Marie Harf explains

State Department spokesman Marie Harf makes me barf. Harf is the deputy to State Department spokesman Jen Psaki; Psaki makes me barf too, even though her name lacks the clue of the perfect rhyme. Together the two of them give the catastrophic foreign policy of the Obama administration a lighter than air, Valley Girl kind of twist. With them we can smile through the apocalypse.

In the video below, Harf speaks up for the United Nations organization whose good works in Gaza include the return of Hamas missiles found in UN schools to Hamas authorities. The Times of Israel reports that more missiles were found in another such school yesterday. What are they teaching them in those schools anyway?

In the video AP State Department reporter Matthew Lee grills Harf on the internal contradictions of Harfism.

Video via Adam Kredo/Free Beacon.

Friends of Hamas

Hamas has proved itself to be unusually isolated in its current war on Israel. The powers-that-be in Egypt, for example, have not lifted a finger to come to the assistance of Hamas. This all by itself proves the superiority of the Sissi regime to that of Morsi, but if one has a clue about the nature of the Muslim Brotherhood, from which both Morsi and Hamas emerged, this not exactly a shock. Yet Saudi Arabia has left Hamas to its own devices, as has the UAE. Stepping forward to lend a hand to Hamas are Qatar and Turkey.

The isolation of Hamas is a striking development, but most striking are the emergence of Hamas’s good friends: Barack Obama and John Kerry.

Going back to his Cairo speech in the early days of the Obama administration, Obama has stood out as an old fan of the Muslim Brotherhood. See here (Marc Ambinder), here (FOX News), and here (American Thinker).

The Muslim Brotherhood is of course a progenitor of Islamic radicalism (see, e.g., Lawrence Wright, The Looming Tower) Hamas is an offshoot of the Muslim Brotherhood. In this sense (among others) it should come as no surprise that Obama is a sap for Hamas.

We have found Obama reliably to take the side of the enemies of the United States while stabbing our friends in the back. This is a phenomenon that took shape in the first days of the Obama administration.

Now Obama and Kerry are working to shut down Israel before its forces attain their goals in the current hostilities. Obama’s public consternation over civilian casualties is a pure reflection of Hamas tactics and propaganda. Putting to one side the difficulty of identifying true civilian casualties, Obama blames Israel for whatever civilian casualties result form Hamas’s placement of men, tunnels and materiel among civilians in homes, hospitals and mosques. Hamas also does its considerable best to keep the civilians in harm’s way.

Obama mentions none of this, and we now know (as a result of Kerry’s open mic incident on FOX News Sunday earlier this week) that John Kerry blames Israel for civilian deaths in Gaza as well. He attributes them to the Israelis’ lack of precision in their current operation.

The Israelis may get credit in heaven for their extraordinary efforts to avoid civilian casualties — the warning leaflets, the knocks on the roof, the cell phone calls and messages, and so one — but they get none from the Obama administration.

Kerry is now in the area seeking to engineer a ceasefire. His presence is obviously unwanted by Israel. On this point we can take the word of former Israel Ambassador to the United States Michael Oren. Kerry is undermining Israel and encouraging Hamas.

Yesterday the FAA prohibited commercial flights to Israel’s Ben Gurion Airport outside Tel Aviv, thus handing Hamas a great victory and upping the stakes for Israel. The AP notes, Kerry himself flew into Ben Gurion today after the FAA action. Some European airlines are following suit. El Al continues to fly into Ben Gurion. Last night, as Jeff Dunetz observes, Israeli Prime Minister Benjamin Netanyahu appealed to Kerry to rescind the ban.

Noah Pollak points to the peculiar timing of the FAA action:

Long-range rocket fire from Gaza has been dramatically curtailed in recent days by the IDF’s ground operation, and was heaviest at the beginning of the war – some two weeks ago. Despite Hamas and Islamic Jihad barrages of M75 and M302 rockets fired at Tel Aviv and Jerusalem on July 8th, 9th, and 10th, no travel warning was issued.

