Halbig and Obamacare: What We Have Learned (Part I)

ObamacareTwo-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.[1] 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.

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Public Pensions, Public Choice, and the War Against the Young

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.

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The U.N. Human Rights Council at Work

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.

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The Invasion of Iraq: The Unreliability of US Reconstruction Policy

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…

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Worse Partisanship en Español?

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…

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Extralegal Power

Wilson IIIn 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:

Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.

Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”

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Impeachment Won’t Stop the Debasement of Our Government

Proper as it is to dismiss President Obama’s daring his opponents to impeach him as childish posturing for his political base – secure as he is that the Senate’s Democratic majority would prevent his conviction regardless of any Constitutional evidence brought against him – nevertheless we must note that Obama risks disaster, as do children who play with matches in the presence of gasoline. His flaunting of impeachment sets up the alternative between the unfettered power of any president supported by a Senate majority and, on the other hand, the unfettered power of any Congressional majority coherent enough to remove presidents politically unpalatable to it.

Either way, Obama is opening the door to the partisan erasure of the distinction between executive and legislative power.

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Time to Rethink the Chevron Doctrine


These are interesting times, constitutionally speaking. In the past two weeks, federal courts have ruled both ways on Obamacare. In the D.C. Circuit, a panel ruled that the law allows for subsidized health insurance in exchanges created by state governments, but not in the “backstop” exchange created by the federal government. Meanwhile, the Fourth Circuit says that the statute allows subsidies in both.

Who is right?

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If We do not Hang Together, We will surely Hang Separately

The New York Times reported this week that many European nations are paying ransom to Al-Quaeda for return of their  kidnapped nationals. While the humanitarian impulse behind such payments is wholly understandable, they pose a clear danger to the security and ultimately to the liberty of the West, including the United States. Ransom payments encourage more kidnapping.  And they fund Al-Qaeda. The substantial sums of money raised could be used to launch even more serious plots, including plots to obtain and use weapons of mass destruction. ISIS is also likely to copycat this successful strategy.  And remember that Al-Qaeda disaffiliated with ISIS because the latter was too violent and extreme. (Parenthetically, I might mention that 20 years ago, I was able to walk with complete safety in Raqqa, now the de-facto capital of ISIS. That recollection, along with the memory of the old-world charm of the now decimated Aleppo, is a personal measure of the calamity that has befallen the region).

The West had better come to international legal agreements to stop such ransoms–and soon. International coordination is required because ransoming hostages of one nation endangers the security of everyone by making terrorists more powerful. The United States, which has properly refused to pay ransom, must lead the effort for international agreements here.

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