My new book, Is Administrative Law Unlawful?, argues that administrative power revives prerogative power. This is not, however, an entirely original thesis. On the contrary, it once was widely acknowledged by proponents of administrative power.
For the convenience of readers, I thought I would list here my four posts detailing the reasons why I changed my position on the invasion of Iraq:
Herewith, as promised in Part I, a few additional thoughts on Halbig’s lessons. My humble observations aren’t intended as nuanced legal analysis; there’ll be time enough for that as the cases progress. Today’s subject is the broader context of how the doctrines and institutions that have sustained administrative law are coming apart at the seams.
That drip-drip-drip sound you hear is condescension falling from the mouths of skeptics appalled that such as Lynne Cheney, who does not even hold a tenured position on a university faculty and whose hands are sullied by the actual practice of politics, to say nothing of the side on which she has practiced it, and whose previous writings have not always sounded the depths of profundity, has now dared without so much as the permission of a double-blind peer-review process to produce a sober, scholarly biography of James Madison and, what is worst of all, with a prestigious trade press.
My friend and former colleague from the Office of Legal Counsel, Bill Levin, has been following the Halbig case closely. Here are his thoughts on the aftermath of the case.
The aftermath of the D.C. Circuit decision in Halbig is encouraging.
On the PR front, it has been unexpectedly difficult for Obamacare defenders. In recorded speeches from 2011 and 2012, Obamacare architect Jonathan Gruber confirms that the central premise of Halbig is correct: Obamacare provides subsidies for state exchanges only (“[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”). Now in 2014 he says his statement, evidently recorded in varying versions on at least seven different occasions, and counting, was “just a speak-o—you know, like a typo,” which, unintelligible valley speak aside, cannot be accurate unless in the Michael Kinsley sense of accidentally telling the truth.
The multiple Gruber audio and video recordings are truly a smoking gun, readily available for all to evaluate the next time someone claims that Halbig seeks to undermine Obamacare, or in the colorful, but demonstrably unsound words of dissenting Senior Circuit Judge Edwards, “This claim is nonsense, made up out of whole cloth.”
To recap the whole cloth for perspective, Obamacare provides subsidies for an exchange “established by the state.” Nowhere in its 906 pages does the statute manage to apply these simple words to the federal exchange. Not once in the legislative history is a federal subsidy mentioned by a single legislator. And now we have an architect of Obamacare, a distinguished MIT economist, not some random talking head or partisan opponent, plainly stating what the law plainly means. “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.” It could be a rallying cry, for it truly crystallizes the case, except that the sentence lacks style and cannot fit on a T-shirt. Yet Obamacare supporters are taking to the barricades and a senior judge feels emboldened to claim the litigation is fanciful. This could be the stuff of comedy were the stakes not so high.
Two-plus weeks have passed since the D.C. Circuit’s panel decision in Halbig v. Burwell and the Fourth Circuit’s opposite decision in King v. Burwell, a substantially identical case. The King plaintiffs have filed their cert petition; and the government has asked for rehearing en banc in the D.C. Circuit; and the initial agitation has subsided. It’s a fine time to highlight a few lessons that, in my estimation, we have already learned. I offer three sets of observations: today, I’ll focus on the interplay between constitutional and administrative law and on the advocacy network that produced Halbig and its companion cases; tomorrow, I’ll analyze the institutional pathologies and ideological derangements that account for the contretemps.
Almost every week brings new word of the crisis in public pensions. Yesterday the news was that New York City pensions are underfunded, make unrealistic assumptions about future investment returns, and are subject to political interference in their management. Consequently, public spending for necessary projects like infrastructure is crowded out and future generations will likely be stuck with a big bill.
Public pensions may provide the best illustration of the truth of a branch of economics known as public choice. Public choice understands that politicians are no more public-spirited than other individuals, but are simply maximizers subject to different constraints.