Jeff also notes that Michael Bloomberg is flying into Ben Gurion in a show of support for Israel. Bloomberg has posted this statement:

This evening I will be flying on El Al to Tel Aviv to show solidarity with the Israeli people and to demonstrate that it is safe to fly in and out of Israel. Ben Gurion is the best protected airport in the world and El Al flights have been regularly flying in and out of it safely. The flight restrictions are a mistake that hands Hamas an undeserved victory and should be lifted immediately. I strongly urge the FAA to reverse course and permit US airlines to fly to Israel.

Bloomberg understands that the United States has handed Hamas a great victory in the current war. The Daily Mail includes Bloomberg’s tweets to this effect in its story on developments yesterday.

John Podhoretz weighs the consequences of Hamas’s success in his New York Post column this morning. Observing the Obama administration’s efforts to engineer a ceasefire while Israel has yet to attain its objectives in the conflict, Caroline Glick notes with considerable understatement:

[T]he fact that the US has chosen at this juncture in the operation – with Israel enjoying unprecedented support from the most important Sunni states in the region – to side with Hamas and its state sponsors in their demand for an immediate cease-fire speaks volumes about the transformation of US foreign policy under Obama’s leadership.

The efforts of Obama and Kerry on behalf of Hamas — their efforts to stop Israel short of its goals in the current conflict — come as no surprise, but they shouldn’t pass without comment either.

Is Hillary Clinton washed up?

Robert Merry is a veteran Washington journalist. John and I had lunch with him once when he was in charge of Congressional Quarterly. It was a pleasant encounter, though he seemed disappointed and perhaps a little bit put off by our support for the war in Iraq.

Merry is also a historian and a scholar of the presidency. He wrote a rather good biography of James Polk and a flawed but worthwhile attempt to rate America’s presidents.

Accordingly, Merry’s assessment that “Hillary Clinton isn’t likely ever to become president of the United States” is worthy of our attention.

Actually, Merry views Clinton’s prospects as dimmer than his introductory sentence suggests. He continues:

[T]here is a greater possibility than is generally recognized by the Washington cognoscenti that [Clinton] won’t even run. If she does, though, the barriers she faces will prove overwhelming. Her 2008 campaign was her last good shot for the office, and she failed. Since then, numerous developments have conspired steadily to diminish her prospects. Those prospects are now near zero.

Merry’s premise is that “politics is always about the future.” This reality, he says, all but dooms Hillary Clinton because she “is a product of the past.”

I dispute the view that politics is always about the future. The past can hold great sway over presidential elections, as it did for many years after 1864 and 1932, for example.

In fact, Merry seems to acknowledge that the importance of the past in presidential politics fluctuates, and he eventually settles on the more modest — and I think correct — claim that the past will count for little more than the nightmarish backdrop for the 2016 election:

The country is at an inflection point brought on by its crisis of political deadlock. It desperately needs a new brand of politics that can break the deadlock and set it upon a new course toward its future and destiny.

In such times, a gap normally opens up between the political establishment, guided by the lessons of the past, and the electorate, always ahead of the establishment in pushing for new political paradigms, new dialectical thinking and new coalitions. In the campaign year of 2016, the voters, angry and anxious, appear poised to grab power away from the establishment and invest it in candidates of the future.

If so, Mrs. Clinton isn’t going to be able to withstand these winds of change. Her recent autobiography betrays a politician seemingly devoid of fresh thinking or even a recognition of what kind of political message is required by the temper of our times. In some eras of our political past, this wouldn’t have been a handicap. In today’s political climate, it is likely to be fatal.

There’s considerable insight here, I think.

In 2016, the U.S. will have endured 16 consecutive years of what Americans consider, rightly or wrongly, failed presidencies. This may well be enough to create an “inflection point,” to borrow Merry’s phrase. Twelve years of failed presidencies — from 1965 through 1976 — were enough to produce Jimmy Carter. The added four years of his failed presidency were enough to produce Ronald Reagan.

Moreover, eight years of Bill Clinton’s flawed presidency coupled with eight years of what most considered the failed presidency of George W. Bush produced Barack Obama.

