Executive and regulatory over reach, aka trashing the Constitution? Even Lawrence Tribe has problems with the Obama agenda:
As President Obama forges ahead in his fight against climate change, a leading Harvard Law School scholar says a central piece of the president’s strategy is akin to “burning the Constitution” merely to advance an environmental agenda.
In testimony before the House Energy and Commerce Committee on Tuesday, Harvard constitutional law professor Laurence H. Tribe said the Environmental Protection Agency’s plan to limit greenhouse gas emissions from U.S. power plants is built on a shaky legal foundation. The proposal, Mr. Tribe argues, far exceeds EPA’s authority under federal law and strikes a blow to the 10th Amendment by essentially making states subservient to Washington on energy and environmental matters.
Mr. Tribe’s testimony — with which other legal scholars strongly disagreed during Tuesday’s hearing — comes about a month before the D.C. Circuit Court of Appeals will hear arguments in a case that challenges EPA’s so-called “Clean Power Plan,” which would limit pollution from both new and existing power plants and is designed to reduce coal use across the country.
“EPA’s proposal raises grave constitutional questions, exceeds EPA’s statutory authority and violates the Clean Air Act,” said Mr. Tribe, who has argued before the Supreme Court dozens of times and represented Al Gore in the case that ultimately decided the 2000 presidential election.
“EPA is attempting an unconstitutional trifecta — usurping the prerogatives of the states, the Congress and the federal courts all at once,” he continued. “Burning the Constitution of the United States … cannot be a part of our national energy policy.”
On CNN this morning, White House aide David Simas avoided congratulating Prime Minister Benjamin Netanyahu on the Israeli elections. Instead, he would only congratulate the Israeli people on having an election.
“We want to congratulate the Israeli people for the democratic process for the election that they just engaged in with all the parties that engaged in that election. As you know now, the hard work of coalition building begins. Sometimes that takes a couple of weeks. And we’re going to give space to the formation of that coalition government and we’re not going to weigh in one way or another except to say that the United States and Israel have a historic and close relationship and that will continue going forward,” Simas said.
Hillary Clinton continues to be a dominant force heading into the 2016 presidential election, according to a new CNN/ORC poll. The former secretary of state maintains a broad lead over the field of potential Democratic challengers she could face in a nomination contest and sizable advantages over the leading contenders from the Republican side in general election match-ups.
If, no, when President Obama issues his executive orders addressing immigration, Republicans are going to be faced with making some decisions about how to address those EOs. One of the ideas recently floated comes from the Chairman of the House Appropriations Committee and considers involving the House’s “power of the purse”, aka, defunding. The interesting point is that the rescission power rests with the President granted under the Congressional Budget and Impoundment Control Act of 1974. However, Congress has used it in the past (without presidential direction) as Chairman Rogers notes:
The chairman of the House Appropriations Committee pitched GOP colleagues on a plan to rescind funding for targeted programs in the next Congress to respond to President Obama’s planned executive amnesty, throwing a new idea into a ring already full of them.
“Chairman Rogers just got up and said if we pass an omnibus and then the president does this executive amnesty, he said we can rescind it, and we can rescind it with 218 and 51 and we don’t need the president. That’s what he just told me. I’ve never heard that before,” said Rep. Matt Salmon (R-AZ), a key conservative lawmaker who has emerged as a leader in crafting strategy on the issue.
The idea startled GOP members who, according to Salmon, hadn’t contemplated the strategy until now. And Rogers had difficulty explaining the idea to a scrum of reporters given that the last time it was used was the 1990s. “I don’t think any of you have ever seen a rescission bill!” Rogers said.
“There’s any number of possibilities including rescission of spending after the fact. One of the difficulties we’re having is we really don’t know what actions he plans to actually take. When Livingston took over as chairman, he proposed and passed rescissions of spending bills that after the fact took away money that had been appropriated for an agency,” Rogers added.
The reason he’s talking about “after the fact” is Congress is currently engaged in trying to pass a huge spending bill and that will likely take priority. Once passed, then it will likely address anything that Obama has directed via EO. Also note that rescission bills are very rare – Congress isn’t about cutting spending or defunding much of anything.
