"It gets late early around here." - Yogi Berra
July 30, 2014
POLITICS: Obama Peddles Impeachment Conspiracy Theories To Raise Money
The definition of a conspiracy theory is that it requires belief in a secret agreement among other people in the absence of of any evidence of such an agreement. President Obama and the Democratic Party are presently peddling a conspiracy theory that Republicans have a secret plan to impeach him from office. Their reason for selling this theory is nakedly self-interested: to raise money from gullible donors and drive turnout from excitable but poorly informed voters who may be unhappy with the President's job performance but remain personally loyal to him.
Democrats, of course, are just cynically exploiting anything that can help them gain partisan advantage. What is much more disappointing is the media playing along with this agitprop campaign, in particular by hounding Republican candidates across the country to discuss impeachment and then turning their answers into "Republicans talking about impeachment" stories even if they strenuously deny that they're interested in such a thing (or, as commonly happens, if they duck the question or offer vague answers designed to avoid alienating voters who might very much like to see the President impeached or at least see something tried).
Anyone who was not born yesterday knows full well that this is a conspiracy theory - that John Boehner and House leadership have zero interest in a futile and politically counterproductive effort to impeach an unpopular lame duck President; that they have no secret plan to do so; and that there is zero chance that the House Judiciary Committee, which has jurisdiction over Articles of Impeachment, will ever vote out such Articles against President Obama. Nor, among the many outside groups that have become major players in Republican primaries and have been busily engaged in many conservative efforts to pressure Capitol Hill on other issues, is there any organized effort to get Boehner and House leadership to take any other position. Reporters would never ask questions to Democratic candidates, on zero evidence, about something with so little chance of ever happening; they should not abet this conspiracy theory by continuing to cover it as if it was anything but a conspiracy theory.
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The Democrats' Love Affair With Impeachment
The Democrats' coordinated "please, please, please impeach me" campaign is impossible to ignore, and it is as pungently desperate as it is transparent; successful Presidents do not spend their sixth year in office trying to goad Congress into bringing impeachment proceedings. You'll recall that Clinton fought furiously against impeachment, and even timed U.S. bombing campaigns in Afghanistan and Iraq to coincide with his grand jury testimony and the impeachment vote, respectively; only in hindsight did Democrats treat the Clinton impeachment as a political gift. But Obama is begging for it. As Byron York wrote on Saturday:
In the past 48 hours, first lady Michelle Obama, White House senior adviser Dan Pfeiffer, White House spokesman Josh Earnest, House Minority Leader Nancy Pelosi, the Democratic Congressional Campaign Committee, and others have raised the specter of an Obama impeachment.
David A. Graham at The Atlantic walks through twenty-one impeachment-themed fundraising emails from the Democrats in a single week. The Washington Post notes the point of these emails, to sucker credulous Democratic donors into giving money the Democrats were not able to raise when they were talking about policy:
The Democrats’ congressional campaign arm pulled in $2.1 million in online donations over the weekend — the best four-day haul of the current election cycle — largely propelled by fundraising pitches tied to speculation that House Republicans could pursue the impeachment of President Obama...The surge in donations came after White House senior adviser Dan Pfeiffer said at a Christian Science Monitor breakfast Friday that the Obama administration is taking the impeachment chatter seriously...[Sarah] Palin’s first impeachment call, published on Breitbart.com on July 8, resulted in $500,000 in DCCC fundraising in the 24 hours after it appeared.
In spite of the obvious White House involvement in directing this campaign, Earnest later portrayed - laughably - statements by himself, Pfieffer, the First Lady and other Democrats, all used in DCCC's campaign emails as something independent that the White House could not control:
White House press secretary Josh Earnest on Tuesday called repeatedly for Republicans to stop talking about impeaching President Barack Obama - but said he wouldn't do the same for Democrats who’ve been fundraising off it nonstop in recent days.
The campaign extends to the Administration's media flacks. As Nate Silver notes, a quantitative analysis of MSNBC and Fox News programming shows that Obama-supporting MSNBC is five times more likely to talk about impeachment than Fox: "The scoreboard so far in July: Fox News has 95 mentions of impeachment, and MSNBC 448. That works out to about 2.7 mentions per hour of original programming on MSNBC, or once every 22 minutes." By contrast, in 2006, "Republicans tried to rally their base around purported Democratic threats to impeach President George W. Bush. Back then, Fox News was more likely to invoke the specter of impeachment, with 374 mentions of the term from Jan. 1 to July 29, 2006, compared with MSNBC’s 206."
Silver isn't the only liberal journalist to see this for what it is - Ron Fournier, who has been increasingly critical of the Administration in recent months, blasted the campaign as a cynical affront to Obama's one-time politics of "hope and change": "Welcome, folks, to the Impeachment Telethon, where straw men and stalking horses are paraded across the Washington stage while political parties beg for your money." Ezra Klein admits that "Boehner is suing Obama so he doesn’t have to impeach him." Yet a few die-hard flacks pretend, at least, to believe it will happen, like Eric Boehlert and Oliver Willis of Media Matters. (I offered Willis a $500 bet on Twitter that no Articles of Impeachment would ever pass the House Judiciary Committee; he countered with an offer to bet a hamburger, so we're on.)
Impeachment: Often Threatened But Rarely Used
One of the lessons of presidential history is that it's fairly easy to construct a theory of why a President should be impeached, and most presidents face at least some vague threats of impeachment, whether in newspaper editorials, loose talk amongst their critics on the campaign trail, or the introduction of proposed articles of impeachment in the House. George Washington was the first, in the controversy that erupted over the Jay Treaty in his seventh year in office:
As the public tempest had swelled, some wanted Washington impeached. Cartoons showed the President being marched to a guillotine. Even in the President's beloved Virginia, Revolutionary veterans raised glasses and cried, "A speedy Death to General Washington!"...Using old forgeries, several columnists insisted that Washington had been secretly bribed during the war by British agents.
Lincoln, too, had Congressional opponents who met to discuss impeaching him. Impeachment bills or hearings were attempted against Presidents Grant, Hoover and Truman. In more recent years, impeachment threats have become routine ways for partisans to communicate the depth of their mistrust of a president. John Conyers, who would go on to be Chair of the House Judiciary Committee from 2007-2010 and remains its ranking Democrat, was the early leader among Democrats calling for Ronald Reagan's impeachment back in 1983:
March 16, 1983: Washington Post: "Rep. John Conyers (D-Mich.) told the crowd that President Reagan should be impeached...for failing to deal with joblessness. 'Why don't we impeach Reagan for incompetence,' Conyers said, drawing loud applause from the crowd. Conyers said later that if enough people demand Reagan's impeachment, he would lead the effort in Congress."
In late 1987, the House voted to support Conyers' motion to conduct an impeachment investigation, but it went nowhere. Texas Democrat Henry Gonzalez also introduced bills with articles of impeachment against Reagan in 1983 over the Grenada invasion and 1987 over Iran-Contra; neither went anywhere either. Gonzalez introduced two sets of impeachment bills in 1991 against George H.W. Bush over the Gulf War, again to no effect. And in mid-2008, late in the presidency of George W. Bush, Dennis Kucinich introduced two bills attempting to impeach Bush, over the Iraq War and a fusillade of other foreign policy and national security disputes, presidential signing statements, complaints about Hurricane Katrina and the 2004 elections, and "Systematically Undermining Efforts to Address Global Climate Change"; Kucinich's second bill attracted 11 co-sponsors, one of whom is now in the Senate:
Lee, Barbara [D-CA9]
(Katherine Miller at BuzzFeed notes a hilarious example of Sheila Jackson Lee, one of those co-sponsors, now claiming that Democrats never tried to impeach Bush)
A 2006 poll found that 49% of Democratic voters wanted Bush impeached. In 2007, Kucinich had attracted 26 co-sponsors for his proposals to impeach Vice President Cheney, including Baldwin and multiple members of the Judiciary Committee and Maxine Waters, the Chair of the House Banking Committee. In 2004, Congressman Charles Rangel (later the Chairman of Ways and Means) introduced a bill to impeach Defense Secretary Don Rumsfeld, and in July 2007, Jay Inslee introduced a bill that would attract some 31 co-sponsors calling for an impeachment investigation of Attorney General Alberto Gonzales.
But most of those are not realistic threats that would actually result in the concrete steps required to turn idle talk and political stunts into a serious effort: an impeachment investigation, hearings and a vote in the House Judiciary Committee, followed by a vote in the full House. That process would look like the timeline of the case against Clinton:
September 9, 1998: The Starr Report on the Lewinsky matter is submitted to Congress.
