Tag: Inauguration

Handicapping the Justicial Horserace

The increase in chatter in Washington about Justice Souter’s replacement is a clear signal  that pundits have gotten about as much mileage as they can over speculation and want to have an actual nominee to dissect.

Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.

The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.

As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.

For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.

The Guantanamo Bubble Pops

Within a day of Barack Obama’s inauguration, he has asked the military commissions judges to halt all trials in Guantanamo.  All indications point toward detainees being tried in federal courts.  This is a good decision for a couple of reasons.

First, the military commissions play into the propaganda game that terrorists thrive on.  It confirms their message that normal courts can’t address the threat that they pose.  In fact, the opposite is true.  When you convict a terrorist and lock him up with murderers and rapists, you take away his freedom fighter mystique.

Second, the trial of Omar Khadr was about to start.  Khadr fought alongside a band of Al Qaeda-affiliated terrorists and allegedly killed Special Forces medic Christopher Speer with a hand grenade.  Khadr deserves to be locked up, and letting his military commission trial start would create a Double Jeopardy issue if we interrupt the proceedings somewhere down the road and move him to federal court.

President Obama is also circulating a draft order for the closing of detainee operations at Guantanamo.  The memo sets a 12 month deadline for deciding whether to try, release, or continue holding each detainee.  Good move.

The Obamacare to Come…

In Barack Obama’s inaugural address, he once again made it clear that he intends to fix our “too costly” health care system in order to “raise health care’s quality and lower its cost.” This is to be expected. Then-candidate Obama made health care reform a major issue during the campaign, and his actions sincesuch as naming former South Dakota Senator Tom Daschle as both Secretary of Health and Human Services and White house “health czar”—suggest that health care reform remains at the top of his agenda.

But what will Obamacare look like? The president has not yet released a plan, but from his campaign statements, the plan outlined by Senate finance committee chairman Max Baucus, a bill introduced by Sen. Ron Wyden (D-OR), and Secretary Daschle’s book, it’s possible to glimpse at the basic components.

Mandates: Almost certainly President Obama will propose a mandate on businesses to provide health insurance to their workers. There may or may not be an exemption for small business or some type of tax credit to offset costs. And, while President Obama opposed an individual mandate during the campaign, all the other Democratic plans embrace such a requirement, and the logic of President Obama’s plan leads inexorably toward an individual mandate.

Minimum Benefits Package: Both President Obama and congressional Democrats have long supported a requirement that all insurance plans offer a standard minimum package of benefits.

Regulation: All the Democratic plans call for a host of new regulation on insurers, including insurers to accept all applicants regardless of their health (guaranteed issue) and would forbid insurers from basing insurance premiums on risk factors such as health or age (community rating). There may also be a requirement that insurers pay out a minimum amount of premiums in benefits.

Subsidies: Low- and likely middle-income Americans will be subsidized. The changes in the SCHIP program passed by the House earlier this week, allowing states to subsidize children from families earning up to 400 percent of the poverty level, suggests the direction that any reform bill will take.

Imposed Cost-Effectiveness: Secretary Daschle, in particular, has called for a government panel to study the comparative effectiveness of various treatments and establish standards of practice for providers. A key battle will be over whether these standards become mandatory, effectively denying patients a full choice of treatments.

A Government-Plan: Both the president and leading Democratic health reformers embrace the concept of a government health care program similar to Medicare operating in competition with private health insurance.

The net result of a plan based on these concepts will be a system in which, while privately-owned health insurance will continue to exist, the government makes all the important decisions. As my colleague Michael Cannon has pointed out, that’s “socialized medicine” no matter how it is disguised.  And, it is bad news for American patients, health care providers, and taxpayers.

Responsibilities

President Obama delivered an interesting inaugural speech yesterday. His theme was responsibility, a theme that provides a useful frame for his administration.

The individual versus the collective: Americans generally affirm individual or personal responsibility for one’s life. To be an adult – to put aside childish things - means taking responsibility for one’s actions and outcomes. Yet language permits another possibility. “We” can take responsibility for this outcome or that injustice. Putting aside childish things means taking collective responsibility through government action. In this view, emphasizing the individual suggests a childish selfishness that should be overcome. Obama seems to be about both kinds of responsibility right now. But extending state control over society vitiates personal responsibility. The new president will have to choose between the two.

The rule of law versus charisma: In a free society, individuals associate together through consent within a set of impersonal rules enforced by an impartial judiciary. Societies may also be ruled by charismatic leaders who are thought to have special powers granted by divine favor or by other means. Charismatic authority undermines both individual and collective responsibility. No one need do anything: the special man will say the magic words and everything will change for the better. Moreover, charismatic men with special powers should not be restrained by mere laws. They are above such restraints and must be so to do their work.

Consequences versus absolute ends: In an ethic of responsibility, leaders and followers look to consequences in acting politically. President Obama alluded to an ethic of responsibility yesterday. We want a government that works; programs that do not work will be ended. The thought is admirable, the reality unpromising. Ronald Reagan eliminated two federal programs, one of which was a training program that worsened the lot of its clients. Reagan was thought to have a mandate to cut back government. Obama was elected for many reasons, none of which were constraining the federal government. More than a few of his followers expect he will, as he put it yesterday, “remake the world.” Those who set out to remake the world rarely notice the immediate consequences of their crusade. After all, the benefits of bringing heaven to earth will more than overcome the costs of the crusade.

Obama’s modest demeanor suggests an understanding of his own limitations.  If that is true, he may turn out to be more a politician and less a priest, a president content to live within the laws and achieve marginal changes in public policy.

But I wonder. Living in Washington, DC, I have recently had reason to recall Samuel Johnson’s remark about Shakespeare: “In his plays, there are no heroes, only men.” Obama seems to be telling a different story, a tale about charismatic heroes and utopian aspirations. When the talking stops and the doing begins, one question will be answered: Do Americans really want to live out a play where there are no men, only heroes?

A Government That “Works,” but for Whom?

In his inaugural address yesterday, President Obama tried to step around the central question of whether the federal government has grown too big and powerful:

The question we ask today is not whether our government is too big or too small, but whether it works, whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end.

Even in skirting the question, President Obama has in effect come down on the side of bigger government. His statement assumes that government programs will be central to creating jobs and providing health care and retirement security. For every problem confronting American families, it is just a question of finding the right program that “works.” He leaves off the table the very real possibility that government intervention has made each of those problems more difficult for Americans to solve, and that the answer really is a smaller role for government.

The other open question is who decides if a government program “works.” President Obama has wrapped himself in the mantle of change, yet as a candidate he endorsed the 2008 farm bill. The existing U.S. policy of production subsidies and import tariffs, a policy that has remained essentially unchanged for 75 years, arguably “works” for a small number of relatively well-off sugar, dairy, corn, rice, and cotton farmers. But for the vast majority of Americans, the farm bill delivers higher and more volatile prices at the store, billions of dollars a year in additional government spending, higher cost for U.S. businesses, a degraded environment, and a harder slog out of poverty for millions of farmers in less developed countries. [You can go here to find Cato research on how farm programs have failed to work in our national interest.]

If Senator and candidate Obama could not see the need to end our failed farm policies, it is hard to imagine many if any other programs that will come to an end under his administration.

For more on how scrapping farm subsidies would be a good first step toward removing failed government programs, watch this video: