Category Archives: America

Should Gov. Nixon Go to Cuba?

The Buckley-Harvard Corollary

William F. Buckley, Jr. must be smiling. In his elegant  defense of conservatism, Buckley confessed that he would rather “live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”

On Tuesday, the New York Times reported that Harvard faculty voted overwhelmingly to reject changes to their health insurance required by Obamacare. “For years, Harvard’s experts on health economics and policy have advised presidents and Congress on how to provide health benefits to the nation at a reasonable cost,” the Times reports. “But those remedies will now be applied to the Harvard faculty, and the professors are in an uproar.”

Turns out it wasn’t just average Americans who were bamboozled – a trick Obamacare architect Jon Gruber infamously chalked up to “the stupidity of the American voter.” But what could the Ivory Tower professors have actually expected? When President Obama promised, “If you like your plan, you can keep it,” did Harvard professors examine Obamacare’s incentive structure? Or did they just take the president at his word? Because a glance at Harvard’s prior plan coupled with  Obamacare’s new penalties, mandates, and taxes reveals that theirs’ was a  Cadillac plan that would be taxed out of existence.

The backlash is all the more remarkable because Harvard is merely applying common features of health care plans to their elite faculty.  For example, employees must now pay deductibles of $250 per individual and $750 per family. The deductible for a doctor’s office visit is $20. They must also pay co-insurance of 10 percent of the cost for hospitalization, surgery, or tests up to $1,500 per individual and $4,500 per family.

Besides increasing co-pays and co-insurance, employers and insurers have also been narrowing the networks of providers from which Americans can seek treatment. Harvard, however, had to reject this choice because the best and most expensive providers in the Boston area are affiliated with Harvard Medical School. Thus, to narrow its network, Harvard would have had to exclude its own providers. It would have been entertaining to hear Harvard explain to the most highly-educated workforce in the world why they couldn’t receive medical treatment from their co-workers and affiliates.

There’s nothing inherently wrong with an employer deciding on its own to shift some health care costs to employees – especially if the shift is accompanied by salary increases in place of the health insurance benefits. It’s the employer’s money. If an employer chooses to provide fewer benefits, it risks losing good employees. But that’s not Obamacare. This isn’t a choice. Under Obamacare, the shift is not voluntary but is instead forced upon employers through mandates, penalties, and Cadillac-plan taxes.

In Obamacare, the excise tax on Cadillac plans is 40 percent of the value of a plan above the Cadillac threshold – a rate that exceeds the top income tax bracket. The Cadillac-tax is set at a high level so that no sensible employer would ever sponsor a plan that triggers its penalties. Doing so would reduce both the company and the employee’s bottom line because each would pay a lower tax rate if the money spent on health insurance were simply provided as income.

The Cadillac tax is aimed at ameliorating the effect caused by a tax code that favors additional employer sponsored health insurance coverage over ordinary income or individual insurance coverage. Since World War II, if your employer buys your health insurance, it’s purchased with pre-tax dollars. But, if you buy it on your own? Sorry, taxes have to be taken out first.

It doesn’t make much sense to remove the ultimate consumer of a product from the most important decisions to be made about its purchase. Yet that’s exactly what the American tax code has incentivized since the 1940s. The simplest way to attack tax code discrimination against the individual purchase of health insurance would be to give individuals the same benefits that companies enjoy – allow them to purchase individual health insurance with pre-tax dollars. Of course, that’s not the Obamacare solution. Instead of offering a carrot, Obamacare brandishes a stick.

It took five years for the learned professors at Harvard to realize they would be on the business end of Obamacare’s stick. Now that the switch has hit, they aren’t mincing words. Prof. Richard Thomas told the Times the changes are “deplorable” and “deeply regressive.” Prof. Mary Lewis says the increased costs are just like a pay cut “timed to come at precisely the moment when you are sick, stressed, or facing the challenges of being a new parent.” Perhaps it’s time for a Buckley Corollary – maybe the Harvard faculty would be okay, so long as they know they have to live by the same rules they’d impose on everyone else. 