However that are a number of Republicans that don’t even want the spending bill passed until next year:
Many Republicans are pushing to punt significant legislative action, including an omnibus spending bill, until the next Congress, when the GOP will have more leverage and control, given their control of the upper chamber.
Whatever the eventual plan, the next two months should be quite interesting. However, should they pass the spending bill before the next Congress, rescission provides a path for the GOP to cut funding to the programs that Obama targets with his EOs and trigger quite a nasty political battle next year.
And no, that’s not a rhetorical question – it’s a real concern.
Even the left knows they’re in trouble for the 2014 midterms … or should be. John Judis of the New Republic:
What I’d point to instead is a comparison between where Obama and the Democrats stood in January 2010 and where they stand today. In January 2010, they were about to lose the Massachusetts senate race, and in November 2010 would lose 63 seats in the House and six seats in the Senate. If Obama and the Democrats’ numbers are better now than they were then, they may not be in trouble; but if they’re worse, the conventional wisdom is right. And they’re worse.
The most recent standard of comparison is the ABC/Washington Post poll that asked some of the same questions in January 2010. First, there are the questions about Obama. These are relevant because midterm elections are often referenda on the president and his party. In January 2010, Obama’s approval ratings were 53 approval to 44 percent disapproval of his “handling his job as president.” Today, 46 percent approve and 50 percent disapprove—a 13-point swing. In January 2010, 47 percent approved and 52 percent disapproved of his handling of the economy. Today 43 percent approve and 55 percent disapprove—a seven-point swing.
In January 2010, 57 percent of registered voters thought that Obama understood “the problems of people like you.” Forty-two percent did not. Today, it’s 47 to 52 percent—a 20-point swing. And there is a similar 20-point swing in the question of how much confidence voters have in Obama’s ability to “make the right decisions for the country’s future.” In short, the electorate has far less confidence in Obama now than they did in January 2010.
ABC—Washington Post didn’t ask the same questions about Democrats and Republicans in January 2010 that they asked today, but they did ask these questions in October 2010 on the eve of the Republicans’ sweep. In October 2010, voters thought Democrats would do a better job than Republicans handling the economy by 44 to 37 percent. Today, they think Republicans would do a better job by 44 to 37 percent—a 14-point turnaround. In October 2010, voters said (incredibly) that they preferred Democratic House candidates by 49 to 44 percent. Today, they prefer Republicans by 45 to 46 percent. The number for October 2010 may be inaccurate, but in any case, there is nothing in the current numbers to inspire confidence. In midterm elections, the Republicans have a built-in advantage that allows them to maintain their majority without winning a majority of votes.
To be as succinct as possible, the 2014 midterms are the Republican’s to screw up. And this is where Johnathan Last of the Weekly Standard points us toward the problem (one we’ve been hitting up here lately):
What could have accounted for these diminished prospects for Obama and the Democrats? Oh, it’s hard to say. Probably just tactical brilliance on the part of congressional Republicans. Yes, that’s the ticket. I mean, it’s not like there was a signal event that focused all political attention on a single issue. It’s not like there’s a Topic A that has been demoralizing Democrats, rallying Republicans, moving independents, and providing a constant stream of campaign fodder.
No, no, no, it’s not like there’s one subject which totally unites the Republicans and cuts against Democrats and—mirabile dictu!—where the news keeps getting worse for Obama with every passing week. As Homer Simpson would say, “Right, Lisa. Some wonderful, magical issue.”
So with the wind at their backs and the Democrats in disarray, late last week the Republican leadership decided that this was the perfect moment to change the conversation to…immigration reform!
To again be as succinct as possible, they’re on their way to screwing it up.
And they wonder why people call them the “stupid party.”
Perhaps I should say the building myth and the reality.
What is the building myth? That the worst is behind it. Megan McArdle fills you in:
Many of the commentators I’ve read seem to think that the worst is over, as far as unpopular surprises.
But she then takes a chain saw to that particular notion:
In fact, the worst is yet to come.