This is where all of this breaks down. Yes, it is likely that somebody sooner or later will introduce at least a symbolic piece of legislation calling for Obama's impeachment. And yes, many Republican voters, frustrated that Obama seems to face no consequences for a variety of inept and lawless actions in office, will tell pollsters they'd like to see him impeached. And yes, Republican candidates want to avoid offending those voters, and a few have popped off about impeachment. But none of this makes it at all realistic to run around pretending that there is any likelihood at all that a serious effort would be made, and supported by Speaker Boehner, and Judicary Chair Bob Goodlatte, and others in House Republican leadership, to bring a bill to the Judiciary Committee, let alone the House floor.
The DCCC came out with a list of Republican House members who have mentioned the word, and it bears close reading. Some, like Steve Stockman and Michele Bachmann, present no threat to impeach Obama in 2015 because they are not running for re-election and will no longer be in Congress. Some are long-shot House candidates. Some are simply refusing to completely and categorically rule out the issue for all time, which of course is what any responsible legislator would do when an official has two and a half more years in office and nobody knows what else we might learn someday. Many are like this statement from Georgia Congressman and Senate candidate Jack Kingston, who is clearly just trying to sympathize with voter frustrations without committing to anything: "Not a day goes by when people don’t talk to us about impeachment. I don't know what rises to that level yet, but I know that there’s a mounting frustration that a lot of people are getting to and I think Congress is going to start looking at it very seriously."
For contrast, there are all sorts of things that get talked about on the Left - bandied by leading policymakers up to key party leaders, or supported by big chunks of the party's base, or proposed in op-ed pages - that nobody ever thinks to quiz Democratic candidates on, because journalists apply a much higher level of skepticism than they do when dealing with Republicans. Just to pick a few examples:
-Should we reinstate the draft? (Democrats proposed this in 2004 mainly so they could run on the claim that Bush wanted it, even though Bush's Defense Secretary was the principal legislative architect of the all-volunteer military. It's been introduced again.)
You get the idea.
What Impeachment Is and Is Not
A little history also explains why the case for impeaching Obama - while in some places supported by perfectly reasonable arguments about his disregard for the law and for the responsibilities of his office - is not the sort of case that should lead the House to impeach a President, especially not in the teeth of public opposition and certain defeat in the Senate.
The Constitution establishes, in several places, the procedures for the House impeaching, and then the Senate trying and removing from office, federal executive officials and federal judges, but it is famously vague on the grounds for impeachment, stating only that the President, Vice President and other officers "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." (Art II Sec. 4) Historically, given that charges meeting the traditional definition of treason are vanishingly rare (one federal judge was removed in 1862 for supporting the Confederacy), the only thing on which most everyone agrees is that public officials can and should be impeached for taking bribes. If you look at the 19 impeachments brought before the Senate, you will find a number of cases that are more or less official corruption cases.
Of the ten impeachment cases brought since 1912, nine were against judges (the other being Clinton); they include (1) four judges removed for one sort of corruption or other (one of whom, Alcee Hastings, was promptly elected to the House as a Democrat and is still there, now the senior member of the Florida House Democratic delegation; the last impeachment, in 2010, involved a judge who concealed, among other things, gifts he solicited from lawyers practicing before him), (2) one judge removed for perjury in connection with interfering in a drug prosection and another for tax evasion, and (3) two judges who resigned rather than face trial, one for various abuses of power and the other for sexual assault and a subsequent cover-up.
The Founding Fathers viewed impeachment as a necessary but also potentially dangerous remedy, and much of the Constitutional debate was over the division of responsibility between the House bringing the charges and the Senate trying them - and as played out in the impeachments of Andrew Johnson and Bill Clinton, this process worked its intended goal of ensuring that a President could be impeached only if there was broad support for doing so, as reflected by the need for a two-thirds vote of Senators (support that must cross party and regional lines). By contrast, Richard Nixon's resignation came about when it was made clear to him by Republican Senate leaders that an impeachment would have strong bipartisan support in the Senate.
The grounds for impeachment were always less clear, but the Founding Fathers tended to view impeachment mainly as a remedy for official misdconduct. As Hamilton wrote in Federalist No. 65:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
As he continued in Federalist No. 66:
...An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive.
The Johnson, Nixon and Clinton impeachments cover the spectrum in this regard. Johnson's stands as an example of a case for impeachment that was long on politics but short on crime: he was accused mainly of ignoring Congressional restrictions on his power to remove the Secretary of War from office, restrictions he viewed (and that most subsequent observers view) as an unconstitutional encroachment on Presidential power. So, despite Johnson's unpopularity and the unpopularity of his lax Reconstruction policies, he was acquitted. Clinton's, by contrast, failed in large part because it was long on crime but short on "injuries done immediately to the society itself" - there was and is little basis to deny that the evidence against Clinton would be sufficient to convict a private citizen of the federal felonies of perjury and obstruction of justice in civil litigation, but while the litigation in question arose out of his tenure as Governor of Arkansas and the perjury related to a sexual relationship in the workplace with a subordinate White House employee, much of the public viewed the whole thing as too tenuously related to Clinton's conduct of office to justify removing a man whose policies were popular during a time of prosperity and relative peace. Nixon, by contrast, faced a case that covered both bases: involvement in covering up a burglary of political opponents and other official abuses of power such as the use of the IRS to audit political enemies.
Setting aside the fact that House leadership very clearly has no interest in doing anything of the sort, the problem with most of the theories for why Obama could be impeached is that they amount to disputes over the separation of powers and the President's failure to adequately enforce the laws. These are serious issues, and many Presidents in the past have (often rightly) lost either fights with Congress, battles in the courts, or political standing with the voters for being on the wrong sides of them. But they are mainly in the same category of offenses as Andrew Johnson's, and the proper weapons with which to combat them are political and in some cases legal, not removal from office. Boehner's choice to sue Obama over the failure to enforce Obamacare's employer mandate, for example, or Ted Cruz's effort to defund Obamacare, or Rick Perry calling out the Texas National Guard to pick up the slack where Obama has failed at the border, or Congressional investigations of Benghazi - these are all traditional remedies for these sorts of offenses. Going the next step to impeachment is far less likely to lead to any positive policy ground gained for conservatives, and everybody on Capitol Hill knows that - you accomplish nothing simply by impeaching in the House and losing in the Senate, and you can't win in the Senate without a double-digit number of Democratic votes, which will be forthcoming only if you unearth something that looks to a significant number of independent and Democratic voters more like Watergate. And if Congressional Republicans, who clearly do not want to engage in a losing battle over impeachment, want to address the frustrations of their voters, they are wisest to find additional ways to put real policy pressure on Obama through the power of the purse, the power of oversight subpoenas, and in a few specific appropriate cases possibly resort to the courts.
Savvier liberals/progressives know that any talk of impeachment happening based on anything like what we know now is a baseless conspiracy theory. And so, they have been openly preaching the flip side of the story: a plan for how Obama can make impeachment radioactive enough to get away with even more lawless policy actions. Here's Sahil Kapur of Talking Points Memo with a typical example:
President Barack Obama's promised executive actions on immigration [to grant work permits to potentially millions of immigrants who are in this country illegally, allowing them to stay in the United States without threat of deportation] are shaping up to put Speaker John Boehner in a bind between the passions of his conservative base and the GOP's long-term viability as a national party....A Democratic congressional aide...predicted that Republicans won't be able to hold off their fringes on impeachment. "Impeachment is already a rallying cry of the opponents of legal immigration," the aide said...White House senior adviser Dan Pfeiffer...predicted that the president's immigration actions will "up the likelihood" of impeachment.
Even a massive grant of work permits with no basis in law, deliberately designed to provoke impeachment, would still fall under the category of separation of powers disputes, but if the President is contemplating such a course of action, the proper thing for reporters to do is ask Democrats why they're looking for that fight.
The one exception, in my view, is the IRS scandal - a scandal very similar to what brought down Nixon, in that it involves not just legal violations that voters may regard as somewhat technical, but abuse of governmental prosecutorial power to persecute political adversaries. And that scandal started at the top with Obama's own public statements and his own legal strategies. Republicans can fairly make a lot of political hay out of the story, and already have. But ultimately, without the "smoking gun" of documents tying the President more directly to the way in which the IRS carried all of this out, there seems no prospect that the story will go that extra step to where a lot of non-Republican voters would shame Democratic Senators into seeking the cover of calling for Obama to leave office. And until that happens, nobody in House leadership is going to want any part of impeachment.
