The right wing media was aghast that Obama didn’t call to congratulate BiBi Netanyahu promptly on his re-election. Their commentators relentlessly criticize Mike Luckovich, Atlanta-Journal Constitution Obama as weak but they now tell us that the President should have meekly crawled back into Netanyahu’s good graces because our presidents come and go, but we have an unbreakable bond with Israel, right or wrong. Former G. W. Bush Press Secretray Dana Perino said he should have been the first to call our “great ally”. When Obama did call, Megyn Kelly on Fox couldn’t imagine why he “responded with an attack on the prime minister’s policies”.
Natanyahu had just bypassed Obama and gone straight to our Congress (no phone call then from BiBi, we might note) to incite an insurrection against the President’s efforts to forge an agreement with Iran. Yet Fox News, so biased against everything Obama as to not acknowledge Netanyahu’s affront, cold find only Obama rude for not acquiescing to meet with Netanyahu while here.
Netanyahu’s mission to Congress was a success. Less than a week later, out went the letter from 47 Republican senators telling Iran’s leadership to not trust the United States, its president or its Congress. A week later, Kerry’s negotiating team reported that the Iranians were indeed asking about intimations in the letter that put trust of America in doubt.
Should Barack have congratulated BiBi for setting that in motion?
To inspiring paranoia to get out the vote, Netanyahu blurted, “Right wing rule is in danger. Arab voters are streaming huge quantities to the polling stations”. Viewed as anti-ethnic by some including Obama, maybe he was just rallying his base, but it did have a whiff of an apartheid attitude.
In a pitch to the far right, Netanyahu then declared there would never be a two-state solution with the Palestinians as long as he is in office. The United States has for decades been indefatigable in its efforts to bring the two sides together only now to be told that it’s all on the ash heap because Netanyahu getting himself re-elected outweighs all else. The prime minister then set a speed record for flip-flopping when two days later he said to MSNBC’s Andrea Mitchell, “I haven’t changed my policy. I don’t want a one state solution. I want a peaceful, sustainable two-state solutions, but for that, circumstances have to change”.
Which Netanyahu are we to believe?
The diplomacy manual may say that personal animosities should not enter into affairs of state, but they do. There have been incidents. In 2011, Netanyahu lectured Obama in the Oval Office with television cameras running, telling him his expectation for a Palestinian accord based on a return to the 1967 lines was “based on illusion”. In 2012 Netanyahu openly backed Mitt Romney for president, welcoming him to Israel. During the Gaza war, he brusquely told the Obama administration “not to ever second guess me again”.
So it looked like payback when, ignoring Netanyahu’s attempt to walk back his ruling out a two-state solution, President Obama, in a public interview rather than privately, chastised Netanyahu for derailing any hope of the peace process and lectured him for his attempt to overcome the Arab vote, saying that “Israeli democracy has been premised on everybody in the country being treated equally”.
the takings
The settlements — the usurpation and even annexation of Palestinian occupied land — are viewed as illegal under international law and are the foremost impediment to any accord between Israel and the Palestinians. Netanyahu has repeatedly ignored President Obama’s requests to end their expansion.
Five years ago, Vice President Biden vowed unyielding support upon landing in Israel to be greeted with the announcement of 1,600 housing units in East Jerusalem, a diplomatic slap that had him saying the move was “precisely the kind of step that undermines the trust we need right now.” Settlements have continued and quickened in the past year. The Israeli government announced 1,500 new housing units surrounding Jerusalem in June; the appropriation in September of what was called the biggest land grab in a generation, 1,000 acres of virgin hills in the West Bank for the building of a new city; the planned construction announced in October of 1,000 new housing units in East Jerusalem, as the Israeli government pushes the Palestinians out of the city that they, too, claim as a center for their religion; and another 450 housing units in the West Bank announced just two months ago.
So captive are the pro-Israel sycophants in this country that columnist Bret Stephens at the Wall Street Journal recently called Netanyahu’s 2009 10-month settlement expansion freeze “unprecedented”, as if the theft of another people’s land was the accepted norm and its suspension therefore an act of magnanimity.
The ongoing sabotage of any hope for a two-state solution has been our reward for the annual $3 billion we send to Tel Aviv to pay for the aircraft and ordnance that Israel unleashed against Gaza and for helping pay for its Iron Dome interceptors that so quashed the Hamas missile threat that only three Israelis were killed relative to the estimated 2,300 who died in Gaza — so disproportionate a retaliation that what we call our “most important ally in the Middle East” will again be brought up before the International Criminal Court for war crimes. Good thing we’re not a signatory else we might have been charged as an accessory.
America professes a belief that a people should be free of oppression and have the right of self-determination, yet it supports a country that subjugates another people with a military occupation that is in its 48th year, disrupting the movement of Palestinians within their own land. Our hypocrisy is regularly on display at the United Nations, where we have used our Security Council veto 52 times to block resolutions other nations have aimed at Israel as reprimands for its conduct. At the end of 2012, in stark relief against 138 countries that voted “yes”, we sided with Israel that the Palestinians should not even have “nonmember observer status” at the international body.
After over a year of talks collapsed almost a year ago, the Palestinians turned to the U.N. for recognition as a state as their only perceived alternative. And the European Union is said to be pressuring for a U.N. resolution condemning the settlements. In light of Netanyahu’s statement against the two-state plan (before he said he was for it), his promise to right-wing voters that he would build more settlements, and his denigration of the 20% of Israel’s population who are Arab, Obama is said to be reassessing and reevaluating our government’s policy toward Israel. He should most certainly end the U.N. vetoes — an indefensible posture that has gone on for too long — so America’s conduct can finally match what it stands for.