· 2014: Small-business policy cancellations. This year, the small-business market is going to get hit with the policy cancellations that roiled the individual market last year. Some firms will get better deals, but others will find that their coverage is being canceled in favor of more expensive policies that don’t cover as many of the doctors or procedures that they want. This is going to be a rolling problem throughout the year.
· Summer 2014: Insurers get a sizable chunk of money from the government to cover any excess losses. When the costs are published, this is going to be wildly unpopular: The administration has spent three years saying that Obamacare was the antidote to abuses by Big, Bad Insurance Companies, and suddenly it’s a mechanism to funnel taxpayer money to them?
· Fall 2014: New premiums are announced.
· 2014 and onward: Medicare reimbursement cuts eat into hospital margins, triggering a lot of lobbying and sad ads about how Beloved Local Hospital may have to close.
· Spring 2015: The Internal Revenue Service starts collecting individual mandate penalties: 1 percent of income in the first year. That’s going to be a nasty shock to folks who thought the penalty was just $95. I, like many other analysts, expect the administration to announce a temporary delay sometime after April 1, 2014.
· Spring 2015: The IRS demands that people whose income was higher than they projected pay back their excess subsidies. This could be thousands of dollars.
· Spring 2015: Cuts to Medicare Advantage, which the administration punted on in 2013, are scheduled to go into effect. This will reduce benefits currently enjoyed by millions of seniors, which is why they didn’t let them go into effect this year.
· Fall 2015: This is when expert Bob Laszewski says insurers will begin exiting the market if the exchange policies aren’t profitable.
· Fall 2017: Companies and unions start learning whether their plans will get hit by the “Cadillac tax,” a stiff excise tax on expensive policies that will hit plans with generous benefits or an older and sicker employee base. Expect a lot of companies and unions to radically decrease benefits and increase cost-sharing as a result.
· January 2018: The temporary risk-adjustment plans, which the administration is relying on to keep insurers in the marketplaces even if their customer pool is older and sicker than projected, run out. Now if insurers take losses, they just lose the money.
· Fall 2018: Buyers find out that subsidy growth is capped for next year’s premiums; instead of simply being pegged to the price of the second-cheapest silver plan, whatever that cost is, their growth is fixed. This will show up in higher premiums for families — and, potentially, in an adverse-selection death spiral.
In fact, she is exactly right. Note how many of these surprises happen before 2016. And, as they come true, perhaps … just perhaps … when voters are told that the rest of this nonsense is likely to come true too (it is the law, you see), they might believe it.
Perhaps. The “Cadillac tax” was inartfully delayed until after the election. However, the snowball will already be rolling down hill by then and you’d think the public would be open to believing that the rest of this abomination, that which was delayed, will indeed happen. And you’d also believe they’d want to do something about that (that, of course assumes Obama doesn’t wave the magic executive pen and waive all of this until after the election).
But then, doing something would depend on what? Well, getting elected officials that want to actually get rid of most of this monstrosity and are willing to say that and then do it. Uh, that won’t be Democrats (well except perhaps blue dog Democrats, if they’re not extinct by then).
What it all boils down too is that voters will have to depend on Republicans to do the heavy lifting. The question is will they do that if elected? In other words, will Republicans be up to the job?
If I had to base it on the current crop – yeah, not so much.
In a brilliant move, the GOP has managed to not only be unable to impose the debt ceiling, it has apparently found a way to capitulate and make it temporarily unlimited:
There’s no actual debt ceiling right now.
The fiscal deal passed by Congress on Wednesday evening to re-open the government and get around the $16.4 trillion limit on borrowing doesn’t actually increase the debt limit. It just temporarily suspends enforcement of it.
That means Americans have no idea how much debt their government is going to rack up between now and February 7, when the limits are supposed to go back into place and will have to be raised.
17 days for this?
And they wonder why people call them the “stupid party”.
Seen today on an MSN newsfeed:
What does it say? It says the GOP is more screwed than we ever understood.