Executive Nullification Still Isn’t Part of the Constitution

President Obama’s immigration orders are perfectly constitutional – just ask him. Better yet, ask Saturday Night Live, whose skewering highlighted President Obama’s condescending attitude toward the now old-fashioned idea that the president needs Congress to change the law. “That’s adorable, you still think that’s how government works,” says Obama’s executive order.

In an unusual move, President Obama released a legal memo justifying his actions the same day that he announced them. Though drafted as legal justification by the Office of Legal Counsel (a DOJ office with alumns including Justice Antonin Scalia and the late Chief Justice William Rehnquist), the memo may also contain the seeds of the action’s demise.

President Obama is taking two actions. First, he directed the Department of Homeland Security to prioritize deportations. Those here illegally who have committed crimes or threaten national security are deported first. Those convicted of multiple or significant misdemeanors are second-tier deportation priorities. Finally, the third (and lowest) priority category include those issued a final removal order after January 1, 2014 – unless they “qualify for asylum or another form of relief under our laws.”

So far, so good – so far as the Constitution is concerned. The DOJ memo explains when an executive agency is charged by law with implementing a statute, the agency has broad “discretion to decide whether a particular violation of the law warrants prosecution.” But, even the DOJ acknowledges executive discretion has its limits.

For example, “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Nor may it “consciously and expressly adopt a general policy” so sweeping as to “amount to an abdication of its statutory responsibilities.” Finally, prosecutorial discretion is most appropriate when used “on a case-by-case basis.” General policies, by contrast, pose “special risks” that the executive has exceeded his constitutional bounds.

Here’s where Obama’s plan turns unconstitutional. Part II creates a new legal status for more than four million illegal immigrants. For those who are not in a priority deportation category, President Obama will create a deferred action program that the White House describes as “a legal way to earn citizenship.” If they pass background checks, pay taxes and a penalty, and learn English, they can eventually earn their citizenship.

President Obama’s executive action leaves a fig-leaf of discretion to immigration officials. For example, an illegal immigrant who otherwise qualifies for the path to citizenship may still be denied if the official finds some factor that would “in the exercise of discretion” render the path inappropriate. The Department of Homeland Security memo, however, fails to identify any example of such a factor. The Department of Justice memo relies on this “discretion” to argue that Obama’s plan “does not create a categorical entitlement to deferred action.”

But President Obama’s rhetoric suggests otherwise – and so does common sense. Nobody is more sophisticated about immigration law than those in the shadow of the law. If this were no big deal – hey, you can exercise your discretion liberally order — immigration advocates wouldn’t be partying like its 1999. How often will Homeland Security agents actually exercise any deportation discretion for illegal immigrants who are not in the high-priority deportation categories? How often will they reject an application for the path to citizenship?

There is little doubt under the authorities cited by the DOJ memo that a court would strike an across-the-board rule as a violation of the Constitution’s “Take Care” Clause. But what happens if the “discretion” exists in theory but is never or rarely exercised in reality? When does a “guideline” become a rule?

As a matter of policy, there’s a good case to be made for a path to citizenship as part of a comprehensive immigration reform bill. There’s no functional way to find and deport everyone who is here illegally. Just as important, a path to legalization provides both the benefits and the responsibilities of citizenship – paying taxes.

Regardless of your immigration politics, all Americans should be alarmed by the precedent of Obama’s action. Our Constitution grants the president many powers, but executive nullification is not one of them. If we are to remain a nation governed by the rule of law, no single policy win can justify running roughshod over the Constitution.

Like Obamacare, the states will probably wage this legal battle, but the cases will take time to develop. Legal standing requires injury. Before filing suit, a state must incur increased costs associated with the order. These challenges will take years to wind through the courts, and, by the time of a decision, further intrusions may occur. If the president can take this action on immigration law, why not environmental or tax laws? Liberals may eventually rue the day Obama decided to take the law into his own hands.