With the Hillary Clinton e-mail indiscretion dominating the newscasts, MSNBC’s Andrea Mitchell recently interviewed State Department spokesperson Jen Psaki about e-mail at State. Leaving it to you to draw conclusions about our government and who they choose to represent it:
Mitchell: A million emails were sent but only 61,000 in 2011 were archived and two years later only 41,000.
Psaki: Smart [a system] is one of many tools, it’s only one tool, used to archve and keep records of our State Department records. Employees can print their records. There are a range of tools that they can use. This is a tool that is traditionally used by overseas posts, but we’ve also taken a number of steps to upgrade what we do here. Now and today Secretary Kerry’s emails are automatically archived, dozens of senior State Department employees’ emails are automatically archived, so this is an evolving process, one that we are continuing to strive to do better on and hopefully over the coming months and years we will have a better electronic system in place.
Mitchell: The 2009 upgrade and the foreign policy the manual indicated that people should no longer be printing and filing, they should be computerizing these records. Do you automatically archive your records?
Psaki: The fact is it’s about what the technology allows for, and right now there are processes that are underway in the State Department to make it more user friendly, make it possible for all employees to take steps to more easily archive their records but it’s been a process that has been ongoing and clearly the use of email, how this has been such a prevalent part of what we do in the federal government, has changed over the course of time and clearly we need to do more to keep up with that changing component.
Mitchell: Part of Hillary Clinton’s rationale for not immediately turning over her emails and for using a private system is that any email she sent to a State Department colleague would be automatically kept, but according to this IG report, that wasn’t the case.
Psaki: Well, there are many ways of keeping emails and having access to emails so I think his report was referring to one specific program that is a tool that some state dept employees use but many employees use different means of keeping track of and archiving their records, and again this is something that isn’t perfect. There are obviously steps that we need to take and are taking and we have taken over the past months and years to upgrade our capabilities here.
In her torrent of nonsense Ms Psaki speaks of “over the past months and years” and “over the coming months and years”.
Are we mistaken? Is she talking about the e-mail that the rest of the world mastered long ago or has State embarked on another Manhattan Project?
With an end-March deadline looming in the talks with Iran, the 47 Republican senators who signed the letter to Iranian leaders may have accomplished their mission of undermining President Obama’s months-long goal of reaching an agreement to suspend Iran’s uranium enrichment program. The result could be that Iran will now plunge ahead to develop a nuclear weapon.
The letter has come up in the latest negotiating sessions. “We need to know the U.S. government’s stance on this issue”, Iran’s foreign minister, Mohammad Javad Zarif, admitted.
The letter is yet another indicator that our government is coming apart. The partisan divide over the last several years that has brought Congress to a halt has now widened to a chasm, given that half the Senate has acted on its own without a vote, and has decided its role is to take over foreign policy, traditionally the preserve of the President and the State Department.
The letter followed less than a week after Israel’s Prime Minister Benjamin Netanyahu spoke to a joint session of Congress in which the members were as delirious in their bellowed adulation as teenagers keening for the Beatles at Shea. In its move to obediently follow Netanyahu’s bidding, and in defiance of the President’s, the Senate could have been mistaken for the western branch of Israel’s Knesset.
Arkansas Republican Senator Tom Cotton’s letter told Iranian leaders that anything signed by President Obama would be a “mere executive agreement…that the next president could revoke…with the stroke of a pen and future Congresses could modify…at any time”. And so, “Leaders of the Islamic Republic of Iran”, don’t trust America to keep its word.
In fact, presidents have forged agreements with other countries throughout our history that, while not having the force of treaties, are honored by successive presidents for the precise reason of building trust in our country. It would appear to be Cotton who is not trustworthy and he managed to find 46 other Republicans with equally bad judgment to join him as signatories in his irresponsible insurrection.
It seemed that no one had to wait for a general consensus to emerge. Newspapers and television news programs were generally aghast the moment the letter became known, none more so than New York’s Daily News with the photos including two (Cruz, Paul) of four signers who are running for the 2016 Republican presidential nomination.
Which makes one wonder. If the general public got it right and right from the moment they heard about it, who are these people we’ve sent to the Senate?
“My reaction to the letter was utter disbelief”, said Secretary of State John Kerry. “In my 29 years in the Senate…I never heard of anything proposed comparable to this”. It was even ridiculed by Iran’s Foreign Minister, Javad Zarif, who called it a “propaganda ploy” and lectured the senators that their…
“letter in fact undermines the credibility of thousands of such ‘mere executive agreements’ that have been or will be entered into by the U.S. with various other governments…It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy”.
..this last a dig at the senators for failure to realize that their “Advice and Consent” in the Constitution pertains to treaties, not executive foreign policy agreements. Zarif’s admonishments were followed by Iran’s Supreme Leader Ayatollah Ali Khamenei saying at a meeting, “The letter by American senators indicates the collapse of political ethics in the United States”.
Heretofore, the threat to the President’s attempt to forge a deal with Iran has been the Democratic senator from New Jersey, Robert Menendez, who has for months pressed to impose still tougher sanctions on Iran. Those at the negotiating table, five nations beside the U.S. — France, Germany, Russia, China and the United Kingdom — have implored the Senate group not to act. They would seem to know best that another layer of sanctions would simply end the talks. Iran has said as much. Menendez and others recently agreed to hold off their push for a sanctions vote to see whether or not an agreement will be consumated by a deadline coming up in late March.
But Menendez is about to be indicted on corruption charges. The brash and impatient Cotton saw an opening and lunged to make a bid for power. He is clearly a young man in a hurry. At 37, an Iraq and Afghanistan veteran, he is the youngest member of the Senate. After only a single two-year term in the House, he challenged and defeated incumbent Democrat Mark Pryor just last fall. Speaking of “mere”, he has been in the Senate only two-and-a-half months.