The “old ladies” are still predominant and now are fighting among themselves and attacking the Tea Party, which should, if you believe GOP propaganda, be a natural ally.
As long as that condition prevails, the GOP will remain a minority party in national politics. And yes, I know, there are some new faces attempting to emerge. But between the left, the media and the old ladies, their chances of emerging anytime soon without having their character assassinated are likely slim and none.
What will the Republican Party look like when it retakes the lead in governing? I’d bet it will be a coalition that identifies more with what Alex Castellanos is laying out at NewRepublican.org.
Some of it is new messaging for old ideas. Castellanos rebrands spontaneous order and subsidiarity as “open,” “natural,” “organic,” and “bottom-up.” He tags statism, command economies and federal control as “closed,” “artificial,” and “top-down.” Those are elegant ways to tell Whole Foods shoppers and Silicon Valley what we’re about without assigning them F.A. Hayek or a history of the Soviets.
Castellanos also stresses the superiority of private compassion over state welfare, but instead of getting trapped by placing charity in a bidding war with the welfare state, or quibbling over the definition of charity, he casts the state welfare agencies as “machine-like” or “factory-like” and “archaic,” and more importantly labeling them as “social mercenaries” that allow Americans to “distance ourselves from our responsibilities as human beings,” which involve “person-to-person” compassion.
That leads into a much more substantive change: redirecting social conservative energy to where it can actually accomplish something for itself and for the party, namely local and fulfilling private action instead of trying to seize the top and push down, which outsources to politicians and bureaucrats the promotion of our values.
Several items on the list of 67 beliefs of New Republicans (67!) deal with this:
4. We believe in freedom nationally and values locally.
6. We believe that when we allow big-government to enforce our values, we legitimize it to enforce other values, as well.
7. We believe in natural and organic ways of addressing social challenges, not political and artificial controls directed by Washington.
12. We believe Washington should stay out of our wallets, and out of our bedrooms.
39. We believe we are Republican for Everybody, and Republicans Everywhere. We believe our principles are an indispensable force for good, needed now to alleviate poverty, misery, dependency, and family breakdown destroying American lives in our inner cities.
Social conservatives lost the battle to use federal levers to enforce family and religious values, and damaged the good reputation of those values in the attempt, but those beliefs are still popular in many states, towns, and households. They can still gather a majority coalition with libertarians and moderates to carve out the space to practice their values and their faith without interference from the state, with more confidence and optimism than Paul Weyrich had in the late ’90s; if they revert to using top-down power, those potential allies will be embarrassed of their association with social conservatives. That’s coalition politics.
The New Republicans will avoid being associated with Big Everything, including Big Business. What saps the Republican Party’s entrepreneurial spirit and daring to cut government and promote free markets is its reliance on forces that want the state to protect them against change and competition; Milton Friedman repeatedly observed that this makes business community a frequent enemy of free enterprise. But the GOP need not be anti-business, just suspicious to the extent of keeping anything Big at arm’s length.
Finally, Castellanos does stress a couple of times that New Republicans believe in “campaign[ing] for our solutions in the most benighted parts of America, from the barrio to the inner city.” I’ve heard noises to that effect from Republicans for years, but that will only succeed if it’s a major, sustained effort; if we have nothing to say about urban problems beyond school choice, and we don’t learn how to assertively persuade people that we are absolutely superior at addressing poverty, we’re cooked. These things require practice, trials and errors, and personal experience with the poor and with urban life. We have to be able to win at least sometimes, electing mayors and city councils in major metro areas, to show that our way of governing works for the growing portion of the country living in cities.
I said at the beginning that this is how Republicans will think when they regain the lead in governing, and I chose those words instead of “winning elections” because it’s possible the GOP can temporarily get over 50% here and there by other means, but it won’t have the initiative until it accepts the challenge to persuade all of America that its principles are relevant to them. The party could and should also make gains by modernizing the way it learns and reorganizes itself, how it encourages and channels activism, its campaign tactics and strategy, and more. But those things go naturally with a mindset that’s reflexively entrepreneurial and not only open to change but so hungry for it that we’re unafraid to stop doing what isn’t working.
