Topic: Government and Politics

What If We Applied the IRS’s Reasoning in Halbig & King to the Patriot Act or RFRA, Instead of the ACA?

Over at Darwin’s Fool, I posted a critique of the Fourth Circuit’s opinion in King v. Burwell. Unlike the D.C. Circuit’s ruling in Halbig v. Burwell, the Fourth Circuit held that the IRS has the authority to issue subsidies in states with federal exchanges, despite the fact that the Patient Protection and Affordable Care Act repeatedly says subsidy recipients must enroll in coverage “through an Exchange established by the State.” I reproduce here my response to a commenter to that post, as his argument parallels those of many others who have been critical of these cases.

My commenter objected that a plain-text reading “must include the entire text of the bill,” which “makes clear that the goal of the bill was to provide health care to all Americans who needed it and could not, at that time get it.” Moreover, “It would be illogical for Congress to establish a national health care system that is based on subsidies and then not include those subsidies in all aspects,” thus “it is entirely reasonable to interpret that one sentence to mean that Congress intended the subsidies for all participants.” My reply:

Sir, I’m afraid you have things exactly backward.

The overall context of the PPACA presents no difficulty for the plaintiffs in King v. Burwell, Halbig v. Burwell, or the other cases challenging subsidies in federal exchanges. The text of the eligibility rules for those subsidies clearly and repeatedly limit eligibility to those who enroll in coverage “through an Exchange established by the State.” There is nothing in the broader context of the statute to suggest that Congress understood the words “established by the State” to have any meaning other than their usual meaning. There isn’t even any statutory language that conflicts with that plain meaning. Jonathan Adler and I addressed (almost) all of these supposed anomalies here.

On the contrary, it is the Obama administration and its supporters for whom both the text and context present difficulties. (We can no longer call them supporters of the PPACA, given how adamantly opposed they are to implementing the law as Congress intended.) The subsidy-eligibility rules are the only place where Congress spoke directly to the question at issue. Those rules flatly contradict the administration’s position. Congress did not throw the phrase “established by the State” around loosely. They referred to exchanges “established by the State” when they meant exchanges established by the states. They referred generically to “an Exchange” when they meant either a state-established or a federal exchange. And they referred to state-established and federally established exchanges separately within a single provision, which shows they saw a difference between the two. Congress also did the exact same thing – withholding subsidies from residents of uncooperative states – in the PPACA’s other massive new entitlement program, the Medicaid expansion.<--break->

IPAB Case Coons v. Geithner Dismissed, for Now

Jonathan Adler has a summary at the Volokh Conspiracy.

The Patient Protection and Affordable Care Act’s Independent Payment Advisory Board has been called a “death panel,” though I’ve argued one could just as legitimately call it a “life panel.” Either way, it is the most absurdly unconstitutional part of the PPACA.

Adler’s otherwise excellent summary neglects to mention IPAB’s most unconstitutional feature. Diane Cohen and I describe it here:

The Act requires the Secretary of Health and Human Services to implement [IPAB’s] legislative proposals without regard for congressional or presidential approval. Congress may only stop IPAB from issuing self-executing legislative proposals if three-fifths of all sworn members of Congress pass a joint resolution to dissolve IPAB during a short window in 2017. Even then, IPAB’s enabling statute dictates the terms of its own repeal, and it continues to grant IPAB the power to legislate for six months after Congress repeals it. If Congress fails to repeal IPAB through this process, then Congress can never again alter or reject IPAB’s proposals…

Congress may amend or reject IPAB proposals, subject to stringent limitations, but only from 2015 through 2019. If Congress fails to repeal IPAB in 2017, then after 2019, IPAB may legislate without any congressional interference.

Like I said, absurdly unconstitutional. But that’s ObamaCare for you.

Will Republicans Offer Alternative to Neoconservative Hillary Clinton in 2016?

U.S. foreign policy is a bipartisan fiasco.  George W. Bush gave the American people Iraq, the gift that keeps on giving.  Barack Obama is a slightly more reluctant warrior, but he is taking the country back into Iraq.

Hillary Clinton, the unannounced Democratic front-runner for 2016, supported her husband’s misbegotten attempt at nation-building in Kosovo and led the drive for war in Libya, which is violently unraveling.  Most of Clinton’s potential GOP opponents share Washington’s bomb, invade, and occupy consensus. 

The only exception is Kentucky Sen. Rand Paul.  He stands alone advocating a foreign policy which reflects the bitter, bloody lessons of recent years.

The Islamic State of Syria and the Levant is the latest result of Washington’s incessant and counterproductive meddling in the Middle East.  But the usual suspects are calling for more intervention, more war.  This time, they promise, everything will go well. 

This is the Obama administration’s position in Iraq and Syria.  However, Hillary Clinton has begun maneuvering for 2016 by running to Obama’s right.  While she mocked the president’s mantra of “Don’t do stupid stuff,” she spent her career doing just that.