At a recent emergency session to discuss Israel’s military operation against Hamas, the U.N. Human Rights Council adopted a resolution—proposed by Palestine, which enjoys observer status there—to convene a special enquiry into whether Israel has been guilty of any war crimes in its current action in Gaza.
Speaking during the proceedings, at which, among the Council’s 47 members, only the United States voted against the resolution, Navanethem Pillay, the U.N. High Commissioner for Human Rights, remarked of the Israeli Defense Forces operation in Gaza:
There seems to be a strong possibility that international law has been violated in a manner that could amount to war crimes.
Ms. Pillay, a former South African judge, has a remarkable record of scenting out when there have been human rights violations.
Let me now conclude my series of essays about why I have now come to believe that the US Invasion of Iraq was a mistake. The short answer is that the invasion could have produced enormous benefits, but the US government and its political system was simply not competent enough to do the job successfully.
As I have discussed previously, the Bush Administration squandered a significant portion of the net benefits by not having enough troops or having a plan in place for the new government. And the Obama Administration did little to constrain Maliki while the US was in Iraq.
Now let me conclude with the second enormous mistake by the Obama Administration: its withdrawal from Iraq. As Charles Krauthammer recently wrote, the result of the Obama Administration’s withdrawal from Iraq
was predictable. And predicted. Overnight, Iran and its promotion of Shiite supremacy became the dominant influence in Iraq. The day after the U.S. departure, Maliki ordered the arrest of the Sunni vice president. He cut off funding for the Sons of Iraq, the Sunnis who had fought with us against al-Qaeda. And subsequently so persecuted and alienated Sunnis that they were ready to welcome back al-Qaeda in Iraq — rebranded in its Syrian refuge as the Islamic State of Iraq and Syria — as the lesser of two evils. Hence the stunningly swift ISIS capture of Mosul, Tikrit and so much of Sunni Iraq.
There is a longer story here. For example, as Peter Beinart writes:
On December 12, 2011, just days before the final U.S. troops departed Iraq, Maliki visited the White House. According to Nasr [who worked in the State Department at the time], [Maliki] told Obama that Vice President Tariq al-Hashimi, an Iraqiya leader and the highest-ranking Sunni in his government, supported terrorism. Maliki, argues Nasr, was testing Obama, probing to see how the U.S. would react if he began cleansing his government of Sunnis. Obama replied that it was a domestic Iraqi affair. After the meeting, Nasr claims, Maliki told aides, “See! The Americans don’t care.”
Iraq has now become a serious problem and the future does not look promising.
It is interesting to ask why this limited victory at the end of Bush’s second term was squandered. There are two points here. First, the Obama Administration – for whatever reason – chose to withdraw from Iraq rather than to stay engaged in order to promote a freer nation. It is not entirely clear whether this was done for political reasons or out of cluelessness, or both. In the wider scheme of things, it does not matter. The Obama Administration could not be counted on to act competently.
Second, the American people, or at least a sizeable portion of them, were not willing to sustain the actions necessary in order to maintain the gains from the intervention. The American people did not punish Obama for his behavior at the time. Instead, they believed his nonsense.
The bottom line here is that the political system – both the politicians and the American people – was simply not competent enough to pursue the nation building strategy in Iraq. Nor is this a one time phenomenon. While there are differences, the similarities between Iraq and Viet Nam are significant.
Some Republicans might place the blame on Democrats, arguing that the latter cannot be trusted with national security. Even if one accepted the premise of this argument, that would change nothing. That one of the two parties cannot be trusted to participate in long term policies for which they will inevitably have some responsibility suggests that those policies should not be undertaken.
In the end, I was mistaken to support the invasion. It is not that the strategy could not have worked if the government had been competent. The point is that the government is not competent. Overestimating the competence of the government is a cardinal sin for a libertarian, even of the moderate type that I am. I had been wiser in the past, and I should not have made the mistake. I will try not to let it happen again.