This is a departure from my previous two posts; it’s not about a particular group that has pulled away from the GOP. Romney pulled a slightly larger share of older voters than McCain did, even if fewer total turned out than in previous years. That the Romney-Ryan ticket did this while proposing entitlement reform is a substantial feat, but it did involve watering down the reforms a great deal. For example, Republicans now make a habit of promising that nobody under age 55 will be affected by their reforms.
Why make this concession when the lion’s share of the fiscal problem is current retirees and the many, many Baby Boomers who will retire soon? Boomers vote, of course, but what motivates them? I don’t think most seniors could bring themselves to act on straightforward greed; I think they’re voting based on a particular concept of fairness.
Specifically, they paid into the system over a long career, and they believe they should be able to get back what they paid in. And even though current Medicare beneficiaries get two to six times as much in benefits as they paid in (if this is right), only about a third of Americans think Medicare beneficiaries get any more than they paid in. As long as they think that way, they’ll continue to oppose means testing and raising the retirement age by wide margins.
You might be tempted to say that our task is to educate them, but it’s much easier to persuade people based on their current beliefs than to convince them of inconvenient facts first. Republicans basically conceded that cutting benefits to older voters at all would be unfair, and pushed complicated plans that few people aside from Paul Ryan can competently defend.
But we might be even bolder if we just hugged that core fairness principle tighter.
September’s Reason-Rupe poll (PDF – fixed link) asked Americans if they’d support cuts to their own Medicare benefits “if you were guaranteed to receive benefits at least equal to the amount of money that you and your employer contribute into the system.” It was a blowout: 68% yes, 25% no. Three quarters of Tea Partiers said yes.
At a stroke, you could slash Medicare in half with a reform based on that principle. (Their August 2011 poll suggested similar support for applying the principle to Social Security, but the cuts would be much more modest.)
Centering a reform on that principle achieves steeper cuts and seems easier to defend than what Paul Ryan is trying. Because if Democrats fought us on it, they’d have to make the wildly unpopular case for entitlements as redistribution programs rather than as “insurance” or “savings.”
The kind of coalition the Right needs for sustainable entitlement reform has to include people who highly value fairness (or, as Jonathan Haidt would call it, proportionality). If we want the project of liberty to be successful, we have to pluck on other heartstrings.
I already mentioned that marriage, kids, and a mortgage are very strong indicators of conservatism. Here’s a straightforward causal explanation: when you’re invested in something, you don’t want it to be taken from you, and you’re skeptical of starry-eyed meddlers doing anything that might threaten it. Probably the best thing done for the cause against gun control was teaching others how to use and maintain a firearm: once people own one, it sharpens the mind to cut through any argument for taking it away.
But a gun is a small investment compared to a committed and intimate relationship, custody of children, and homeownership. A dollar taxed is one that you can’t spend on your family when they want something, a dollar borrowed is one that your kids will pay back, and that meddler on TV is rolling the dice with a major part of your life.
In the case of immigration, Hispanics are already primed to be conservative because they’re already invested. With gay marriage, you have a group trying awfully hard to get more invested.
The conservative argument for embracing gay marriage is that marriage seems to be a fine institution that benefits even people who can’t have children together, and that it may strengthen the institution and the country to expand the institution so that a nontrivial minority of the population is on the inside trying to protect it rather than on the outside where their exclusion leads to thorny political issues of respect and tribalism.
Another conservative argument is that if gay marriage is politically inevitable, conservatives should proactively move through legislation to ensure that it goes smoothly without infringing on other freedoms (like those of association and contract), rather than allow this to play out entirely in the courts or in a referendum. If conservatives keep trying to board the windows, more stuff is going to end up broken than if they just opened the door.
As with immigration and Hispanics, marriage may not be gays’ top priority, but it matters, and the way Republicans approach and discuss the issue can signal that “you’re not one of us,” which is poison for coalition-building.
The flip side of that coin doesn’t have to be pandering; given the consciousness of gay communities about targeted violence and bullying, it’d be awesome if conservatives taught more gays how to use and maintain firearms.