Galloping Toward an Imperial Presidency

Ours is a nation of laws, not men. As Thomas Paine put, “In America, the law is king.” Hence, the “Take Care Clause” requires that the President “shall take care that the Laws be faithfully executed.”  Presidents have attempted to expand the power of the executive branch since the beginning of our country. Presidential authority to execute – or not execute – the law was vigorously debated by the First Congress, and was a key issue of President Andrew Jackson’s war on the Bank of the United States.

In March 2008, then-Senator Barack Obama campaigned on a different kind of presidency. “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” Obama promised. “And that’s what I intend to reverse when I’m president of the United States of America.”

In 2011, after his first mid-term election shellacking when Democrats lost the House, President Obama reversed course. While most presidents have worked to expand executive power in foreign policy, after his first mid-terms, President Obama launched a deliberate, creeping expansion of executive authority in domestic policy. Among other “pen-and-a-phone” actions, President Obama granted No Child Left Behind waivers that were unsupported by federal law, made recess appointments to key positions that were later struck down by the Supreme Court, directed Homeland Security not to enforce immigration laws against students, and unilaterally delayed enforcement of Obamacare’s employer mandate.

Now, with his presidential clock ticking and zero influence in Congress, Obama has accelerated from creeping to galloping toward an imperial presidency. In the weeks since the mid-term trouncing, leaks of President Obama’s purported plan to suspend the nation’s immigration laws for more than 5 million illegal immigrants has dominated Washington. Conservative Charles Krauthammer calls it an impeachable offense, and even the liberal Washington Post has implored the president to reconsider.

Obama has acknowledged that his authority to act is, at best, a legal stretch. In 2013, he conceded it “would be very difficult to defend legally.” When asked about what he could do if Congress refused to act, he explained, “The problem is, is that I’m the president of the United States, I’m not the emperor of the United States, my job is to execute laws that are passed.”

Options to stop Obama’s encroachment are limited.

Impeachment is not realistic. It requires a two-thirds vote of the Senate. Even assuming every Republican would vote for it (unlikely), there aren’t enough Democrats who would cross the aisle. You know what you call a president who survives impeachment? Emboldened. Worse, the impeachment process will suck the air out of Washington, suffocating any positive agenda Republicans could otherwise present.

Litigation is a long-shot. Speaker Boehner is suing President Obama for repeated intrusions into Congressional power. There are some similarities between Boehner’s lawsuit and Marbury v. Madison. But Marbury’s injury was specific to him. Speaker Boehner’s lawsuit relies on congressional standing, which a judge is likely to find insufficient to allow a case to proceed under Article III of the Constitution.

Congress can pressure President Obama to relent by withholding funds but the President’s proposal is to nullify federal law by executive order. There may be some funding associated with inaction, but it won’t be much. Ultimately, however, the decision will be President Obama’s.

Presidents, particularly those in their second terms, should take the long-view. If he continues down this path, President Obama will allow his personal urgency of a short-term policy battle to undermine the checks-and-balances that have helped make ours the greatest nation in history. He may “win” this policy fight, but only temporarily – as he will make it impossible for Congress to pass a bill and his victory will be subject to reversal under the next president. And at what cost? A precedent that would permit the next president to ignore a law President Obama supports. What if the next president decides not to enforce Obamacare’s individual mandate? Or Sarbanes-Oxley? Or the top tax rate?

Elections have consequences. The President has powers that Congress has little ability to stop. With his boots in the stirrups and whip-cocked, only President Obama will determine what happens next. As the only president in modern American history with a professional background in constitutional law, President Obama must realize the precedent he’s contemplating. Mr. President, put the whip down and come off your unitary executive horse. Think like Professor Obama on this one, not the wounded, term-limited, and frustrated politician you’ve become.