Cotton exhibits an overweening opinion of his own infallibility, telling us that Vice President Joe Biden “has been wrong about nearly every foreign policy and national security decision in the last forty years”. (The same Joe Biden who throughout the Iraq war urged that it should be split into its three ethnic and religious groups — Kurds, Sunnis, and Shias — whereby we might not have had an ISIS to deal with, it being a reaction of Shiite repression of Iraq’s SUnnis). The level of the freshman senator’s arrogance can be assayed in this video of him hectoring Defense Under-Secretary Brian McKeon in a Senate Armed Services Committee hearing. In it you will hear Cotton’s peculiar logic that because terrorists struck the U.S. around the world before the Guantánamo facility was set up, Guantánamo therefore has no propaganda use to jihadis and should be kept open. His ending diatribe will tell you that as a lawyer he doesn’t think much of habeas corpus or due process.
mission impossible
For Cotton, sanctions are not enough. It is clear that he and the cohort he assembled are in thrall of Netanyahu — “a prime minister who’s never seen a war he didn’t want our country to fight”, said California Rep. Jared Huffman — and have chosen to take us down Netanyahu’s path rather than Obama’s. In an interview on MSNBC’s “Morning Joe”, Cotton referred to Netanyahu twice, quoting his “no deal is better than a bad deal”.
Is it? Adopting a slogan — a slogan that is patently mistaken — reveals the depth of Cotton and crew’s thought on the issue, which is what makes the senators’ letter a stunningly troublesome act for its likely consequences.
The pact with Iran, assuming it is reached and assuming that leaks about its terms are correct, is admittedly weak. Essentially, it only freezes the level of Iran’s nuclear program for ten years — and that assumes its terms will be adhered to, a big assumption. But after months of wrangling it appears to be the best deal we can get. Cotton seems unable to grasp that we don’t get to simply bully a change in attitude and policy of an adversarial sovereign nation that trusts us as little as we them.
What is Cotton holding out for? In that “Morning Joe” interview he said, “I want complete nuclear disarmament”. The panel quietly explained that we’re not going to get that. He went on, “Iran has a very clear and simple path. They can simply disarm their nuclear weapons program and allow complete intrusive inspection”. Simple as that. Problem solved.
Expecting that nation simply to cotton to a Senate upstart named Cotton is worse than naïve. If the talks collapse as the 47 want, Iran will proceed full speed with the tenfold increase in enrichment capacity the Ayatollah Khamenei wants and which makes no sense other than for nuclear weapons development. Iran is hurting from current sanctions but has been resolute in rejecting the six-nation demands, and we therefore do not have reason to believe that still further sanctions would cause them to reverse course.
Asked would he be comfortable with a military confrontation with Iran, Cotton’s answer was, “Well, like a majority of Americans I think we have a credible threat of military force on the table”. Thus his delusion extends to believing he speaks for the American people, who are in fact most decidedly against another war in the Middle East.
Cotton would do well to learn a bit about the hazards of a fight with Iran. We covered that harrowing scenario in these two articles a long while back. It’s 77 million people sit on the oil shipping lanes of the Persian Gulf. They are poised to block those straits causing global economic havoc and are well positioned to sink our Navy’s ships. Senator, Iran is not Iraq and it’s not Afghanistan.
Politicians and the media have been preoccupied with the President’s refusal to label the terrorism threat “radical Islam” in the seeming belief that without getting the semantics just right we won’t know whom to shoot at. The enemy calls itself Islamic State, they’ve revived a barbarity not seen in centuries, and we know where they are, but a Wall Street Journaleditorial says a “war cannot be won against an enemy we refuse to describe”.
This inanity has been popping up everywhere. Across town at The New York Times, retired general and former head of the Defense Department’s intelligence branch, Michael Flynn, says “You cannot defeat an enemy that you do not admit exists”. And as this is written, Ted Cruz at CPAC is saying, “We cannot defeat radical Islamic terrorism with a president who’s unwilling to utter the words ‘radical Islamic terrorism'”. Firebrand Tom Cotton, Iraq vet become freshman Republican senator from Arkansas, tells Fox News’ Megyn Kelly, “It’s essential if you want to defeat an enemy to name what that enemy is”. To her credit, the spunky Ms Kelly pushed back a bit: “Why do the troops care whether we say that?” That brought forth the following nonsense from Cotton: “Our troops at every level need strong and confident leadership and if you’re not willing to call your enemy what it is, you’re emboldening that enemy”.
Clearly, Obama is hoping to avoid convincing the other 1.8 billion Muslims in the world that this is not a reprieve of the Crusades. By not choosing words that confirm that belief he wants to avoid the unconsidered slips of George W Bush who spoke of a “crusade” against terrorism, a word duly noted by Muslims across the world. And yet that Journal editorial chastises the Obama administration “for its refusal to use terms like ‘Muslim terrorism'”, which does indeed sweep in all of Islam worldwide.
Obama had just hosted a conference in Washington about combating terrorism that seemed an embarrassment for both left and right — dubbed a soft approach to the new barbarians. “The world faces almost daily images of murder, torture, beheadings and innocents set on fire and tonight it appears the administration believes a key to this fight is community outreach … fighting terror with a focus on social media, empowering communities and creating economic opportunity for would-be radicals”, was Ms Kelly’s summation of the conclave. Washington Post columnist Marc Thiessen says, “I have no problem…with soft power as long as it’s backed by hard power. When soft power is used without hard power, it’s just softness”. He evidently considers the 2500 missions so far flown against ISIS as softies rather than sorties.