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July 25, 2014
LAW/POLITICS: Halbig's Critics Hoist By Their Own Petards
This has not been a good week for defenders of Obamacare and their scorn for the legal arguments challenging whether the statute provides subdsidies for buyers of health insurance policies on the federal Helthcare.gov exchange. On Monday, a divided panel of the DC Circuit ruled in Halbig v Burwell that the statute only provides subsidies for purchases on the state exchanges (the Fourth Circuit reached the opposite conclusion). The reaction to Halbig from pundits on the Left - most of them not lawyers, and many of them obviously woefully ignorant of how courts read laws - can only be characterized as an unhinged meltdown. The latest news has only further undermined their position.
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In the end, it remains to be seen who will win in court. But there are a couple of lessons here that liberal/progressive pundits and Democratic politicians would be wise to learn, about the perils of hyperbolic arguments, the dangers of pronouncing on things you don't understand, the difference between law and political rhetoric, the hazards of forgetting recent political history, and the continuing bitter harvest of the way in which Obamacare was rammed through Congress in violation of the usual methods for writing laws.
No, The Good Faith Of The Lawsuit Doesn't Matter: One of the stranger arguments made against Halbig, not only by non-lawyers who don't know any better but even in the opening lines of Judge Edwards' dissent, is that the lawsuit is somehow illegitimate because the people filing it are not really trying to help the ACA, but are foes of the statute. Here's a little secret: people who file lawsuits against federal laws are not usually big fans of those laws. Do you think the Guantanamo detainees who challenged the Military Commissions Act were really just disinterested scholars motivated by a concern for proper functioning of the military justice system? It's the job of courts to determine the meaning of laws, not the motives of litigants.
Textualism, Intent, Context, and How To Read Laws: To review some ground I covered on Monday, the core question here is what the law actually says. While courts use a variety of rules or "canons" of interpretation to resolve difficult questions, as Justice Thomas explained in an opinion for the Court back in 1992:
[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute, a court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there...When the words of a statute are unambiguous, then this first canon is also the last: "judicial inquiry is complete."...Germain says that legislative history points to a different result. But we think that judicial inquiry into the applicability of 1292 begins and ends with what 1292 does say, and with what 158(d) does not.
By contrast, as Justice Scalia wrote in a concurring opinion this spring, courts should not be in the business of trying to dig behind the language of the law to figure out what it really meant to say:
Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “intent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representatives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the President who signed the bill.
The view that courts should read statutes to mean what they say, rather than trying to bend them to whatever "purpose" the court thinks the statute was supposed to serve, is referred to in legal circles as "textualism," and it is a close cousin of "Originalism," the view that courts should read the Constitution to mean what it said - and was understood to say - at the time it was written. (The principal difference being that most of the Constitution is quite old and more general than your typical statute, so courts are more apt to look at dictionaries, public debates and the like to interpret the understood meaning of terms. But in both cases, the goal is not to get inside the heads of the legislators but rather to determine the plain meaning of the language at the time it was written).
Here, the plain language of the ACA is straightforward: Section 1401 of the ACA, codified at Section 36B of the Internal Revenue Code, provides tax credit subsidies to individuals who buy insurance on exchanges “established by the State under section 1311″ of the ACA. Section 1304(d) clearly sets forth the definition of "State," and it's what you would expect: "the term 'State' means each of the 50 States and the District of Columbia." A separate section of the ACA, section 1321, allows the federal government to “establish and operate such Exchanges within the State” if the State does not do so, and the statute nowhere provides a similar subsidy to buyers on the state exchanges or states that the federal exchange should be treated as a state exchange for purposes of the subsidies. This is not at all ambiguous.
Moreover, regardless of how strict a textualist you are, one of the rules of construction that courts typically follow most rigorously is the rule that laws should not be read so that some words in the statute are meaningless "surplusage" - that is, that the law would say the exact same thing whether those words were there or not. As Jonathan Adler notes, this is the problem with saying that an exchange “established by the State under section 1311″ includes an exchange established by the federal government established under the separate section 1321 - it would render the phrase "by the State" (and for that matter the cross-reference to section 1311) completely meaningless, since the statute would then mean the same as if it simply said "exchange established under this Title," and yet the statute uses the term "exchange" elsewhere without adding "established by the State," suggesting that it did so in Section 1401 for a reason. By contrast, the IRS regulation interpreting the statute gives away that game when it states that subsidies would be available “regardless of whether the Exchange is established and operated by a State”.
Now, courts should not read the words of a statute in isolation, but in context; on this, textualist defenders agree with Halbig's critics. But textualists talk about context, we mean that words should not mean one thing in one part of a statute and another in another part, or that one piece of a statute should not render another piece meaningless. The government has made a few arguments of this nature in Halbig, but even the Fourth Circuit, ruling in the government's favor, did not find them particularly persuasive. "Context" does not just mean "the statute should be read to say whatever people who supported it would like it to say."
The alternative is to argue that the statute is ambiguous - this is what the Fourth Circuit found - and therefore the courts should defer to the IRS in deciding what it means (despite the fact that, as a House oversight committee report detailed, the IRS' did not exactly follow a thorough and rigorous process in interpreting the statute). But the argument for ambiguity, given the entirely clear language of the key provisions, is not that persuasive. Here's the Washington Post's Greg Sargent:
The problem with that construction is its premise: That the phrase “says” something clear. That presumes that the phrase itself settles the core question at the heart of these legal challenges. To believe that, you have to believe that the literal meaning of the phrase is that subsidies should only goes [sic] to those on state exchanges, and not on the federal one. But the phrase does not literally say that subsidies should not go to people who get subsidies from the federal exchange, which under the law must be established in states that decline to set up their own exchanges. In fairness, opponents are right — the phrase also does not literally say that subsidies should go to those on the federal exchange.
This is not how laws work, and most certainly not the tax code or federal appropriations statutes. Just try telling the IRS in any other context that you're entitled to a deduction because the tax code doesn't specifically say you can't take it. If the law doesn't expressly create the subsidy, it doesn't exist, period.
What the critics have mostly argued instead of express statutory language is that the purpose of the ACA is to provide subsidies for buyers of insurance, so it would be a nonsensical result to conclude that it omitted to provide those subsidies to buyers on the federal exchange, which by now covers 36 states. As I'll discuss below, that is not a nonsensical idea at all - but more to the point, the job of the courts is to say what statutes mean, not to rewrite them if for some reason they don't do enough to accomplish whatever policy purpose the judges think Congress was trying to accomplish. Congress writes lots of laws that don't really do what they claim to do - let's not get started on the many ways in which Obamacare fails to do the things it was promised to do - but it's not the job of the courts to repair that. It's not some sort of right-wing judicial activism to read the statute carefully; to the contrary, the point of textualism is to avoid the activist practice of rewriting the laws from what they actually say.
Why this matters so much is that this dispute is likely bound for the Supreme Court. As with the original Obamacare case, there are all sorts of institutional and political reasons why Chief Justice Roberts may not want to join the other four Justices who were ready, last time around, to throw out the entire statute. But as a matter of legal interpretation, the Halbig plaintiffs are on much more solid ground than the government. Critics of textualism, like Rick Hasen in this Slate essay, argue that the courts have gone astray in taking a plain-language approach to reading laws rather than looking to effect broader statutory purposes. But like it or not, the battle for textualism and against reliance on legislative history and purpose has mostly been won by Justice Scalia over the last 30 years (even among the more liberal Justices - Michael Cannon notes an example of textualism from Justice Kagan), and it is highly unlikely that the Court will retreat from textualism now, in its hour of triumph. As Sean Trende explains:
As a purely theoretical matter, the theory behind the Halbig case is much less novel than the ones that animated the constitutional challenge to Obamacare. Were it any other law and I were advising a client, I would proceed with a pretty high degree of confidence that my client would be victorious using plaintiff’s arguments, especially before conservative judges....[A]s a general matter...for statutes the basic process is to look at the plain language of the statute first, either ignoring Congress’ intent entirely, or turning to it only in the case of an ambiguity in the statute. In this case, the law passed by Congress says that subsidies are available in exchanges established by a state. For a conservative justice, the temptation will be for the analysis to begin and to end there.
I agree with Trende - if this was a politically uncontroversial case, I'd much rather be representing a client with the Halbig plaintiffs' argument than the government's argument, and an argument like Hasen's frontal assault on textualism would be an obvious dead letter.