The point? Years of perceived presidential failure and/or excessive drama tend to cause the electorate to think outside the box in selecting a new president. We tend to elect inside the box type presidents — Lyndon Johnson, Richard Nixon, George H.W. Bush, and George W. Bush — when the system is viewed as having generated less failure.

One can’t conceive of a more inside the box presidential candidate than Hillary Clinton. This reality, coupled with the closely related fact that she is so connected to the past, will likely pose a major challenge if she seeks the presidency.

Drafting error vs. poor draftsmanship

Obamacare by its express and unambiguous terms limits Obamacare subsidies to people using health care exchanges “established by the State.” Thus, subsidies to people in the federal exchange are not permitted, as these exchanges obviously are not established by the State.

However couched, the argument that subsidies should nonetheless accrue to people in the federal exchange boils down to the notion that the limiting language of the statute is the result of “drafting error.” This must be so, leftists argue, because otherwise Congress included in Obamacare the seeds of its own destruction, giving governors who choose not to establish exchanges the power to kill this law. Accordingly, courts should take whatever liberties are necessary to avoid the absurd product of mere drafting error.

But the “error” at issue here (if there was one) is not a simple case of drafting error.

What would a simple drafting error look like? A legislature might create special lanes for rush hour traffic to be used only by cars with 4 or more passengers between the hours of 5:00 p.m. and 6:30 p.m. As a result of drafting error, the final bill might make these lanes available only to cars with 40 or more passengers. Or it might make the lanes available between the hours of 5:00 a.m. and 6:30 a.m.

Even in this instance, the best judicial course is to let the legislature correct its error. But if the error is manifest from, say, the legislation’s conference report and/or the floor debate, there is no harm in a court correcting the error.

But suppose there is evidence that the legislators were concerned about traffic jams that occur as early as 4:30 and as late as 7:00. Or suppose the legislation contains a funding provision grossly inadequate to construct the new traffic lanes.

One could call the use of excessively restrictive time parameters or the impossibly low level of funding drafting errors, but they are more accurately described as poor draftsmanship. The faulty provisions appear in the legislation not by accident but by intent. A moment’s reflection might well have led to their exclusion or deletion, but if so, that moment never occurred.

In this situation, it is clearly improper for a court to “fix” the legislation. Courts do not serve as editors for lawmakers. They must give effect to what legislators write into law, not what they would have written if they were more thoughtful.

Correcting for typos is one thing. Nullifying provisions intentionally (if mistakenly) written into law is quite another.

I should add that in the case of Obamacare, it is far from clear that the provision in question here — the one that limits subsidies to individuals in state exchanges — actually slipped into the law as a result of negligent drafting. Andy McCarthy makes the case that Congress knew what it was doing here. Ramesh Ponuru does so on here.

But it doesn’t matter whether the provision appears in Obamacare because Congress was half-witted or too clever by a half. The provision exists, and it is illegitimate for a court to nullify it.

HBO, Beyond the Pale

HBO has done some good things, like Rome and Game of Thrones. But this is one of the most appalling things I have seen in a long time. There is an HBO program called “True Blood” that apparently is about vampires–way to be cutting edge, right? In its most recent episode, it featured a Ted Cruz fundraiser at the George W. Bush presidential library. In the clip below, you can see the characters discussing the fact that only “assholes” are going to the Ted Cruz event, while a woman, having dressed for the event, describes herself as a “Republicunt.” The clip concludes with a vampire saying that of all the horrible things he has seen in the last 100 years, the Ted Cruz fundraiser is the worst.

First the video, then some comments:

1) The show’s producers invited Sarah Palin to appear in the episode, apparently for additional “Republicunt” titillation. She declined. These people are beneath beneath contempt.

2) Every time you think the culture can’t possibly sink any lower, it does. But the decline is not uniform: it is inconceivable that any commercial media outlet would describe those who attend a Hillary Clinton fundraiser as “assholes,” or refer to “Democunts,” or whatever the word might be. If, by some chance, such a thing were to happen, it is impossible to imagine the outrage that would follow. That wouldn’t be just a war on (liberal) women, it would be gender genocide.