But in attendance were number of nations where the “soft” approach to radical Islam — inclusiveness, education, jobs — was relevant. Only a month after the attack at Charlie Hebdo, Kelly and the American media were back to seeing everything through a parochial lens. Talking to an international gathering, Obama’s concerns certainly related to a Paris where the Muslim population — a consequence of the country’s colonial past — live in the outskirt banlieus, have job opportunities raging from dismal to none, and see little attempt at integration into a French society that would rather they not be there.
but enough of that
That said, as we now say, Obama’s view of “how I see it” has its serious shortcomings. For a start:
“Al Qaeda and ISIL and groups like it are desperate for legitimacy”. — President Obama
From whom? Certainly not their Arab neighbors. And anyone else is irrelevant. ISIL, as Obama calls the Islamic State, shows every sign of viewing itself as the truly legitimate Islamic model by its restoration of the fundamental laws and social structure of centuries ago as laid down by their prophet. Had he better advisors, that would be apparent to the President by virtue of ISIL declaring itself the caliphate, the structure that fundamental Islam requires to fulfill their prophecy that leads to apocalyptic end times.
“Nor should we grant these terrorists the religious legitimacy that they seek”. — President Obama
Strangely presumptuous. Even if sought, they certainly would not seek it from us, of all people. It is other Islamic movements that ISIS views as illegitimate for having devised diluted forms of the religion. The Salafis do follow Sharia law and employ its brutal practices but are more concerned with self-purification than jihad. The Wahhabis, funded throughout the Middle East by the Saudis, also follow Sharia. They routinely behead murderers and cut off the hands of thieves. But while strict when forming Saudi Arabia, they conquered lands that were already Muslim and not worthy of the death that ISIS metes out to Muslims who don’t measure up. The kingdom and its excesses are anathema to ISIS. As for the Shiites, who have adopted practices found nowhere in the Koran, they are marked for death — all 200 million of them.
“We are not at war with Islam. We are at war with people who have perverted Islam.” — President Obama.
Obama might have altered his view of legitimacy and perversion had he read an article in The Atlantic, “What ISIS Really Wants“, that came out at the same time as his Washington summit and which we are drawing from here. By Graeme Wood, a Yale lecturer and contributing editor at the magazine, it has been the subject of a lot of buzz for making the case that Islamic State is firmly rooted in fundamental Islam.
Unlike al Qaeda, which commits terrorist acts and withdraws with little gained, ISIS has taken territory, which it must, because a caliphate requires a domain in which to impose Islamic law. Whereas al Qaeda stays in hiding and has even survived in caves, ISIS is exposed by that need to control territory. “Caliphates cannot exist as underground movements, because territorial authority is a requirement: take away its command of territory, and all those oaths of allegiance are no longer binding”, Wood tells us.
The problem, as expressed to Wood by fundamentalist contacts, is that elsewhere the harsh Sharia penal code is hated because the rest of the blueprint — free housing, food, and clothing for all — has not been installed. Islamic State professes to deliver the whole package in the lands it has overcome. This extraordinary 42-minute documentary filmed inside Islamic State by Vice News reveals outcroppings of that societal structure taking form. Yet at the same time it “is committed to purifying the world by killing vast numbers of people”. Executions are believed to be part of daily life, the number of their own killed for apostasy or other violations of Sharia unknowable because, “It is a hermit kingdom; few have gone there and returned”.
“They are not religious leaders. They’re terrorists.” — President Obama
If that were all they are, why then the need to replicate Islam’s 7th Century world to follow the prophecy of Muhammad? If religion is a pretense, why the scrupulous adherence to original laws and practices that instruct their every decision, says Wood. Faithfulness to what they call “the Prophetic methodology” is everywhere, “in its press and pronouncements, and on its billboards, license plates, stationery, and coins”, he writes. “Even the foot soldiers spout this stuff constantly”, says Bernard Haykel, a leading expert on their theology at Princeton whom Wood consulted, referring to their troops quoting the Koran.
“We must never accept the premise that they put forward because it is a lie.” — President Obama.
Islam was a conquering religion. The horrifying brutality that Islamic State has brought back from centuries ago can be seen as the methods used to best effect in the violent times of their prophet, Muhammad. They are restoring the laws of the caliphate which, for example, requires individuals to amputate the hands of thieves they catch in the act. “Create a caliphate, and this law, along with a huge body of other jurisprudence, suddenly awakens”, says the article. So do slavery and crucifixion. The various factions of Islam as well as al Qaeda may forswear the use of such evils as impolitic in the present day, but as Koranic doctrine and the convention of the Prophet himself, they cannot be abjured without violating the Koran.
“We are not at war with Islam. We are at war with people who have perverted Islam.” — President Obama.
Islamic State would presumably argue the reverse, that relaxation of original Islamic practices is the perversion. “Western officials would probably do best to refrain from weighing in on matters of Islamic theological debate altogether”, says Wood.
Following the path of the Prophecy means getting Islam back on track. Thus did Abu Bakr al Baghdadi, a relatively obscure figure to the West, seize the opportunity to create the next caliphate — and proclaim himself the eighth of the twelve caliphs the Prophecy predicts — so as to resume the march to the apocalypse and end times, much like the beliefs held by fundamentalist Christians who follow the Bible’s Book of Revelations. For Islamic State, the future will see the armies of “Rome” clash in northern Syria with the armies of Islam where “We will conquer your Rome, break your crosses, and enslave your women”. That tells how deeply ISIS sees itself as resurrecting the true religion of the past. A Wall Street Journalop-ed by intelligence professionals says ISIS prefers to speak of “Rome” — its ancient adversary, the Byzantine Empire — as its stand in for the Europe of today. The Atlantic article takes note of ISIS’s jubilation over the capture of the Syrian city of Dabiq — strategically unimportant, won at great cost, and barely mentioned in the West — because Dabiq is where the Prophecy says the Islamic forces will confront and destroy “the crusader armies”, the armies of “Rome”.