There has been lots of incredulity from non-lawyers at the idea of reading laws to mean exactly what they say. This Charles Gaba post attempted to analogize the Halbig argument with this "gotcha":
The exact wording of the passage is "enrolled in through an Exchange established by the State". Setting aside the question of whether the "S" in "State" was meant to be capitalized or lower-case, and even setting aside the fact that "State" could be interpreted as referring to either one of the 50 individual "United States of America" or to the sovereign "State" of the Federal Government, I'll throw one more at you: What about the District of Columbia's exchange?? D.C. is not a "State" by most interpretations of the word; it doesn't have voting U.S. Representatives or Senators, it doesn't have it's own Constitution and so forth. Yet their ACA exchange isn't being challenged by the plaintiffs in the Halbig case. Why not?
Gaba had to update his post to claim that he was just kidding after I pointed out to him on Twitter that the reason nobody is challenging the definition of "State" as including DC and the "Commonwealth" states is that the statute explicitly defines the term "State" to include "each of the 50 States and the District of Columbia." But that goes to the heart of the argument: Congress defined the term, it included DC, but it did not include the federal government. This kind of definition-reading is lawyers' daily work, and it really is not controversial in most cases. But fans of the ACA seem shocked that courts would do it here, and they seem to think that being shocked is an argument in and of itself.
Is It Plausible That Congress Meant To Do This?: Notwithstanding the language of the statute, the main argument made against Halbig by left-wing pundits is that it is simply inconceivable that Congress would have provided subsidies only to buyers on the state exchanges, and that at most any omission of subsidies on the federal exchanges must have been some sort of typo that the courts ought to fix. But even if you could get a court to ignore the statutory text, there are four main problems with this line of argument.
As a practical matter, the first problem with this argument - that Congress would never, ever, ever have intended to cut off healthcare funding as a club to get states to join the program - is that it ignores the fact that this is precisely what Congress did in the Medicaid section of the statute. The ACA's Medicaid expansion didn't just condition new Medicaid funding on states agreeing to Obamacare's new rules for Medicaid eligibility. It went even further, and stripped away every penny of federal Medicaid funding for states that would not go along.
Is it plausible that Barack Obama, Nancy Pelosi and Harry Reid wanted to completely defund Medicaid anywhere in the country? Of course not. Did they pass a statute doing just that? They did. Did the Administration defend that statute in court? Yes it did (and lost; the Supreme Court threw out that part of the ACA). But they did it because they expected that the leverage of holding hostage 20-25% of a state's budget would be so powerful that all 50 states would have to go along. It is hardly a fantasy to think that the exchange subsidies were drafted with a similar thought in mind and a similar assumption that every state could be made to go along, so the federal exchange would never be more than a short-term stopgap (recall that early drafts of the law did not even include a provision for a federal exchange).
Second, recall the wider political context. It was widely assumed in 2009-2010 that Obama's 2012 opponent would be a then-sitting GOP governor: Sarah Palin, or if not Palin then Tim Pawlenty, Mark Sanford, Rick Perry, Jon Hunstman, Bobby Jindal, Haley Barbour, or Charlie Crist. The major battle in Washington immediately before Obamacare was the stimulus bill, which provoked a huge fight between the Administration and various state governors who did not want to accept federal funds that came with a lot of strings attached, but many of whom ended up with little choice but to accept at least some of those, in some cases due to bruising fights with their own state legislatures and heavy-handed ad campaigns directed by the DNC from Washington. The Administration seemed obsessed with co-opting and neutralizing as many potential adversaries as possible by forcing them to sign on to its policies, and was visibly frustrated that Republicans (with exceptions like Huntsman, who took an Administration job, and Crist) were not cooperating in eliminating distinctions between themselves and Obama. At the same time, Democrats were still convinced that their healthcare policies would be popular and that Republicans would be compelled by public pressure to support them. Using heavy-handed tactics to coerce recalcitrant governors into accepting both Medicaid and the Obamacare exchanges made all sorts of political sense from this perspective, and it is entirely plausible that the drafters of the ACA simply assumed that they would succeed in setting up exchanges in all 50 states, and didn't consider what would happen if that plan didn't work.
Third, there is another entirely plausible reason why this statute got passed without a lot of thought being given to the consequences. Normally, issues with the language and details of a large, complex bill get hammered out in the House-Senate conference that follows passage of separate bills through both Houses of Congress. But here, that never happened. The Senate passed a bill, the House passed a different bill, and then the election of Scott Brown in January 2010 made it impossible to muster the 60 votes to pass anything else through the Senate. (Ironically, as you may recall, Brown's main theme against Obamacare was that Massachusetts voters were perfectly happy with their own state exchange - and as it turned out, that exchange was driven into the ground by Obamacare, throwing the state's voters onto the federal exchange). So Democrats basically broke the rules and disregarded the usual legislative process, passed the Senate bill through the House, and then pretended it was a budget bill so they could re-pass it through the Senate without 60 votes. That not only means there was never a conference to determine which provisions the sponsors really wanted in the bill, there was also never a conference report detailing what Congress meant in provisions that might seem ambiguous or counterintuitive. The blame for the mess made in the statute rests squarely on those who insisted that they didn't need to follow the usual rules and procedures for passing bills.
And now, fourth, we have the damning vidoetapes of Jonathan Gruber, one of the key architects of the law as a White House consultant. Halbig's critics have sung from a unanimous songbook all week on the idea that - even if it was theoretically possible that Congress might have intended to reserve subsidies to the state exchanges - there was no evidence at all that anybody in Congress actually thought that. Brian Beutler at The New Republic was the most strident on this point: "The claim that the ACA *intends* to deny subsidies to people in Healthcare.gov states is a demonstrable fraud," Beutler wrote, and "I sympathize with the poor clerks who were assigned to Google for evidence that the administration and Congress were content with ignoring the importance of the subsidies to the expansion goal," and this:
I suspect many of the people advancing this claim realize that it is false, and are engaged in an elaborate gaslighting campaign. Others have probably convinced themselves that they are correct, and are now mansplaining the intent of Congress to both the reporters who covered the bill and the aides who drafted it, all of whom understand how absurd this revisionist history really is.
Now, as a legal matter, none of this is relevant (and conservative commentators were flagging this issue in the statute as far back as 2011), but Beutler's claim that nobody imagined that the law meant what it plainly said is blown to shreds by two videos (so far) showing Gruber doing exactly the thing Beutler and his cited sources at Vox.com claimed was impossible, inconceivable and had never happened: telling audiences that states needed to set up exchanges to avoid leaving the subsidy money on the table. Moe Lane has covered those vidoes here and here. Gruber is one of the drafters of the law who has been going around this week saying the same thing as Beutler and even filed an amicus brief telling the court that the statute provides subsidies on the federal exchange, and Sargent cites some other fairly vauge examples of his later tune, but on tape closer in time to the events, he was telling audiences who had come for his advice on this point that the statute conditioned subsidies on state exchanges. In a wonderful bit of new Washington-speak on a par with "I lied to my diary," Gruber told TNR after the first video surfaced that it was "just a speak-o—you know, like a typo," but the second video shows him making this point in prepared remarks. And Gruber isn't just any old staffer - he was paid almost $400,000 in consulting fees by the Administration for his work on Obamacare, and his remarks on the subject were part of the continuing cash-in on his expertise on the statute's implications for states, what was apparently a regular stock speech.
If anything, Gruber's change of tune over time is yet further evidence of why reliance on the statements - sometimes conflicting, sometimes self-interested - of proponents of a bill is a poor substitute for reading the bill itself. And the fact that none of the journalists covering the debate actually got statements on the record at the time on this issue is not proof of anything but the incompetence of those journalists. Beutler, Sargent, Ezra Klein and the rest of the Vox crowd are now stuck furiously backpedaling from the Gruber videos because they insisted on overselling the unanimity of opinion on an issue that was not so much a consensus as an oversight. One hopes they will learn something from this episode about calling people liars and frauds, but I would not hold my breath.
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July 22, 2014
POLITICS/BUSINESS: Latest Posts
More of my latest posts, off the site. At RedState:
DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States (updated with the Fourth Circuit's decision)
At The Federalist:
Posted by Baseball Crank at 2:52 PM | Business | Law 2009-Present | Politics 2014 | Politics 2016
LAW/POLITICS: DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States
A divided panel of the DC Circuit this morning handed down its long-awaited decision in Halbig v Burwell, holding 2-1 that Obamacare does not provide subsidies for purchases of insurance on the federal Healthcare.gov exchange, and that the individual mandate does not apply in states that have not established their own state exchanges. The decision, based on the plain language of the statute (and not any Constitutional issue), is a huge blow to Obamacare, but is almost certainly not the last word in this litigation (which may yet go to the full DC Circuit and/or the Supreme Court) or in the political battle over the exchanges.