3) Outrages like this one can’t be attributed to commercial motives. Why would producers of a television program deliberately alienate at least 1/3 of their potential viewers? Well, OK, it is probably less than a third–Republicans aren’t likely to be watching a dumb show about vampires who use bad language in the first place. But still: by any calculation of profit and loss, it is stupid to antagonize members of either major party. This kind of thing is purely ideological.

4) What is it about Ted Cruz? In a very short time, he has achieved a sort of heroic status on the Left. It is greatly to his credit, but I can’t quite figure out how he has done it. Among liberals he seems to be code for something, I am not sure what.

5) There is a serious purpose behind this demonization of Republicans. Many have wondered how the Obama administration keeps its head above water, given its awful record. Likewise, how does a party led by such laughable figures as Harry Reid and Nancy Pelosi remain competitive in Congress? Democrats can’t talk about their records, so they do what they can: they demonize Republicans. While “True Blood” is an extreme instance, a large proportion of “mainstream” news reporting serves the same purpose. The Democrats may be bad, the media want ill-informed voters to say, but at least they aren’t Republicans! Or Republicunts, a term that is perfectly acceptable within a certain degraded demographic–a demographic that votes overwhelmingly Democratic.

What’s next after Obamacare’s defeat in Halbig v. Burwell? [updated]

As Steve has noted, the U.S. Court of Appeals for the District Columbia today invalidated the IRS regulation that provides for insurance subsidies to millions of lower-income Americans using the federal Obamacare exchanges. The ruling means that in 36 states, Obamacare subsidies will not be available, making its insurance coverage unaffordable to many Americans and potentially crashing the system.

The Court’s ruling, by a vote of 2-1, is clearly correct. The statute expressly limits federal subsidies to health insurance exchanges “established by the State.” A federal exchange is manifestly not an exchange established by the State.

It is not the proper role of courts to rewrite statutes to make them better comport with how Congress may have intended them to operate. That’s the self-appointed job of administrative agencies, and it’s not a proper role for them either.

As an old-time Maryland judge once wrote, if the legislature didn’t intend for a statute to mean what it says, it should have said so.

Nancy Pelosi didn’t say so. Instead, she said Congress needs to pass Obamacare to find out what’s in it. Congress passed the law, we found out what’s in it, and the contents do not include subsidies for those using the federal exchange.

Pelosi may get the next laugh, however. There’s a decent chance the decision will be reviewed en banc — i.e. by the full D.C. Circuit. That court was recently “packed” when Harry Reid changed the age-old rules for confirming judges below the Supreme Court level to effectively preclude filibusters.

The result is three new left-wing judges on the D.C. Circuit. They are prepared, presumably, to rubber-stamp almost anything Obama desires, and certainly to ignore the plain language of Obamacare in order to sustain the president’s signature legislation. Their votes could prove decisive in overturning today’s 2-1 ruling.

Will the Supreme Court become involved? Probably not until a Court of Appeals rules definitively as the D.C. Circuit ruled today — in other words, only if today’s ruling avoids or survives en banc review or another appeals court reaches the same result and it avoids or survives such review.

Absent a court of appeals ruling disturbing the status quo, the Supreme Court is not likely to inject itself into this dispute. Indeed, the Supreme Court might act even more cautiously and wait for a split among the Circuits.

What can we expect from the Supreme Court if it reaches the subsidy issue? My guess is that Obamacare is already sufficiently entrenched (and will be even more so when/if the Supreme Court rules) that a Supreme Court majority willing massively to disturb the operation of the Act will be hard to come by.

That, at least, is how things seem to me at first blush.

UPDATE: How does en banc review work in the D.C. Circuit? The standard for obtaining such review requires either a lack of uniformity in panel decisions (which isn’t present here) or a question of exceptional importance. It’s easy to argue that Halbig presents such a question. Thus, although en banc review is rare in this Court (as in most), the standard won’t be a hurdle for judges who desire en banc review.

Only the “active” judges of the D.C. Circuit decide whether to hear a case en banc. And only the active judges, plus any senior judges who were on the original panel, are eligible to hear a case en banc. This is unfortunate because this particular court is full of excellent conservative senior judges.