The Journal article describes three geographic rings that form Islamic State’s plan for conquest, rings that radiate outward from its core in Syria and Iraq, to be augmented by Jordan, Lebanon, Israel and Palestine. The “Near Abroad” spreads outward from there, annexing Islamic countries such as Pakistan and Afghanistan. The “Far Abroad” is everywhere else. While to be a caliphate it must hold territory at the center, especially Mosul in Iraq with its one million in population, elsewhere it can inspire a patchwork of adherents who sign on for terrorist strikes, as just seen in Libya, a strategy that the authors say is “a clear attempt to provoke” countries to turn inward to deploy counter offensives that tend to their own domestic security and thereby “deter participation in the U.S.-led coalition against ISIS”. Longer term, the intent is to topple apostate regimes with destabilizing and demoralizing terror attacks meant to cause “multi-state failure in the region”.
the lure
There are those who by their nature are attracted to a structure of discipline and absolute authority. ISIS couples that with religion stripped to its purist origins and a movement to spread that message that acknowledges no boundaries. “For certain true believers — the kind who long for epic good-versus-evil battles — visions of apocalyptic bloodbaths fulfill a deep psychological need”, writes Wood.
Still, there is the question of how many of them, raised in the mild sensibilities of today, can easily throw the switch to savagery and carry out orders to behead, immolate, crucify or enslave. Those who are untroubled by such assignments or who even revel in them are clearly psychotic; perhaps there is some utility in drawing them out of the civilized countries of the West into one place for extermination by F-16s.
But as for the rest, how long will they last, is our question. Graeme Wood mentions that “when the Islamic State began enslaving people, even some of its supporters balked” and he writes of a German jihadist who, when asked if others were returning to Europe to carry out attacks, believed them not to be soldiers but dropouts. “No one has tried harder to implement strict Sharia by violence. This is what it looks like”, Wood writes. He ends on a hopeful note that word will leak out that Islamic State is a house of horrors — those disaffected returnees will be key to spreading that word, we would add — the movement will cease to attract, and will ultimately implode.
But that’s a long way off and in the interim we have a president who is is in error by not recognizing that this is not just a terrorist sect, that there is nothing quite so enduring as religious fanaticism, which fuels Islamic State’s desire first to conquer and exterminate the apostates and corrupt regimes of Islam and then to challenge the West in a clash of civilizations. The question is how far they will get.
Should the government be barred from paying subsidies to persons buying health insurance because seven words in the 602-page Affordable Care Act fail to mention federal exchanges? Or do other sections of the statute show that phrase to be only a lapse in wording?
So argued the briefs before the Supreme Court in King v. Burwell, the long-awaited case that could cripple Obamacare that was heard March 4th.
But as something of a surprise, Justice Anthony Kennedy, the crucial swing vote on the otherwise ideologically polarized court, had something else on his mind. King may only be a case of statutory interpretation, but wouldn’t there be constitutional issues if the Court ruled that subsidies were only available to residents of a state that had set up its own exchange, Kennedy asked? Doesn’t that effectively and unconstitutionally coerce the states to fall in line, because accepting so severe a penalty on its citizens would not be a “rational choice for a state to make”. And how to justify denying them insurance subsidies that other Americans would get? “There is a serious constitutional problem here if we adopt your position,” Kennedy said to Michael Carvin, representing the plaintiffs.
If that gave hope to those who want Obamacare to go forward undisturbed, it needs to be mentioned that Kennedy also challenged Solicitor General Donald Verrilli, arguing for the administration.
the fine print
For states unwilling to mount their own exchange — 34 of them, as it has turned out — the Affordable Care Act (ACA) provides for the federal government to establish and manage an exchange in their behalf. The text then says that subsidies are to be granted to low-income people who sign up for insurance “through an Exchange established by the State” — the notorious seven words. Missing is any explicit wording that says the federal government is also authorized to pay subsidies to persons who sign up on the federally run exchanges
A drafting error, say those who insist the mission is the same no matter who administers the exchanges. The obvious intent is for all Americans to be treated equally.
A decision that prohibits the federal government from issuing subsidies to those who signed up on the exchanges it runs would sink Obamacare, which is precisely the objective of the group that searched the Act for an Achilles heel, found those seven words, and sued the government. If denied those subsidies, an estimated seven million could no longer afford the insurance, with only the sickest paying no matter the cost, meaning the insurers will need to spiral premium costs upward to pay for the care of these most expensive policy holders, and that will drive still more people into the uninsured column. This is the downward “death spiral” that the petitioners hope will kill Obamacare.
reaching for it
It was highly unusual and suspect that the Supreme Court reached for King v. Burwell, in which the 4th Circuit Court of Appeals in Virginia had approved the federal payment of subsidies. There had been no split rulings at the circuit level to cause the highest court to step in.
There had been. In a second challenge to the federal subsidies, Halbig v. Burwell, a three-judge panel of the Washington D.C. Circuit Court of Appeals had reached the opposite decision, ruling that the federal-run exchanges could not pay subsidies because of the seven words. But that court had vacated its own ruling, deciding that the case should be heard en banc, that is, by all the judges of that court.
That left King as the only ruling out there when the Supreme Court jumped the line, taking King for itself and thus aborting the D.C. court’s review of Halbig.
What was that about? Were the conservative justices wary that seven of D.C.’s eleven judges were appointed by Democratic presidents and might be disposed to rule in favor of the subsidies? If both cases were decided for the administration, the Supreme Court would have no justification to intervene.
This has happened before. It is a reminder of a similar moment when the justices reached well beyond a complaint about a corporate-funded political movie brought by the conservative advocacy organization Citizens United in order to advance a political agenda of unlimited campaign spending by corporations and unions. It’s hard not to suspect that the conservative justices again reached for a case because they wanted another crack at Obamacare.
the challenge
The King brief relies on the seven words in isolation, in proving that they were deliberate, that the federal government was to be denied issuing subsidies, and that adhering to those words does not render other sections of the act “absurd”. The intent was to force states to set up their own exchanges.