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The Court's Reasoning
The legal issue is fairly straightforward. The Affordable Care Act statute provides tax credit subsidies to individuals who buy insurance on exchanges "established by the State under section 1311" of the ACA. To an ordinary reader, an exchange "established by the State" would seem to refer to exchanges established by states, unless the statute defines the word "State" to include the federal government, or unless section 1311 has some other, broader definition. Neither is the case - in fact, a separate section of the ACA, section 1321, allows the federal government to "establish and operate such Exchanges within the State" if the State does not.
The court, reviewing this language, concluded that Obama's IRS had gone too far and exceeded the authority the statute provided when, in a May 2012 regulation, it extended the subsidies to buyers of policies on the federal exchange. Notably, the IRS regulation did not try to define the federal exchange as a "State" exchange, but instead stated it was covering buyers "regardless of whether the Exchange is established and operated by a State".
Under longstanding rules, if the plain language of a statute says something, courts will enforce it unless it produces "absurd results" (i.e., there is no possible way it was meant to say that), it renders other parts of the statute meaningless, or the larger context of the statute shows that it was meant to be read some other way. The DC Circuit was unconvinced that any of these arguments could salvage the IRS' insistence that "established by a State" really meant "regardless of whether the Exchange is established and operated by a State".
The problem confronting the IRS Rule is that subsidies also turn on a third attribute of Exchanges: who established them. Under section 36B, subsidies are available only for plans “enrolled in through an Exchange established by the State under section 1311 of the [ACA].” 26 U.S.C. § 36B(c)(2)(A)(i) (emphasis added); see also id. § 36B(b)(2)(A). Of the three elements of that provision—(1) an Exchange (2) established by the State (3) under section 1311—federal Exchanges satisfy only two: they are Exchanges established under section 1311. Nothing in section 1321 deems federally-established Exchanges to be “Exchange[s] established by the State.” This omission is particularly significant since Congress knew how to provide that a non-state entity should be treated as if it were a state when it sets up an Exchange. In a nearby section, the ACA provides that a U.S. territory that “elects . . . to establish an Exchange . . . shall be treated as a State.” 42 U.S.C. § 18043(a)(1). The absence of similar language in section 1321 suggests that even though the federal government may establish an Exchange “within the State,” it does not in fact stand in the state’s shoes when doing so.
(p. 17-18) (Notably, the Administration just yesterday did an about-face on whether a territory is treated as a state under the statute. As the DC Circuit notes, at p. 37-38, the ACA also does not impose an individual mandate on the territories, despite the Administration's longstanding position that core elements of the statute would collapse without the mandate). The decision doesn't just affect the subsidies, however - it also effectively repeals the individual and employer mandates for many individuals and employers, because the scope of those mandates is for certain practical reasons limited to places where the subsidies are in effect (for example, because it keys the individual mandate to the availability of coverage, including subsidies, below a certain cost threshold). The mandate issue is why the taxpayers who brought suit had standing to sue (see p. 9-11).
More broadly, the court found that the statute's structure - contrary to the Administration's argument - treats the federal exchange as different from the State exchanges, as of course it is in its personnel and operations:
[S]ection 1311(d) assumes that states will carry out the specific requirements Exchanges must meet. But if those assumptions prove wrong, section 1321 assigns the federal government responsibility both to establish the Exchange and to ensure that it satisfies the particulars of section 1311(d)...In other words, section 1321 creates a limited scheme of substitution: the requirements assigned to states by 1311(d) are transferred to the federal government if a state fails to establish an Exchange. The specific requirement that (d)(1) assumes each state will fulfill is to establish an Exchange in the form of “a governmental agency or nonprofit entity.” So if a state elects not to participate in the creation of an Exchange, section 1321 directs the federal government that it must create “a governmental agency or nonprofit entity” to serve as the Exchange. Crucially, this construction does not entail ignoring the plain meaning of “established by a State” in section 1311(d)(1); here, section 1321 tells us to substitute the federal government for the state under a certain scenario. But there is nothing comparable with respect to section 36B: no analogue to section 1321 says that section 36B should be read to encompass federally-established Exchanges. Accordingly, we reject the dissent’s argument that, because federal Exchanges are established under section 1311, they are by definition “established by a State.”
We have seen, in practice, that the federal and state exchanges are not the same - they run on different technological platforms established by different contractors, overseen by different officials, and some have been more or less successful than others.
Finally, the court noted the narrow scope of the basis for rewriting the statute's plain language simply because it was badly drafted, so long as it is internally logical: "The Constitution assigns the legislative power to Congress, and Congress alone, see U.S. CONST. art. I, § 1, and legislating often entails compromises that courts must respect." (p. 22). As the court concluded (p. 41):
We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.
UPDATE: The Fourth Circuit agreed with the DC Circuit's initial reading of the language - "There can be no question that there is a certain sense to the plaintiffs’ position. If Congress did in fact intend to make the tax credits available to consumers on both state and federal Exchanges, it would have been easy to write in broader language, as it did in other places in the statute" (p. 18) - but concluded that " the court is of the opinion that the defendants have
Why It Matters
Limiting subsidies to states with their own exchanges is important because only fourteen states plus DC have their own exchanges. Congress would have required the others to establish exchanges, but the Supreme Court, in particular in a line of cases in the 1980s and 1990s, has held that the federal government cannot just give orders to the states about what laws they must pass. Instead, the most the federal government can do is offer carrot-and-stick incentives. That was the basis on which the Court held, 7-2, that Obamacare's Medicaid expansion went too far in pushing states to expand the criteria for Medicaid to cover more able-bodied adults above the poverty line.
As a result of that decision, many states with Republican governors refused to expand Medicaid, and many of those same states (and even some that expanded Medicaid) refused to establish their own exchanges. The possibility that states might need to be encouraged to establish an exchange is, in fact, one theory why the ACA was written as it was - that at some point in the drafting process, it was thought that limiting subsidies to state exchanges would encourage that (see p. 32-34 of the decision; Cato has some great background on the legislative history and language here; Michael Cannon has done yeoman work on this case). Nonetheless, nobody really disputes that most of the Congress that voted on the ACA simply had no idea what the statute said - they had to pass the bill, as Nancy Pelosi said, to find out what was in it.
The decision is unlikely to be the end of the line. Senior Circuit Judge Harry Edwards dissented, and with Democratic appointees now an 8-5 majority on the DC Circuit, the Administration could appeal first for an en banc hearing by the whole court, which would drag things out before the inevitable appeal to the Supreme Court (which was unlikely to want this case if no lower court had ruled against the Administration, but which is now much more likely to have the final say). In the interim, even the panel's reluctance suggests that the decision may not go into immediate effect, as the Administration will likely seek a stay of the ruling while it appeals.
It is never good news for Democrats to get yet another ruling that the Obama Administration overreached and tried to rewrite legislation passed by Congress, and because House Republicans will not cooperate further with efforts to keep Obamacare from imploding, Democrats must face the real risk that the litigation could confine the statute's reach, after all, to just the states with their own exchanges, as shown on this map from the Kaiser Family Foundation:
You will notice that map is dominated by blue states, with one very noticeable exception (Kentucky, where Mitch McConnell has been more than a little evasive about the state exchange). And the list of state exchanges has been shrinking, given the fiascos and scandals surrounding the Cover Oregon and Maryland exchanges and even the failures of the previously functional Romneycare exchange in Massachusetts, to say nothing of Vermont, Colorado, Minnesota and other states. Republican governors who wanted nothing to do with this mess now look a lot wiser than those who claimed that there was no real difference if they established an exchange.
But the news will put some Republican governors in a tight spot, as well, because even as the ruling promises to free their states from mandates, it cannot entirely undo the mess made by Obamacare in burning the ships of the previous individual insurance market. People have lost other forms of insurance, and been thrown into dependence on the subsidies; as happens with government programs, in some places the subsidies have become popular with their recipients. The resolve and the policy creativity of GOP Governors up for re-election in the states with only the federal exchange will now be put to the test. And conservative activists should be prepared to keep the heat on their statehouses to make sure they don't end up agreeing to something worse.
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July 18, 2014
POLITICS: Could Elizabeth Warren Face Ted Cruz In 2016?
Similar, But Not The Same
Should Republicans nominate Ted Cruz, who has kept his options open with frequent trips to Iowa and New Hampshire? In some ways, Cruz and Warren are mirror images, and the cases for and against them are surprisingly similar. But there are also some critical differences.