Representative Luis Gutierrez (D-IL) spoke at yesterday’s Congressional Hispanic Caucus press conference about the impasse on Capitol Hill concerning the unaccompanied Central American minors now flooding across the Mexican border. He segued into Spanish at the end of his comments.
“Gutierrez reportedly increased his rhetoric when he switched to Spanish,” according to Realclearpolitics, which linked to some back and forth between PBS’ Gwen Ifill and the Washington Post’s Ed O’Keefe over whether the Congressman got more intemperate after he switched languages.
You be the judge.
Here is the tail end of the three-minute Realclear clip. For context, I join him while he is still speaking English, and follow with all of what he said in Spanish.
Lastly, not only do they treat the children that are in such need of protection, it is almost as though they despise and hate all of our children. Because even the children that came before them, that have pledged allegiance to the flag of the United States all of their lives, love this country, and the President has afforded them an opportunity to become legal. They [congressional Republicans] want to put them in an illegal situation, an undocumented situation even though that America—and let me just suggest to everybody that an election was held in November of 2012, after the President made that decision, and the American people thought it was a good decision. And we are here to affirm it and to say we will not step back.
Lastly, hay que hacer claro que nosotros hablamos con una sola voz, no como el Caucus Congresional Hispano, no como Demócratas, sino como defensores de nuesto pueblo inmigrante. Esto es ofensivo a nuestra comunidad y nosotros no vamos a tolerar el abuso que ellos tienen contra los niños en la frontera y contra los Soñadores, setecientos mil de ellos, que tienen permisos [de] trabajo. Nos defenderemos [a] todos con todo lo que tenemos.
Lastly, it must be made clear that we speak with one single voice, not as the Congressional Hispanic Caucus, not as Democrats, but as defenders of our immigrant people. This is offensive to our community and we are not going to tolerate the abuse that they [congressional Republicans] have against the children at the border and against the Dreamers, 700,000 of them, who have work permits. We will defend everyone with everything we have.
Actually let me be the judge, at least so far as to say that the English invective—his saying that it “almost” seems his colleagues across the aisle “despise and hate all of our children”— is harsh enough.
If you read Representative Gutierrez’s recent memoir (I recommend it) you’ll see he has a demagogic side and a canny, negotiating side. Sometimes it’s hard to see the connection between the two. I do, though. With his absurd formulation at the press conference he was trying to rope in a different but related subject. He was conflating the unaccompanied children with a group that has been longer in the United States, the undocumented young adults seeking in-state tuition costs for college through the oft-discussed but never-passed Development, Relief, and Education for Alien Minors (DREAM) Act.
He was actually pressing a policy point, if wildly. (You can even see one of the Congressmen with him at the dais turn away in embarrassment during his most unmeasured moments.) His frustration that a comprehensive immigration bill has moved farther out of reach is palpable. The position of some Republicans on the deportation of family members had been drawing nearer to his in recent months; but now, with the spectacle of kids in detention centers and being bused all over the country, the immigration policy mess got a lot more complicated.
This is not to excuse his shrillness. (Or anyone else’s—recall the often bombastic former House member Tom Tancredo [R-CO], who wrote in his book In Mortal Danger that it used to be that American employers “wanted people of good moral character who had a good work ethic. Today they prefer lawbreakers.”) How can legislators ever find common ground when these kinds of appeals are being made?
Representative Gutierrez entered Congress back in 1992, when the people covered by the 1986 immigration law were just becoming eligible for U.S. citizenship. They held green cards. With his aid—and why shouldn’t Republicans consider extending the same help to legal immigrants?—many were able to become naturalized Americans. What is problematic is that in his book, and also in real life, he tends to blur the difference between the rights and obligations of those who are lawfully here and the rights and obligations of those who are not.
The Members of Congress with whom he has for years been trying to come to terms on immigration, such as Paul Ryan (R-WI), and Raul Labrador (R-ID), have in him not only a self-righteous interlocutor but one whose political project lacks a limiting principle.