamacare mandate is constitutional.  She mostly just says that only a horrible person would even think about considering whether such a wonderful law as Obamacare is constitutional.  I wonder why Solicitor General Verrilli didn't go with that strategy during oral arguments.

Chait's post is a more telling example of how self-congratulation and group think can weaken one side's argument.  Chait writes that the health insurance purchase mandate must be constitutional because health care is interstate commerce and the federal government must therefore be able to compel an individual to contract with a private firm to purchase a product they do not want.  Chait specifically takes on the activity/inactivity distinction.  Chait argues that the government does regulate inactivity in that it mandates vaccinations and sometimes compels military service. The federal government derives the power to draft from the power to raise armies and navies rather than the interstate commerce clause.  The states (not the federal government) have the power to compel vaccinations from the general police power that the federal government lacks.  That is why the Supreme Court is very unlikely to strike down the state-level Romneycare insurance purchase mandate and more likely to strike down the federal-level Obamacare insurance purchase mandate (one can imagine circumstances where the federal government mandates vaccinations for certain classes of citizens - soldiers for instance.) 

The problem with all of this wooly thinking is that it leaves one badly prepared when one steps out of the bubble of the likeminded.  Imagine if Solicitor General Verrilli had said something along the lines of "Well of course the interstate commerce clause gives Congress the power to force people to buy health insurance.  Congress has the power to draft don't they?"  Even the liberal Justices would have laughed at him in horror and disgust.  Solicitor General Verrilli couldn't say "Well sure transportation is an interstate industry and everyone participates in transportation markets, so therefore Congress has the power to mandate that every American contract with General Motors to buy a Chevy Volt or else pay a civil penalty."  That stuff works when you are around the campfire with people who really really want the Supreme Court to uphold Obamacare.  It works less well when you are in front of Supreme Court Justices who are under the impression that the Constitution created a federal government of limited powers.

So Solicitor General Verrilli did his pitiful tap dance about how the health care market is "different" and how the federal government has the power to compel you to buy health insurance but not a cell phone or burial insurance.  And the result was that the more conservative Justices pounded him into the ground.  The problem wasn't Verrilli.  It was the quality of his arguments.  And that leaves Lithwick and Chait to explain that only meanies and poopyheads disagree with them.

Before you laugh at Lithwick and Chait, keep in mind that Justice Kennedy might find their arguments (which are attacks on the status of those who disagree with them) more convincing than the constitutional arguments of the Solicitor General.       
Categories > Politics


Anthony Kennedy and Status Rewards

My read of the Obamacare oral arguments at the Supreme Court is that it comes down to Anthony Kennedy and that Kennedy is facing a tough calculation.  It looks like Kennedy is leaning in the direction of thinking that the Obamacare federal health insurance purchase mandate is an unconstitutional expansion of federal power, but that he is also desperate to find some kind of an out that will let him uphold both the mandate and whatever idea of constitutionally limited government Kennedy carries around in his head. 

Well if he thinks the federal mandate is unconstitutional, why not just say that it is unconstitutional?  I think some of it has to do with status rewards.  One of the reasons I was pretty confident that the House Democratic leadership would attract enough wavering members to pass Obamacare was because liberal-dominated institutions would be able to provide safe landing spots and decades of ego rewards to members who voted for Obamacare and lost their next election.  Lose a House seat, gain a professorship, an ambassadorship, or a Profiles In Courage Award.  I think Kennedy might be looking at the flip side of this liberal cultural power.  The center-left has been desperate to gain government-run health care for decades.  Kennedy must know that if he strikes down the Obamacare mandate, he is going to go down as a historical villain in all of the institutions controlled by the center-left.  This will be much bigger than his decision in Bush v. Gore and his opinion in Lawrence won't gain him any clemency for his crime of smashing the center-left dream of government-run health care.  If he votes to strike down the mandate, who-knows-how-many law professors, NPR legal commentators, and New York Times editorial writers will abominate Anthony Kennedy's name to his grave and beyond.  He shouldn't care about that, but I fear that he does.  I fear that the constitutional argument over Obamacare won't be won on the legal merits.  The fate of Obamacare might come down to a contest between Kennedy's intuition that the federal mandate is unconstitutional, and his dread of the backlash in liberal-leaning institutions like the legal academy and the mainstream media.
Categories > Politics