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Before 2008, the idea of a presidential contest between two first-term Senators in their (by then) fourth year in Washington would have seemed ridiculous; in 1988, Dan Quayle was roundly mocked for his youth and inexperience after twelve years in Congress, including eight in the Senate. But just as the defeat of Robert Bork and the subsequent confirmation of David Souter led to the rise of the conventional wisdom that a Supreme Court nominee should be a "stealth" candidate with a minimal paper trail, the election of Barack Obama in his fourth year in the Senate suggested the electoral advantages of running a candidate with as thin a record as possible, who could serve as an empty vessel into which voters could pour their aspirations.
While partisans on both sides would gag at the comparison, in some ways, Cruz and Warren are a lot alike. Both ran their first campaign for public office in 2012 (although Cruz had begun mounting a campaign to run for Texas Attorney General in 2010 before Greg Abbott decided to run for re-election), and won in the state that best emblemizes their party's ideological base. Both seem at times like walking regional/ideologiocal stereotypes, Warren a professorial type from Boston academia, Cruz with his Texas cowboy boots and swagger, despite the fact that Warren is from Oklahoma, Cruz was born in Canada, and both pursued their higher education in New Jersey.
Both are obviously highly intelligent and Harvard Law pedigreed - Cruz was on the Law Review, clerked on the Supreme Court and had been a national debate champion in college, and has argued nine Supreme Court cases; Warren was a nationally respected bankruptcy law professor at HLS and was herself a statewide high school debate champion. Yet, both rely heavily on populist appeal rather than Paul Ryan-style wonkery. Both have one of the surest signs of intellect and one of the most useful skills in politics and lawyering, the ability to boil down complex issues to explain them in simple terms. Warren, of course, can be fantastically misleading when doing this, most famously when comparing the interest rates paid by banks on loans that are repaid overnight and rarely default to the rates paid by college students on loans that may extend 10 to 30 years and default frequently, an analogy no honest adult could defend. But then, Cruz's critics have their own list of favorite soundbites they don't like; both are seen by their party's grassroots base as rare principled truth-tellers, and by the opposing party as dangerous charlatans or worse. Both have proven to be successful grassroots fundraisers, although Cruz has been less consistent at political moneymaking than Warren. Both are much in demand by campaigns looking to fire up their party's base, and would run fiery campaigns that grow their party's base at the risk of turning off moderates. Both are eloquent and forceful speakers, but neither is particularly warm, charming or likeable in the way that we usually associate with winning national candidates. Both broke the usual mode of cautious and deferential new Senators, making an immediate splash in Washington. Both would be history-making candidates - Warren the first woman to be a national party presidential nominee, Cruz the first Hispanic nominee.
For all the similarities, however, there are some important distinctions between how Cruz and Warren are situated.
1. Cruz has a stronger electoral record. Both Warren and Cruz have yet to prove they could win anything outside the most favorable possible conditions - a polarizing national election deep in favorable territory, Warren in Massachusetts, Cruz in Texas. But there's two difference. First, Cruz ran a lot closer to the national ticket. Mitt Romney carried Texas by 15.8 points, earning 57.13% of the vote; Cruz also won by 15.8 points, with 56.46% of the vote. For all intents and purposes, Cruz ran even with Romney in Texas. But (while we do not have exit polls) he may have had a somewhat different coalition: a Latino Decisions pre-election poll found Cruz drawing 35% of the Hispanic vote against 65% for his opponent Paul Sadler, compared to 29% for Romney and 70% for Obama. By contrast, while Obama won Massachusetts by a whopping 23.2 points, with 60.67% of the vote, Warren won only by 7.6 points, with 53.74% of the vote. There are too few Hispanics in Massachusetts to be picked up in the exit poll (4% according to the exits), but the Latino Decisions poll (which, I should note, had Hispanics as 5.9% of the vote) showed Warren running only a little behind Obama, winning them 86-14 to Obama's 89-9. But other demographic groups were a different story. Obama won men in Massachusetts 55-43, Warren lost them 53-47. Obama won 73% of voters under 30, Warren 61%; Obama also won 56% of voters age 30-44, Warren lost them 55-45. Obama won 92% of the black vote, Warren 86%. Obama, who was routed with white voters nationally, won them in Massachusetts 57-42, including white men 50-48 and white women 63-37. Warren lost white voters 51-49, losing white men 50-42 and winning white women 55-45. Obama won self-described moderates 55-43 and independents (another group he lost nationally) 52-45; Warren lost both, moderates 55-45 and independents by a lopsided 59-41. Obama won suburbanites 57-42, Warren lost them 51-49. While maps can be misleading due to the urban concentration of Democratic voters, you can see that Cruz carried a much broader cross-section of his own, much larger and more diverse state (Cruz got 4.4 million votes compared to Warren's 1.7):
Now, there are extenuating circumstances here. Warren was running against a moderate, well-funded, personally popular incumbent, Scott Brown, a famously talented retail politician; Cruz's opponent, former State Rep. Paul Sadler, was basically an underfunded punching bag. So Warren's race was much more contested than Cruz's or than the presidential race in either state. That is reflected in voter turnout: 72.9% of registered voters voted in Massachusetts in 2012, compared to an average of 70.5% over the prior three general elections, whereas only 58.6% of registered voters voted in Texas in 2012 compared to an average of 66.4% over the prior three general elections.
And while Mitt Romney was a hometown candidate and former Governor of Massachusetts, politically and culturally much closer to the typical Massachusetts Republican than Obama to the typical Texas Democrat (in 2008, Obama lost the primaries in both Massachusetts and Texas), Romney's popularity in the state was pretty bad by 2012 (the exit poll had his favorability at 40-59) after the national campaign and the acrimonious New Hampshire primaries of 2008 and 2012. That helps explain why Obama beat Romney with demographic groups in Massachusetts (white men, white women, independents, suburbanites) that Obama was losing, badly, in most of the battleground states and nationally.
We do, however, have one piece of additional evidence of Cruz's ability that we don't have with Warren: his record in a hotly contested primary. Warren cruised to the nomination, which is a show of her strength in scaring off challengers but also means her ability to win a primary race is untested. Cruz, by contrast, won a major upset against a deeply entrenched member of the Texas GOP establishment, longtime Lieutenant Governor David Dewhurst (Cruz finished second in a crowded primary, 44% to 34%, but won 56.8% against Dewhurst in the runoff).
In the final analysis, neither Cruz nor Warren has proven they could appeal to anything like the swing voters of Ohio, Florida, and other purple states. But Cruz has at least shown that he can win a hard-fought primary and run even with his party's national ticket on friendly turf. Warren has yet to do even that much.
2. Warren has to beat Hillary. The proverbial 800-pound gorilla in the 2016 presidential race is Hillary Clinton. Hillary is beatable, in theory, in a primary; after all, she lost to Obama in 2008. But in reality, her massive name recognition and fundraising prowess starts her off in a much stronger polling position than in 2008, and her presence alone may deter Warren from running (and already influenced Warren to sign a letter encouraging Hillary to run). Moreover, Warren would face a serious demographic challenge. Obama's 2008 victory over Hillary required a two-pronged assault on her coalition: one prong was anti-war white liberals who carried Obama to wins in the caucuses and states in the Pacific Northwest and Upper Midwest, and the other was an overwhelming, 90%+ majority among black voters (see, e.g., here, here, and here), who allowed Obama to sweep the South (in most Southern states, black voters are a majority of the Democratic primary electorate, and Obama swept Mississippi, Alabama, Georgia, the Carolinas, Virginia, Maryland, DC and Delaware).
Warren, running more on economic populism (e.g., Hillary's six years on the Board of Directors of Wal-Mart) than Hillary's support for the Iraq War or Hillary's opposition before 2013 to same-sex marriage, is one of the few Democrats with the fundraising ability and ideological footprint to replicate the first part of Obama's primary coalition, and her gender neutralizes Hillary's most potent weapon. But there is no reason to believe that she could reconstruct the monolithic black support that was decisive for Obama. That would leave Warren needing to make a frontal assault on Hillary's existing base, a much tougher challenge than consolidating the support of people who are not already locked in.
By contrast, Cruz faces an open field, the most open Republican field in the modern primary system and really comparable only to prior Democratic fields (1976, 1988, 1992, to some extent 2004) that lacked any kind of frontrunner. Few national polls these days put anybody above 15% support, much less 20%, and the leaders are often people with big name recognition who are not that likely to run (Jeb Bush, Mike Huckabee, Mitt Romney) or face a natural ceiling on their appeal (Rand Paul). The moderate/"Establishment" wing of the party has yet to consolidate behind one candidate, having gotten the jitters over Chris Christie after Bridgegate. That hardly guarantees victory for Cruz, as the GOP has an embarrassment of riches in terms of Governors and Senators who could run and be appealing candidates in different ways. But it's precisely the kind of open field in which a strong ideological figure could emerge victorious despite a lack of the traditional resume Republicans ordinarily expect.