The brief uses as evidence newspaper articles such as The New York Times saying in 2012 that “lawmakers assumed that every state would set up its own exchange” because “political reality” would deter them from turning down “billions” of free federal dollars. The brief cites Jonathan Gruber, an MIT professor and heavily paid consultant involved in crafting the healthcare bill, who had popped up in videos calling Americans “stupid” for not figuring out that the young and healthy insurance buyers would be paying for the old and sick, but relative to this case had said,
“[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.… I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”
Plaintiffs argue that it is not exceptional for the government to bestow its largesse only in return for states complying with a federal requirement; one need look no further than Medicaid within the Affordable Care Act itself. The states get 100% funding to cover new applicants for three years, but only if they expand the number of recipients.
Gruber notwithstanding, King‘s contention that Congress deliberately attempted to coerce the states finds no corroboration from anyone in Congress. If denying subsidies to any state that failed to set up its own exchange had been the expressed intent, would we not have heard of furious argument in Congress as the bill was formed and debated? Yet there was none. Jeffrey Toobin at the New Yorker says there were 53 meetings of the Senate Finance Committee, seven days of committee debate on amendments, and 25 consecutive days spent by the full Senate on the bill — “the second-longest session ever on a single piece of legislation” — with “similar marathons in the House”. Yet in all those deliberations there was no uproar because no one proposed that the subsidies were to be available only on the state exchanges.
the defense
The government argues that, given the Court’s own prior pronouncements, the full text of a statute must be taken into consideration — so-called “textualism”. “When we look at a provision of law, we look at the entire provision of the law,” said Justice Antonin Scalia just two months ago. “We try to make sense of the law as a whole”. Justice Kennedy in a 2006 opinion had said that a particular provision of a law being reviewed was persuasive only “without the illumination of the rest of the statute”. Briefs cite these quotes as well as Scalia’s emphasis on textualism in books he had authored. “The interpretation of a law should do “least violence to the text”, Scalia has written. In a post on SCOTUSblog, Yale Law School Professor Abbe Gluck said the “textualists” on the Court like Scalia “have spent three decades convincing judges of all political stripes” to adopt holistic readings of the law, giving priority to the full text. Says one brief, “Textualism demands that judges take seriously the statutory design (as gathered from the text) and avoid interpretations that would render the statute unworkable”.
The government points to several places in the law that contradict the seven words with wording that assumes the federal government will be paying subsidies. Examples:
The same section that purportedly limits subsidies to states that create their own exchanges calls for both state and government exchanges to provide the IRS with the information it needs to administer the subsidies (they take the form of tax credits). Why would the government exchanges be required to provide that information if none of its customers are eligible for such credits in the first place?
The government contends that an exchange it creates for a state is “established by the state”, with the government acting in its behalf. Section 1321 prescribes that Health and Human Services “shall…establish and operate such Exchange within the State”. That wording treats the federal exchanges not as federal but as surrogate state exchanges.
Other sections concerning state exchanges make no separate mention of parallel federal exchanges, which means that the Act considers them to be one and the same — and that subsidies are therefore intended for both.
Section 1312(f) stipulates that only a person who “resides in the State that established the Exchange” can purchase on an exchange. If a federal exchange established for a state is not considered a state exchange, then it can have no customers, says this rule. The clear intention is that all such exchanges are considered by the Act as state exchanges and therefore eligible for subsidies.
Three times in the Act, “Exchange” is defined as being a state exchange, the point being that there is no federal exchange, only subsidy-eligible state exchanges run by the federal government.
It is the IRS that promulgated the “rule” that the federal exchange clients would be eligible for subsidies. It is traditional that the interpretation by the agency of government that is charged with administering a law is given deference — the “Chevron” principle, named for an earlier precedent. The petitioners argue that the IRS does not have the authority to make so sweeping a revision of so major a statute — a valid point, but seemingly lost in the cascade of other arguments by both sides.
tricking the states
The seven words occur in a section of the Act that spells out — in language familiar to do-it-yourself 1040 filers such as “the amount equal to the lesser of” and “the excess (if any) of” — the rules for who is entitled to a subsidy and how much. Briefs for the government raise a twofold question: first, why would a restriction of such enormity be buried in the formulas of an ancillary, nuts-and-bolts sub-section; and second, why would Congress knowingly build in a provision that has the power to sabotage its own law?
One of the briefs in support of the government was filed by 23 state attorneys from a mix of red and blue states that says the challengers’ position would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election”. The brief assumes that each of the 34 states that elected not to set up an exchange must have deliberated their options, so would they all have decided to let the government run their exchange had they realized that subsidies would be denied their people? “Nothing in the ACA provided clear notice of that risk”, which is a principle of cooperative federalism. “Retroactively imposing such a new condition now would upend the bargain the states thought they had struck”, says the brief.
outcome
But one is left to wonder whether the justices actually read the briefs, some of their questions being seemingly superficial. And do they consider the real world consequences of their actions, given that they are personally utterly unaffected. Samuel Alito contended in the hearing that, if the subsidies were denied, “going forward there would be no harm”.
Do any of them realize that, were they to lock onto seven words rather than the rest of the text, the disruption of millions losing their insurance and being wrenched about yet again would place the legitimacy of the Court at risk? Chief Justice Roberts was almost completely silent in the hearing, perhaps wondering what would be history’s verdict for his Court were it to decide against the government.
Finally, Jeffery Toobin’s fitting observation: “The great Supreme Court cases turn on the majestic ambiguities embedded in the Constitution…. Instead of grandeur, there is a smallness about this lawsuit in every way except in the stakes riding on its outcome”.
With King v. Burwell threatening to disrupt millions of Obamacare insurance buyers, another case the Supreme Court heard just two days earlier was hardly noticed. The Court on March 2nd heard oral arguments as to whether or not state legislatures can overturn independent redistricting commissions (IRCs) created by public ballot.