Among the non-senior judges, though, the majority is now decidedly liberal, thanks to Harry Reid’s court packing. Of the 11, only Judges Henderson, Brown, Griffith, and Kavanaugh were appointed by a Republican president.

Two of the judges on the panel that decided Halbig are senior. Of the two, Ray Randolph was in the majority and Harry Edwards dissented. So in the event of en banc review, they will cancel each other out, leaving the liberal majority of active judges in control of the outcome.

Dueling Appellate Court Opinions on Obamacare: Where Do We Go From Here?

This morning, as Steve noted earlier, a panel of the D.C. Circuit Court of Appeals held, in Halbig v. Burwell, that the Affordable Care Act does not permit the federal government to subsidize persons who enroll in exchanges run by the federal government, as opposed to a state. Just two hours later, a panel of the 4th Circuit Court of Appeals ruled the other way on exactly the same issue in King v. Burwell. A great deal hinges on this: I believe everyone agrees that if the federal government cannot subsidize participants in the federal exchange (which covers 36 states), Obamacare will collapse.

The issue is one of statutory construction: what did Congress intend? Where a statute is unambiguous, there is no further inquiry; Congress intended what it wrote. The D.C. Circuit opinion explains succinctly plaintiffs’ argument that the ACA clearly authorizes subsidies only for the state exchanges:

Section 36B of the Internal Revenue Code, enacted as part of the Patient Protection and Affordable Care Act (ACA or the Act), makes tax credits available as a form of subsidy to individuals who purchase health insurance through marketplaces—known as “American Health Benefit Exchanges,” or “Exchanges” for short—that are “established by the State under section 1311” of the Act. 26 U.S.C. § 36B(c)(2)(A)(i). On its face, this provision authorizes tax credits for insurance purchased on an Exchange established by one of the fifty states or the District of Columbia. See 42 U.S.C. § 18024(d). But the Internal Revenue Service has interpreted section 36B broadly to authorize the subsidy also for insurance purchased on an Exchange established by the federal government under section 1321 of the Act.

In order to win, the government has to read the phrase “established by the State” out of the statute. It is noteworthy, however, that the D.C. Circuit did not stop with the plain language of the law. It considered, and rejected, the government’s argument that applying the statute literally leads to absurd results–odd, perhaps, but not absurd. You can read the court’s opinion, both the majority and the dissent, here:

DCCirACA

The 4th Circuit opinion says that the statute is ambiguous, despite the seemingly-clear phrase, “established by the State.” It goes on to consider various ways of reconciling the ambiguity, concluding that the government has the better of the argument, albeit not decisively. The decision, then, rests on the principle of deference to an administrative agency (the IRS) if the agency’s interpretation of the statute is a reasonable one. (For thoughts on the baleful results of that principle, see our ongoing series, “Is Administrative Law Unlawful?”) Here is the 4th Circuit’s opinion:

4 Th Circuit Aca

It seems clear that this issue is headed for the Supreme Court. There may be an intermediate stop in the D.C. Circuit, as the entire court may choose to re-hear the case. If that happens, we may see the fruit of Harry Reid’s demolition of the filibuster rule. The Democrats desperately wanted to stack the D.C. Circuit with liberal judges, but were restrained from doing so by the need to marshal 60 votes for confirmation. With the filibuster out of the way, the Democrats needed only 51 votes for confirmation, and the court now has a 7 to 4 Democratic majority.

If the D.C. Circuit does re-hear the case en banc, it may reverse today’s panel decision. If that happens, there will no longer be a split between the circuits, but one would think the Supreme Court will take the case regardless. In that event, we may be back in familiar territory, with Justice Anthony Kennedy deciding what Congress had in mind. If you think that discerning Congress’s intent is, in this case, a fool’s errand, since no one in Congress had read the law before voting on it, you are probably right. Which is one reason why courts look to the words of a statute rather than to the subjective intentions of 535 legislators. Given that Justice Kennedy was willing to deal Obamacare what he thought was a death blow under the Commerce Clause, Democrats cannot view their ultimate prospects with much confidence.