3. Cruz is much younger. Warren, like Hillary and Romney, is a child of the 1940s; Cruz is a child of the 1970s. If you compare them to the roster of Republicans who might be in the Presidential or Vice Presidential mix (by design, this is an overinclusive list), both Warren and Hillary stick out as an older crowd:
Even in the primaries, that means yet another way in which Warren will struggle to distinguish herself from Hillary to win the favor of the Democrats' youth-obsessed electorate, which fell for Obama partly because of his relative youth and 'coolness.' It also means there's a greater urgency to Warren's decision - if she doesn't run in 2016, she probably never will (we've never elected a non-incumbent who was over 70, and the two over-70 nominees, John McCain and Bob Dole, were constantly dogged by the age issue), whereas Cruz could easily stay in the Senate and run a decade or two from now.
In a general election, age may not be a disabling factor but it is likely to play in a way that provides a favorable contrast for the Republican nominee (if it's Cruz or one of the other fortysomethings) against Warren, just as it would against Hillary. Only two Presidents were over 65 when they entered office (Reagan and William Henry Harrison, and Harrison died a month into his term), and the dependence of the Democrats on younger voters will be tested if their candidate is 20-25 years older than the Republican.
4. Cruz is building a foreign policy profile. Americans are focused on domestic policy issues these days, and the 2014 election, like 2012 and 2010, will be dominated by domestic issues. But Americans still expect their President to be up to the role of Commander-in-Chief, and in an increasingly dangerous and unstable world beset with regional crises, foreign policy may be harder to avoid in 2016.
Cruz, the son of a Cuban immigrant, has put a lot of effort into building a profile on foreign policy. His most famous Supreme Court fight as Texas Solicitor General was over the International Court of Justice's treaty authority to reopen U.S. death sentences handed down to Mexican nationals, a subject he returned to earlier this year with an essay in the Harvard Law Review on the limits of the treaty power. He joined with Rand Paul in early 2013 in a high-profile fight against drone strikes against U.S. citizens, but has subsequently broken with Senator Paul over the future direction of U.S. foreign policy, and made a point of giving foreign policy speeches at conservative events. Cruz has traveled extensively - to South Africa for the Mandela memorial service, to Israel to show support for a key U.S. ally, to Ukraine, to Poland and Estonia to criticize Vladimir Putin. Cruz's list of Senate committee assignments includes a who's who of committees focused on national security, border security, public safety, technology and American power:
Committee on Armed Services (Subcommittee on Emerging Threats and Capabilities, Subcommittee on Readiness and Management Support, Subcommittee on Seapower)
Warren, by contrast, serves on the Committee on Banking, Housing, and Urban Affairs, the Committee on Health, Education, Labor, and Pensions, and the Special Committee on Aging (on which Cruz also sits; Cruz is also on the Rules Committee). The Washington Post noted in December that Warren "has done nothing, for example, to curry favor in early primary states or to build her foreign policy credentials by traveling abroad." This stands in stark contrast to Obama, who built his campaign around opposition to the Iraq War. Her statement of "Eleven Commandments" that progressives stand for in today's Netroots Nation speech is conspicuously silent on foreign affairs or national security; the closest she comes to the border is the bland assertion that " immigration has made this country strong and vibrant, and that means reform." Warren often evades foreign policy questions; witness this video from yesterday of her literally running away from a question about Israel and Gaza:
5. The Fauxohontas Factor: Warren and Cruz will each give the other party huge amounts of ideological ammunition, but comparatively little biographical ammunition. The one exception is the furor over whether the pasty-white Warren - who claims to have some small amount of Cherokee blood and on this basis was touted by Harvard Law School as a "diverse" faculty member - improperly took advantage of affirmative action preferences not meant for white people. Pundits generally assume that this controversy was beaten to death because it didn't stop Warren from winning in 2012, but as noted above, that race left Warren running far behind the national Democratic ticket, and as Mike Dukakis, John Kerry and Mitt Romney can tell you, what works in Massachusetts may not always work nationally. And the fake-Indian issue could be surprisingly potent in a campaign against an actual son of a Cuban immigrant.
6. Warren has to play ball with Obama: The final factor here is structural. Cruz can more or less draw up his own path right now: his party doesn't control the White House, it doesn't (for now, at least) control the Senate, and Cruz is so often at loggerheads with party leadership that there is no real concern that he will be locked into votes he doesn't want just out of being a loyal soldier. That's not all good - he also carries the baggage of a lot of people blaming him for the 2013 government shutdown - but it means his mistakes will be his own.
Warren, by contrast, would inevitably have to run with eight years of Obama's foreign policy and economic baggage, and the early signs are that she lacks Cruz's stomach to buck party leadership. One of the signature anti-corporate-welfare fights Cruz has been leading lately is his crusade against the Export-Import Bank; Warren just came out in support of the Obama Administration and Senate Majority Leader Harry Reid in favor of re-authorizing the Ex-Im Bank. That may well be a decision popular with major donors, and even a decision publicly defensible as a pro-business, pro-growth posture (the grounds cited by Warren), but it inevitably muddies her populist message whenever she sides with the current power structure out of party loyalty. It is always hard to square populist revolt with "four more years of the same" and not discomfiting the comfortable on your own side.
So...will Cruz run in 2016? Will Warren? Should they? Certainly both can have an impact on the policy debate within their own party by running, and Warren in particular could have a much larger impact if she runs than if she tries to play kingmaker/queenmaker in an effectively uncontested race. And it would be foolhardy to count either of them out, as a potential nominee or a potential President. That said, for all her weaknesses, it is still hard to argue with the idea that if Hillary Clinton wants the nomination, she will get it and should get it as the strongest Democratic candidate in 2016 - not Warren. The case for Republicans running someone other than Cruz is more arguable, given the large number of other options (personally, while I like Cruz a lot and admire his principled and pugnacious conservatism, I prefer a Governor like Bobby Jindal or Scott Walker, for a lot of reasons), and that is what primaries are for - but there is little question that Cruz would be, like Warren, the most polarizing candidate the party could choose.
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July 15, 2014
POLITICS: 8 Myths In The Immigration Debate
Stop Saying That. It's Not True.
The ongoing debate over immigration, and over illegal immigration in particular, is one of the most acrimonious - usually needlessly so - in our politics. It divides both parties, though it's no secret that the divisions within the GOP on this issue are far worse. And all sides in this debate are guilty of peddling myths and rhetoric that do more harm to the debate than good.
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1. "One-Time" Amnesty: The 1986 immigration bill - one of Ronald Reagan's biggest mistakes as President - was sold to the public as a long-term, if not permanent, solution to the immigration problem, and in exchange, illegal immigrants already in the country for four years were given a one-time path to citizenship. The law was a failure, as all sides of the debate recognize (if it had really solved the problem, we wouldn't still be fighting over it): "the number of unauthorized immigrants living in the country soared, from an estimated 5 million in 1986 to 11.1 million today."
Trust us, we are told: it will be different this time. And it probably will - some things will work better than in the past, some worse. But fundamentally, complete security at the border that eliminates 100% of illegal immigration is no more plausible than 100% elimination of drugs, abortion, guns, pornography, cigarettes, prostitution, or anything else there's a demand for. The best we can do is to reduce, rather than completely eliminate, lawbreaking. And the record of government competence in this particular area does not inspire confidence.
Personally, I favor a path to legalization, perhaps not full citizenship but at least lawful permanent residency for people who have made a life in this country and - other than being here illegally - have not committed any crime. But if we are talking seriously about the terms of a path to legalization, we should ask ourselves what kind of path is rigorous enough to accept as a permanent feature of our immigration laws, one that preserves the preference and priority for legal immigrants rather than incentivizing them to come illegally. We should not play the childish game of pretending that we can lay down a path now and never be asked to do it again.
2. Everything Is "Amnesty": At the same time, the unrealistic and hyperbolic overuse of the term "amnesty" often makes it impossible to have a reasonable discussion of what to do about illegal immigrants. Not every proposal short of mass deportations or Romneyesque "self-deportation" by attrition is the same: many proposals involve penalties or disabilities that make people worse off than if they had come legally, or worse off than they were before (except for gaining legal status). And immigration is by no means the only policy area in which governments use amnesties, clemencies or similar programs - tax amnesties are fairly common, as are amnesties for lesser offenses like parking violations. No grave social stigma is attached to people who qualify for them. Even in the criminal law, few people are punished to the full statutory maximum penalty for any offense, and lots of people (even violent offenders) return to American society after paying whatever debt is demanded of them.