Or, as I recommend in my previous post, how do you make issues such as contraception relevant to the economy and point out its real cost?
Well, don’t forget, at base it is another government mandate. It is government deciding what private employers and insurers will cover and how they’ll cover it. It is obviously not “free” as they claim, but another in a long line of redistribution schemes cloaked in “good intentions” and the “common good”.
It is, in fact, just another straw on the back of the private insurance camel, the addition of which this administration hopes will eventually break its back and allow government to take over that role.
Having directed all insurance companies to provide it at “no cost” to their insured and falsely claiming to the public that they’re getting something for nothing, the administration takes a step toward that goal.
One major feature of the ACA [ObamaCare] is to put so many mandates on private insurance plans (abortion pills and contraception being just a couple of them) that it becomes increasingly difficult for employers to afford private health benefits for their employees.
As more and more employers have to dump private insurance, the idea is that people will demand a government replacement plan. Lurking in the back of the ACA is the public option, which will spring to life once enough people have lost their private insurance. (This can very well happen even if the Supreme Court declares the individual mandate unconstitutional.) Once it is activated, the public option will enroll more and more Americans until it effectively wipes private options off the table.
Socialized health care through the back door.
Precisely. There is more than one way to skin a cat. And that’s what is evident here. This is an alternative cat-skinning method.
The White House argues the new plan will save money for the health system.
"Covering contraception is cost neutral since it saves money by keeping women healthy and preventing spending on other health services," the White House said in a fact sheet.
"For example, there was no increase in premiums when contraception was added to the Federal Employees Health Benefit System and required of non-religious employers in Hawaii. One study found that covering contraception saved employees $97 per year, per employee."
But it isn’t cost neutral at all. And whatever an employee “saves” on the one hand, goes away plus some to cover the expense, because here’s reality:
[I]nsurers say there’s nothing "free" about preventing unwarranted pregnancies. They say the mandate also covers costly surgical sterilization procedures, and that in any case even the pill has up-front costs.
"Saying it’s revenue-neutral doesn’t mean it’s free and that you’re not paying for it," an industry source told The Hill.
Doctors still have to be paid to prescribe the pill, drugmakers and pharmacists have to be paid to provide it – and all that money has to come from insurance premiums, not future hypothetical savings, the source said.
And all of that cost is going to be paid for by those employees who are “saving” money in higher premiums – especially those 50 somethings who are no longer in the child bearing years and ‘saving’ nothing but paying for it anyway. By the way one of the ways to lower insurance cost is to do away with government mandates and let the insured choose what coverage they’d like to pay for. But government will have none of that. That would actually remove straws from the camel’s back.
Of course there are other free market approaches that would most likely be effective if government would allow them:
[P]arents who let their children become obese by feeding them irresponsibly should bear the financial cost of the extra health care that their children will require. This can, again, be done if private insurance companies are allowed to operate on the terms of free markets. Just like a smoker should have to pay a higher health insurance premium than a non-smoker, private insurance companies should be allowed to charge higher premiums of a family that eats themselves obese than of a family that eats responsibly and attends to their own health.
Find obesity to be a national problem? What’s the most effective way to fight it? Mandates and complicated and expensive government programs that only address the problem generally? Or making the obese pay for the consequences of their irresponsible behavior?
I know, how horribly anti-American – making people take responsibility for their actions (something the GOP claims to believe in) and pay their own costs. In the new America, apparently everyone has to pay, no one is held accountable and by the way, it “will be cheaper in the long run” if government does it.
The latter is the eternal promise of nanny government rarely if ever having come to fruition.
But, back to the title and the point – now if some want to add “and it’s against my religion”, fine, wonderful, great. That’s added impetus on top of the economic one to reject Obama’s argument. But it shouldn’t be the primary argument. Instead it should be an argument that voters add themselves among themselves. The broad economic argument about the real cost, not to mention the ideological argument against the growing social welfare state are extraordinarily powerful and appealing. If others want to add their own arguments in addition to this, fine and dandy.
That’s how you do it.