Instead of offering an alternative leading Republicans are all in for war, more war, forever war.  Senators John McCain and Lindsey Graham, naturally have been advocating that America intervene more in both Syria and Iraq. 

Most plausible Republican candidates are running toward the interventionist sideline.  They blame Obama for Iraq even though it was George W. Bush who invaded that nation and failed to win Iraqi approval for a permanent U.S. garrison. 

New Jersey’s Gov. Chris Christie has ostentatiously joined the most hawkish GOP elements.  Former Arkansas Gov. Mike Huckabee accused President Obama of guessing wrong in Egypt, Iran, Libya, and Syria, even though the president acted on the traditional Republican script in all four cases.

Florida’s Marco Rubio advocated military action against ISIL, after supporting the usual plethora of interventionist disasters:  war in Libya, more involvement in Syria, and now combat in Iraq.  Texas Sen. Ted Cruz also pushes a strongly hawkish agenda, though he at least opposed bombing Syrian government forces. 

Last month Texas Gov. Rick Perry attacked Paul as an isolationist and advocating that the U.S. go back to war in Iraq.  Michael Goldfarb approvingly said of Perry “you have to assume he’d shoot first and ask questions later.” 

Dramatically misguided was the latter’s contention that “isolationism”—in contrast to the promiscuous interventionism of the last three decades which has spawned so many vicious attacks—threatened to increase terrorism. 

Underlying the torrent of Republican criticism of Paul is fear.  The American people are tired of incessant war-mongering by the Washington elite.  Paul rightly noted that “The country is moving in my direction.”  That’s scary if your political future is tied to policies that have failed so flagrantly and frequently. 

Paul is more cautious than his father, former Rep. Ron Paul.  Nevertheless, Paul fils recently noted that “The let’s-intervene-and-consider-the-consequences-later crowd left us with more than 4,000 Americans dead, over two million refugees and trillions of dollars in debt.”

In citing President Ronald Reagan’s maxim of “peace through strength,” Paul noted some Republicans “have forgotten the first part of the sentence:  That peace should be our goal even as we build our strength.” As I note in my latest Forbes online column, people are tired of young Americans “being treated as gambit pawns in an endless series of global chess games, to be sacrificed whenever folks in Washington dream up a grand new crusade.”

Hillary Clinton represents today’s foreign policy consensus—of constant intervention and war.  Nominating someone who advocates the same failed policy would seem to be the best way for Republicans to lose in 2016.  Will anyone join Rand Paul in charting a different course?

Is Hillary the Heir Apparent?

The New York Times reported Thursday:

Mr. Obama is fast becoming the past, not the future, for donors, activists and Democratic strategists. Party leaders are increasingly turning toward Mrs. Clinton and her husband, former President Bill Clinton, as Democrats face difficult races this fall in states where the president is especially unpopular, and her aides are making plain that she has no intention of running for “Obama’s third term.”

Which put me in mind of this statement famously attributed to another woman who had “the heart and stomach of a king” and the will to rule, Queen Elizabeth I:

I know the inconstancy of the English people, how they ever mislike the present government and have their eyes fixed upon that person who is next to succeed. More people adore the rising sun than the setting sun.

Which is why Elizabeth never designated a successor. Every incumbent president probably wishes he had that power.

Transparency Is Breaking Out All Over!

On Monday, Cato is hosting a briefing on Capitol Hill about congressional Wikipedia editing. Over a recent 90-day period, there were over 400,000 hits on Wikipedia articles about bills pending in Congress. If congressional staff were to contribute more to those articles, the amount of information available to interested members of the public would soar. Data that we produce at Cato go into the “infoboxes” on dozens and dozens of Wikipedia articles about bills in Congress.

A popular Twitter ‘bot called @congressedits recently created a spike in interest about congressional Wikipedia editing. It puts a slight negative spin on the practice because it tracks anonymous edits coming from Hill IP addresses, which are more likely to be inappropriate. But Congress can do a lot of good in this area, so Cato intern Zach Williams built a Twitter ‘bot that shows all edits to articles about pending federal legislation. This should draw attention to the beneficial practice of informing the public before bills become law. Meet @Wikibills!

Also, as of this week, Cato data are helping to inform some 26 million visitors per year to Cornell Law’s Legal Information Institute about what Congress is doing. Thanks to Tom Bruce and Sara Frug for adding some great content to the LII site.

Let’s say you’re interested in 18 U.S. Code § 2516, the part of the U.S. code that authorizes interception of wire, oral, or electronic communications. Searching for it online, you’ll probably reach the Cornell page for that section of the code. In the right column, a box displays “Related bills now in Congress,” linking to relevant bills in Congress.

Those hyperlinks are democratic links, letting people know what Congress is doing, so people can look into it and have their say. Does liberty automatically break out thanks to those developments? No. But public demands of all types—including for liberty and limited government—are frustrated now by the utter obscurity in which Congress acts. We’re lifting the curtain, providing the data that translates into a better informed public, a public better equipped to get what it wants.