In Arizona State Legislature v. Arizona Independent Redistricting Commission, that state’s legislature has sued to invalidate the IRC voted into being by public referendum in 2000 and to take back the job for itself.
why this matters
After each decennial census, changes in a state’s population may add or subtract the number of representatives the state may send to Congress in Washington. That requires redrawing the electoral districts so that — in principle at least — each contains approximately the same number of voters. Even if the count is unchanged, population shifts may require redrawing, and in the absence of any reason the party controlling the legislature will eagerly take advantage of the opportunity anyway. Districts will be twisted into contorted shapes that place majorities of their voters in enough districts to guarantee victory in the next election, while packing as many voters of the opposing party into as few as districts as possible to minimize the number of representatives they can send to Washington. It’s a very old practice dubbed “gerrymandering” that we’ve covered more than once, as in “Redrawing the Map to Rig Elections“. It has resulted in hundreds of districts around the country that have been made very safe for the party in power and insurmountable by the opposition.
To eliminate the practice, a few states have created bi-partisan commissions to redraw districts more equitably so as to make them more competitive. This page has proposed that software can do the job completely agnostically.
Arguing for the legislature was the skilled Paul Clement, who argued against the Affordable Care Act’s right to expand Medicaid in the states and the mandate that individuals must buy insurance, as well as on behalf of Hobby Lobby’s claim that a corporation has religious rights. His brief relies principally on Article I Section 4 of the Constitution which reads, in part, that rules of elections:
“…shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”
Clement says that the public’s taking away that prerogative from the state’s legislature is unconstitutional. There was some arguing on the IRC side that the public, too, is a legislature when it votes by referendum, but it’s doubtful that will get much traction. The three sections of Article I that precede Section 4 lay out precisely that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”. No mention of a legislature of the people.
But nowhere in the Constitution is there text about the drawing of electoral districts and who should have the right to do so. Section 4 stated more fully says:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;…”
This somehow includes drawing electoral districts, given the fashion of ascribing prescriptions to the vague Constitution that simply aren’t there, and once having done so, pretending ever after that they are there by citing precedent cases of earlier imaginings that they are there. Thus, while not a word in that clause or elsewhere about electoral districts, nevertheless Arizona can bring a case declaring a constitutional right.
Therefore, if the Court rules in favor of the Arizona legislature, it will be yet another example of its writing new law and handing political parties the ability to subvert the democratic process.
Permissive redistricting is particularly egregious because, when the majority party is allowed to rejigger districts after a census, it stacks the deck for ten years, irrespective of whether the opposing party might win the majority in as little as two years into that decade.
The Court’s deciding for the Arizona legislature could impact the nine states with redistricting commissions. In some cases the commissions are creatures of the state legislatures, which appoint its members and hand off the job to commissions. In others, there are hybrid formulations of who gets to pick commission members. California is the biggest state with an IRC, and is the most independent of the state legislature. The Supreme Court deciding that the Constitution gives the power of drawing the electoral map solely to state legislatures could reverse the slow progression toward impartiality.
The Supreme Court has already struck down the Voting Rights Act’s provision that certain states, mostly southern, that have exhibited a history of discrimination need apply to the Justice Department for approval of changes they wish to make in their voting laws. In the current term the Court will also decide on a case heard toward the end of last year that was brought against Alabama for packing a district with black voters to bleach surrounding districts white. As with Arizona, if they decide for Alabama, it says that there is really no check on gerrymandering. And will the Court also be signaling that legislatures can do as they please with other laws, such as the spate that were passed before last year’s elections that were intended by Republicans to block non-existent voter fraud and otherwise impede voting by Democratic blocs such as blacks, Latinos and college students? On several fronts the right to vote is under attack and what we pretend to be a democracy is in fact ridden with sham.
Yesterday, some friends who get together after tennis were shooting the breeze, which sometimes gets political and has been known to become a bit heated. We got onto the issue of exaggeration of the closeness to combat, recently in the news, first Brian Williams and later accusations against Bill O’Reilly. I shared an insight that this related to “stolen valor,” a specific term meaning a 2005 law (ruled unconstitutional) that would have made it a federal crime to claim possession of a given medal of honor for combat service in wartime.
My antagonist, was a Rush Limbaugh fan I’ll call Dave. We both were active in getting our city to triple the size of the tennis center that we now enjoy most every morning, and have collaborated on such recreational issues afterwards. I rib him about his reliance on Rush, and once, when I agreed with the celebrity newsman, I told Dave about it and then when he thought I was being converted, I said, “….after his riff about something that was not really political right before he went to commercial, he had to make a connection, to leave the audience with an out of the blue ‘…And this is why we have to get rid of that guy occupying the oval office.'”
But, he being a retired aeronautical engineer with an interest in the world beyond his partisan indulgences, we have a respectful “tennis friendship.” It turns out he hadn’t even heard about the O’Reilly accusations, but he did know about the Veterns Administration chief Robert MacDonald’s “lie” about serving in special services. Dave didn’t care too much about the circumstances, that it was his echoing the words of a homeless veteran, not a prepared public statement. That it was his way of expanding on the common experiences of one whose life had not gone well. But Dave knew all he had to know about that incident, which is that MacDonald was a Obama appointee.
Well, I let it go. I’m writing this essay not to trash conservatives, but to share how it’s possible to connect. As we were talking about the newsman’s purported exaggerations, something came to me, which is why a simple misstatement about the degree of intensity of one’s military experience can be so meaningful. It turned out that Dave knew the incident well — the example of my “stolen valor” connection — including the man’s name, Admiral Jeremy Boorda
It was all about an attachment to a ribbon that military persons wear on their vests on formal occasions, each one as evidence of service, courage and awards of acknowledgement thereof. I’ll quote from the Wikipedia article linked above to describe it:
The Navy “V” device is a miniature bronze letter V worn on certain medals and service ribbons, indicating valor in combat. Photographs showed him wearing them in the 1980s, but Boorda had stopped wearing the Vs years before, when he was informed that his experience in Vietnam did not qualify him to wear them. Reports at the time of Boorda’s suicide indicated that his wearing of the “V” devices had not been intentional deception on his part, but had been an unintentional mistake that resulted from following verbal instructions delivered to commanders by Admiral Zumwalt when he was Chief of Naval Operations, as well as conflicting interpretations of Navy award regulations.