The blanket condemnation of any and all policies that allow people to stay in the U.S. after entering illegally is based on the view that illegal immigration somehow makes you different as a person, as if it is a form of original sin that can never be forgiven. That is neither a conservative nor a Christian view, and it is inconsistent with a long history of people making it to America by hook or by crook. If it benefits society to allow people to remain here - a point we can fairly and reasonably debate - and if we do not create undue incentives for illegal entry, there is no principled reason why people who want to be Americans cannot be allowed to stay here.
3. "Undocumented Immigrants" and "Illegals": Because illegal entry is a form of conduct, not an identity, we should really dispense with referring to people as "illegals." They are not a legal status - they're human beings. But the flip side of "illegals" is the liberals' insistence on the term "undocumented immigrants," as if the law itself is simply meaningless misplaced paperwork. Really every person with a functioning brain recognizes the willful dishonesty of this term, which exists solely to pander and mislead.
The proper term for people who entered the country illegally is illegal immigrants, or perhaps illegal aliens, although the term "alien" isn't really all that commonly used as it was in the 18th and 19th centuries.
4. "Conservatives Just Hate Immigrants": One of the really infuriating tendencies in the immigration debate is the Democrats' insistence on not distinguishing between legal and illegal immigration. But conservatives care about law and order, and to most conservatives, the distinction is a hugely important one. No serious person would propose that legal immigrants "self-deport," for example. The majority of conservative voters, if given the choice, ask only that the government put the clamps on illegal immigration.
5. "Nobody Is Anti-Immigration," and "Nobody Is Anti-Immigrant": Again, the flip side of this is that our side of the aisle often protests that nobody is against immigration or that nobody is against immigrants. And if we are honest, this is simply not true. First of all, there are undoubtedly some people - and they are usually loud enough to be easily spotted - who simply don't like Mexicans, or generally dislike non-English speakers. (In fact, even if you welcome immigration, it can undeniably be frustrating at times dealing with people who do not speak the language well. That is a completely human reaction and one that has always existed in every country.) Second, while I believe it has greater benefits than harms in the long run - because people, on net, are an asset, and a nation needs a growing population - the immigrant experience in this country has always brought with it a certain level of poverty and social problems, and reasonable people can differ over the costs and benefits.
And third and most importantly, even if you have nothing personally against immigrants, there are clearly people (and not just conservatives) who think all immigration should be restricted, legal and illegal, or at least that we should restrict the volume of immigration to something like what is now allowed legally. At the extreme, every sane person believes this - neither our economy, nor our culture, nor our political system is equipped to deal with, employ and assimilate an unlimited number of people who did not grow up here. But even within the bounds of current debate, there are those who argue that too many immigrants drive down wages and reduce job opportunities for native-born Americans. Like it or not, this view is fairly prevalent among labor unions and blue-collar workers (if anything, it is more commonly held among African-Americans, who have often been the workers competing directly with new migrants). It was the view of Cesar Chavez. It is, at least in part, why Mexico itself has such draconian immigration laws. The same arguments are echoed in debates over agricultural guest workers and H-1B visas for high-tech workers. Again, reasonable people can differ on the merits of this argument, but it is a legitimate argument and not simply a smokescreen for the hating of Mexicans. In times of economic hardship and uncertainty, it is callous and insular for our political elite to look down on these concerns and belittle them as unfit for public discussion.
If you think there is no such thing as people who are against immigration, ask yourself the last time you heard the phrase "close the borders." Because that is being against all immigration.
6. "Secure The Border First": One of the favorite phrases used by Republican politicians is "secure the border first." As a matter of legislative bargaining, of course, it's entirely reasonable to demand that the other side put X in a bill, or maybe even pass X into law, before we move on to Y. That's part of the give and take of sausage-making.
But as a policy matter, as I noted above, the border will never be 100% secure. You can argue for particular policies: the fence (which I think would be both practically and symbolically helpful, but is no cure-all), an increase in the size of the Border Patrol and in the tactics it is approved to use, or interior-enforcement mechanisms like e-Verify (I'm skeptical of its big-government bureaucratic mandates). But realistically, we are unlikely even to have an agreed-upon, objective standard for when and whether the border is "secure". If we had solid, real-time data about border crossings, we'd be better at stopping them. We can demand specific improvements, but any policy we enact must accept the reality that some level of border insecurity will always be with us.
7. "Comprehensive Immigration Reform": One of the worst features of modern Washington is the thousand-page forest of "comprehensive" legislation on any given subject, in which there are an almost limitless number of places to hide special-interest gimmicks and giveaways and traps for the unwary, and so many nooks and crannies that even more voluminous regulations are needed to interpret the rules. Madison famously warned, in Federalist No. 62:
It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Madison could hardly have asked for a better illustration of this than Obamacare, of which then-Speaker Nancy Pelosi earned her permanent place in the lexicon of notorious American political quotations by asserting that we would have to pass the bill to find out what was in it. Four years later, what the bill does and does not contain and when it goes into effect is still the subject of political debate, regulation, and litigation, including the pending D.C. Circuit Halbig decision on whether the bill's reference to subsidies on state exchanges actually means state and federal exchanges (even the Administration and its defenders essentially concede that this could have been more clearly drafted) and current Speaker Boehner's threatened lawsuit over when the employer mandate goes into effect.
Because so much of immigration law is a devil-in-the-details business, the prospects for mischief, misunderstanding and executive misreading abound, even if you think the idea of the bill is a good one. And while everyone is in favor of reforming the immigration laws, there are huge and real disagreements about what "reform" means. The only political justification for rolling every subject - border enforcement, path to legalization and/or citizenship, guest workers, H-1B visas - into a single bill is the theory that a comprehensive compromise is more likely to pass than a bill on one or another specific subject that does not have something for every faction.
The problem with this theory is that it is belied by political reality. "Comprehensive reform" didn't pass when we had a Republican president and a Democratic House and Senate. It didn't pass when we had a Democratic president, a Democratic House and a filibuster-proof Democratic Senate. It hasn't passed with a Democratic president, a Republican House and a Democratic Senate. And there's no particular reason to think it stands a better chance of passing with a Democratic president, a Republican House and a Republican Senate (if the GOP gains the Senate this fall) or even if the GOP were to win back all three branches in 2016. The more sensible approach, if you are actually looking to make the legislative process work and not just grandstand at campaign time, is to build trust and momentum by shearing off smaller pieces of the bill and passing them as standalone bills, one at a time, each with its own coalition, each concise enough that people will know what they are voting on.
8. The Facts Are On Our Side: Conservative immigration hawks repeatedly find themselves talking past the rest of the political system on these issues, because ultimately the conservative argument is about what is legal and illegal, right and wrong, practical and impractical, while everyone else is talking about what is popular and unpopular, what is offensive and what is welcoming. And of course, as with every aspect of this issue, there are fair arguments about immigration policy from the standpoint of pure, unprincipled electoral calculus.
Unfortunately, too many people on our side fail to understand that in a democracy, the facts are not everything - we can not win arguments without a thought to the tone and presentation of them and how they will be received by people who do not start off agreeing with us. It is always most effective to write and speak, on any issue, with an eye towards persuading people who may be undecided on an issue that yours is the most reasonable and humane position. Instead, way too many of the people who care most about the immigration issue write and speak as if their hair is on fire and an immigrant just killed their dog. And that is extremely unhelpful to the cause of the GOP, the cause of the conservative movement, and even the cause of doing something serious about controlling illegal immigration. For example, Proposition 227, banning bilingual education in California schools, passed with 61% of the vote in 1998 not because California voters were convinced to hate Spanish-speaking people, but because even many immigrants were persuaded that their children were better off being pushed to learn English. But today, with immigration a polarizing partisan issue nationally, California Democrats are pushing a ballot question to repeal Prop 227 by 2016.
Hispanic and Asian voters in particular tend to view the really hard-line rhetoric on this issue, the people who talk about "invaders" and hype every bad thing that can be said about illegal immigrants, the people who have a problem even with private charity aiding children and teenagers stranded at the border, as driven by racism. Fair or not, when the loudest voices in your movement have that effect, they should reconsider what they are doing, because facts or no facts, law or no law, in a democracy, one man and the truth are lonely drinking buddies.
The immigration debate is hard enough as a matter of both policy and politics without making it more difficult by constantly saying things that are not so.
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