The path to liberty goes through transparency, and transparency is breaking out all over!

Has Freedom Finally Arrived? No, We’ll Have to Bring It!

The New York Times wonders if the libertarian moment has arrived. Unfortunately, there’ve been false starts before. 

Ronald Reagan’s election seemed the harbinger of a new freedom wave. His rhetoric was great, but actual accomplishments lagged far behind. 

So, too, with the 1994 Republican takeover of Congress.  Alas, the GOP in office behaved little different than many Democrats. 

Since then there’s been even less to celebrate—in America, at least. George W. Bush was an avid proponent of “compassionate,” big-government conservatism. Federa outlays rose faster than under his Democratic predecessor. Barack Obama has continued Uncle Sam’s bailout tradition, promoting corporate welfare, pushing through a massive “stimulus” bill for the bank accounts of federal contractors, and seizing control of what remained private in the health care system.

Over the last half century, members of both parties took a welfare state that was of modest size despite the excesses of Franklin Delano Roosevelt’s New Deal and put it on a fiscally unsustainable basis as part of the misnamed “Great Society.” Economist Lawrence Kotlikoff figures government’s total unfunded liability at around $220 trillion. 

The national government has done no better with international issues. Trillions went for misnamed “foreign aid” that subsidized collectivism and autocracy. Trade liberalization faces determined resistance and often is blocked by countries that would gain great benefits from global commerce.

Even worse has been foreign policy. The joy people felt from the collapse of the Berlin Wall a quarter century ago has been forgotten. 

China and the U.S.: Similar Frustrations, Different Policies toward North Korea

SHENYANG, CHINA—China-Korean relations are in a state of flux.  The People’s Republic of China and South Korea have exchanged presidential visits.  Trade statistics suggest that the PRC did not ship any oil to the North during the first quarter of the year.  Chinese academics openly speak of Beijing’s irritation with its long-time ally.

The cold feelings are reciprocated.  Last year North Korea’s Kim Jong-un sent an envoy to the PRC to unsuccessfully request an invitation to visit.  In December Kim had his uncle, Jang Song-taek, the North’s most intimate interlocutor with China, executed.

These circumstances suggest the possibility of a significant foreign policy shift in Beijing away from the North and toward the Republic of Korea.  Washington hopes for greater Chinese willingness to apply economic pressure on Pyongyang.  However, the PRC remains unwilling to risk instability by undermining the Kim dynasty. 

I recently visited China and held scholarly meetings amid excursions to long-missed tourist sites (such as Mao’s Mausoleum!).  I also made it to Shenyang, where relations with the North are of great interest because the city is about a two hour drive from the Yalu River.

I met one senior scholar who indicated that there was no doubt that Beijing-Pyongyang relations had changed since Kim came to power.  The two nations “have a different relationship now and it is becoming colder than ever before.” 

However, Jang’s execution had been “weighed too heavily by Western researchers,” he indicated.  In fact, economic relations had continued.  Jang’s fate was a matter of internal North Korea politics, “the result of the natural struggle for power.” 

This doesn’t mean Beijing was happy about Jang’s fate.  However, Jang’s ouster “is not the reason for the DPRK’s and China’s bad relations.” 

Rather, the principal barrier is the North’s continued development of nuclear weapons.  Kim Jong-un wants to visit China.  But it is “unimaginable for Chinese officials to invite him when he’s doing nuclear tests.  Impossible.”

In return, the North is unhappy over Beijing’s refusal to accommodate Kim as well as the end of oil shipments.  “Also, the DPRK is quite angry over the quick development of Chinese relations with South Korea.” 

This has made Pyongyang “eager to make contact with the U.S.,” an effort which so far has gone nowhere.  This is why the Kim regime “took American citizens as hostages” and invited Dennis Rodman to visit, but these tactics “are not working.” 

The North eventually “shifted the focal point of its foreign relations to Japan.”  For the same reason, though “less importantly the DPRK made contact with Russia.”

The PRC is quite interested in U.S.-DPRK relations and Washington’s view of Japan’s move toward Pyongyang.  “One of the uniform convictions for both the U.S. and China is no nuclear weapons in the DPRK,” he emphasized. 

However, in Beijing’s view the solution is not more sanctions which “everyone has been putting on the DPRK,” but revival of the Six-Party Talks.  This is where agreement between the U.S. and China breaks down. 

The PRC wants more negotiations, preceded by an American willingness to reduce tensions and Pyongyang’s perceived need for a nuclear arsenal.  The U.S. wants the North to make concessions beforehand lest the latest round fail like the many previous efforts.

This clash reflects an even deeper disagreement over competing end states.  Both Washington and Beijing oppose a nuclear North Korea.  However, the U.S., in contrast to China, would welcome a DPRK collapse, even if messy, and favor reunification with the South.

As I write in China-U.S. Focus, It isn’t impossible for American and Chinese policymakers to work through their differences.  However, it will require understanding the other party’s perspective and offering meaningful concessions to make the deal a positive for both parties.