Yes, “at the time of his suicide”. This man who was the first to have risen from the lowest enlisted ranks to be the highest ranking naval officer was so affected by the accusation that it, at the very least, contributed to his taking of his own life.
Dave and I had a little bit of a different interpretation of his action, about how clear was Boorda’s breach, whether it was a misunderstanding or a brazen case of stolen valor. When I made the former argument, he responded with “it was bad enough that he killed himself”. Meaning, if he had a reasonable argument, he would never have done this. But we went on. He described a story told by his older brother who was waiting at the shores of the Rhine to invade Germany, and the troops were firing across the river. His brother told him how how ranking officers from H.Q. were rushing in, grabbing a rife from a grunt, just to get off a few shots, so they will earn that combat V on their ribbons.
A few hours later when I checked my emails, there was one from Dave, “
Al,
We were both right…sorta. I had the name right but Navy is correct. Boorda was chief of Naval Operations. Wikipedia has a good writeup. The medal in question is called the “combat V” which is added to other ribbons but must be officially awarded. Adm. Zumwalt [his boss] had told him to wear them.
I responded with this:
Just read the Wikipedia article. Perhaps this is something we can both agree on — that it was a profound human tragedy.
Which Dave concluded with:
Agree. Particularly because he came up through the ranks to reach the highest level in the Navy.
• • •
I am writing this for one reason, which is that too often our media takes sides in our partisan divide. It becomes a challenge, even if the attempt is made to avoid being attributed to one side or the other. Yet, there are events that have been so distorted that can be understood as touching our common humanity. In this case, the conversation caused Dave to learn more about Admiral Boorda, to see how the extremes of vilification can tap into insecurities that can cause, for some, an unbearable pain.
Partisan identification has a value, it provides cohesion to perspectives that their adherents espouse. While it’s worse than some utopia of universal agreement, it’s a hell of a lot worse than a commonality based on fear of dissent. In the clash of ideas of a free society, anger can escalate — and the vulnerable individuals behind the labels are lost. Sharing our memory of the tragedy of Admiral Jeremy Boorda reminded two opposing political partisans of the humanity that we all share.
I was reading the live blogging from the Wall Street Journal this morning when the subject of “standing” was raised. First, let me give the most common understanding of what this qualification to bring a suit means from the Wikipedia article, which also happens to provide the expanded meaning of the term. (This detail was debated among some friends this morning).
The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the “something to lose” doctrine, in which the party has standing because they directly will be harmed by the conditions for which they are asking the court for relief.
It was this specific element that was being discussed when Alito said this from the Wall Street Journal at 8:46:
Justice Alito strongly suggested that the Supreme Court was no place for the issue of standing to be hashed out for the first time. “You want us to have a trial on whether any of these plaintiffs have standing”, he asked with some derision. (The Supreme Court doesn’t hold trials.)
This happened to strike me, first, because I personally find Alito to be a stain on this court for his wanton manipulation of the traditions of the august body in several cases that I will describe. Both have to do with challenging the dominant religious beliefs of this country. This comment, that the Supreme Court does not address the standing of challengers (plaintiffs) is willfully ignorant of another case, where a Supreme Court decision on lack of standing of Mike Newdow caused his case to be dismissed, without ever considering the merits:
While all eight justices who participated in the case voted to overturn a 2003 federal appeals court decision that would have barred the phrase (under God) in public schools as a violation of the constitutional ban on state-sponsored religion, a majority of five did so exclusively on procedural grounds, ruling that the atheist who brought the case, Michael A. Newdow, lacked legal standing to sue.
While Alito was not on the court then, his obliviousness to this landmark case shows the level of his legal acumen, or more likely that he has a selective understanding, knowing what games he can play to serve his anti-secular goals for this country. One example is a three decade long legal saga that should have ended when the Supreme Court refused to take an appeal that had determined that a 42 foot high cross in San Diego on government property must be removed, this in spite of numerous sham transfers of ownership.
His ploy has worked. Since our pusillanimous congress and president don’t have the courage to let the constitutional prohibition of a national religion take its course. He did this by writing a denial of certiorari statement in 2012 that was treated by the public as being from the entire court, which it was not. I wrote this extensive article on this event. (No other commentary on this one, so I guess my view prevails!!!)
The cross still stands, and with every year that goes by, this constitutional breach becomes a “fact on the ground” like the settlements in occupied Palestine. This is Samuel Alito, who is a living realization of the fear that was expressed over JFK that he would be an agent of the Pope. Kennedy transcended this, but Samuel Alito seems to answer to a power higher than our Constitution in many areas of jurisprudence, especially that of our secular Constitution.
There is no doubt that he will cast his lot with ending the Affordable Care Act on a technicality, that a random sentence overrides the entire premise of a complex law. His delaying the decision on the Soledad Cross will only make enforcing the constitutional requirement to remove it that much more divisive. He may have made it so great, that this example of “Justice Delayed is Justice Denied” will take on a new meaning. No longer an admonition but a prescription to beat the spirit of any law, and principle of justice.
The same section that purportedly limits subsidies to states that create their own exchanges calls for both state and government exchanges to provide the IRS with the information it needs to administer the subsidies (they take the form of tax credits). Why would the government exchanges be required to provide that information if none of its customers are eligible for such credits in the first place?