A Time to Lead

For the first time in eight years, Republicans will return to Washington in January with control of both houses of Congress. Now what? How  Congressional Republicans answer that question may determine which party controls the White House in 2017.

Before the results were in Tuesday, Texas Senator Ted Cruz already declared the Republicans’ first priority should be Senate hearings to expose the Obama administration’s “abuse of power, the executive abuse, the regulatory abuse, the lawlessness that sadly has pervaded this administration.” Sen. McConnell disagreed and argued for “a responsible governing Republican majority.” On Thursday, he and Speaker Boehner laid out an agenda in the Wall Street Journal.

Naturally, there will be investigations of the Obama administration. But it should not be the first priority. With President Obama lingering in the White House and only a slim margin in the Senate, large and permanent conservative policy victories is unlikely in the next two years. If the Republican majority squanders its power the next two years re-litigating Obama’s first six years, it will miss a tremendous opportunity to define the agenda for the 2016 presidential election.

President Obama will not be on the ballot in 2016. Hillary Clinton will. Making the Obama administration the focus of the Republican Congress will not trap the Clinton campaign. Instead, it would invite Hillary to distance herself from President Obama with the same triangulation strategy practiced by her husband. Contrary to Cruz’s wishes, Republicans in Congress should not give her such gifts.

If the next two years are to have long-term impact, the new Republican majority must coalesce around a positive agenda, or they’ll fritter away a short-lived majority.  With Obama off the ticket, 2016 will not be a referendum election. Without an incumbent on the ballot, it will be a choice election – and the ultimate winner will be the party best able to articulate a vision for our country’s future. It may even resemble the 2008 election – which President Obama won with promises of “hope” and “change” that appealed to America’s inherent optimism. 

Rather than litigate the past, Republicans should look forward. Much of that vision requires a series of stand-offs with Senate Democrats and President Obama. First, the low-hanging fruit. Authorize  the Keystone XL pipeline and dare Democrats to filibuster it and Obama to veto it. Pass legislation to stop the backdoor carbon tax making its way through the EPA.  Extend the soon-to-expire law that keeps Internet access tax free,  an underreported issue that Senate Democrats have stalled. Shift the CDC’s focus back to infectious disease control.

Then, move to more difficult topics. Put a balanced budget on President Obama’s desk. Start an adult conversation about entitlement reform starting with Rep. Paul Ryan’s ideas. Pass a realistic immigration bill that prevents President Obama’s unlawful executive overreach, but also addresses the problems.

On health care, pass an Obamacare repeal out of the House and bring it up for lengthy debate in the Senate, where Democrats will filibuster. Then ditch the County Club collegiality rule in the Senate that permits Senators to filibuster a bill by mail. Make them stand and debate. After failing to break the filibuster because there aren’t 60 votes, offer alternatives and start working on smaller fixes. For example, repeal the medical devices tax. Allow  more flexibility for plans offered in exchanges. Grant states more flexibility in administering state Medicaid programs.

Get serious about corporate and individual tax reform. As Rep. Jeb Hensarling recently told the Wall Street Journal, “it’s a put-up or shut-up moment” for the GOP on taxes. This is a task far easier said than done. Every special interest in Washington has a piece of the tax break pie. Hensarling wonders whether Republicans have “the intestinal fortitude to be able to do fundamental tax reform.” Yet, it’s a task which the GOP must undertake.

With a positive agenda, the Republican Congress can  develop sustainable conservative policy victories and give the 2016 Republican nominee a jumpstart on a defining vision that sharply contrasts with the Democrats’ antique, clunky notions of bigger government and central planning nearly everywhere you turn.

In the midst of a crisis of government competence, now is the time to lead with a vision for smaller government. The idea of investigating the Obama administration may be enticing. After six years in the minority, there are axes to grind. But American voters are less interested in investigations of the past than they are in visions for the future. The Republican Party has earned control of Congress. It should use it to build a home, and not get sidetracked bulldozing the ramshackle cottage of the Obama administration that is collapsing in on itself.