A Simple Question About Iran

We keep hearing from Democratic critics of Prime Minister Netanyahu’s speech that if we don’t reach an agreement with Iran, then the path will be clear for Iran to have a bomb soon.  Explicit is the idea that even a bad agreement is better than no agreement.

Hold on a minute.  Isn’t there something missing here?  I thought “all options were on the table.”  Obama has said this repeatedly.  Now he and his political allies seem to admit it isn’t true.  After all, shouldn’t Obama’s and John Kerry’s message to Iran in their Geneva talks be this simple and direct: “Either you reach a good agreement, or we bomb your nuclear sites into oblivion”?

Ah, yes: I see the obvious problem: such a threat from Obama and John Kerry has no credibility.

Still, someone should josh Earnest directly at a White House press gaggle: “So are we to understand that the use of military force against Iran is off the table?”

The Most Trusted Man in America on Climate Change

Heh.  Walter Cronkite—the Most Trusted Man in America, don’t forget—on the topic of climate change, in 1972.  Just 25 seconds long.  Heh, again: (more…)

Hillary sacked ambassador who opted for private email

Mark Hemingway of the Weekly Standard calls our attention to the case of Kenya Scott Gration, the former U.S. ambassador to Kenya. He abruptly “stepped down” in 2012, prompted by a withering evaluation from the State Department, then under the direction of Hillary Clinton.

The report found multiple concerns with Gration’s performance. One of them was the following:

Because the information management office could not change the Department’s policy for handling Sensitive But Unclassified material, [Gration] assumed charge of the mission’s information management operations. He ordered a commercial Internet connection installed in his embassy office bathroom so he could work there on a laptop not connected to the Department email system. He drafted and distributed a mission policy authorizing himself and other mission personnel to use commercial email for daily communication of official government business.

During the inspection, the Ambassador continued to use commercial email for official government business. The Department email system provides automatic security, record-keeping, and backup functions as required.

The Ambassador’s requirements for use of commercial email in the office and his flouting of direct instructions to adhere to Department policy have placed the information management staff in a conundrum: balancing the desire to be responsive to their mission leader and the need to adhere to Department regulations and government information security standards.

This report should leave no doubt that, in Hillary Clinton’s State Department, using a private email outside the State Department’s secure system was improper under Department regulations and government information security standards. As Hemingway concludes, if doing so was unacceptable for an ambassador, it certainly should be deemed unacceptable for the Secretary of State herself.

King v. Burwell, the day after

The consensus following oral argument in King v. Burwell is that the votes of two Justices are in play. Based on the questioning, it seems clear that the four-judge liberal bloc will vote to affirm the decision that Obamacare subsidies may be granted to those using the federal exchange. Justices Scalia and Alito appear set to vote to reverse that decision. Justice Thomas did not ask questions — his usual practice — but is considered a likely third vote for reversal.

This leaves Chief Justice Roberts and Justice Kennedy as the “swing” votes. To reverse — i.e., to rule that subsidies are not permissible on the federal exchange — both would have to vote this way.

Note that at least one of the two was probably inclined last year to reverse. Otherwise it’s unlikely that there would have been four votes to hear the case in the absence of a split among the Circuit Courts of Appeal. But that was then; this is now.

Chief Justice Roberts said little during the argument that can be interpreted as indicating how he will vote in King. By contrast, Justice Kennedy said a mouthful.

As I noted yesterday, Kennedy expressed serious “constitutional” concern about a system that coerces states to create exchanges as a condition of their residents being eligible for federal subsidies with which to purchase Obamacare-compliant insurance policies. The coercion stems, in Kennedy’s view, from the fact that, absent the subsidies, a “death spiral” might occur in the insurance markets of states that don’t agree to establish exchanges.

Kennedy’s concern could cause him to interpret the statute as not establishing such a coercive regime, but instead providing subsidies on the federal exchange, as the government argues.

Kennedy’s constitutional concern is unwarranted in my opinion. As Randy Barnett points out, eight states filed amicus briefs in support of petitioners. They argued that they don’t want exchanges or subsidies. These states clearly don’t feel “coerced.”

Moreover, the government didn’t raise any constitutional concern as a basis for interpreting the statute as permitting subsidies on the federal exchange. It’s true that the government would rarely question the constitutionality of a federal statute, especially the landmark statute of the current administration.

However, the government could have made the “constitutional avoidance” argument without attacking the constitutionality of Obamacare. It could simply have argued that the stature does not limit subsidies to the state exchanges and, if it had included a provision so limiting them, that provision would be unconstitutional.

The government did not make this argument, though. And yesterday, its lawyer described the argument as raising a novel issue. Perhaps he agrees with Oklahoma Attorney General Scott Pruitt that “there is no legal precedent for a finding of coercion based solely on the fact that a federal program does not work well when the states decline to assist in its implementation.”

In any event, the “avoidance” doctrine only comes into play if the statute is ambiguous. If the language of the statute is clear, it must be construed consistently with its plain meaning whether or not that construction renders the provision unconstitutional.

But what counts here is how Justice Kennedy views the matter. On this question, I recommend Ed Whelan’s “parsing” of Kennedy’s comments. At one point, Kennedy stated “it may well be that [the challengers are] correct as to these words, and there’s nothing we can do” to interpret them in a different way.” If so, the government should lose Kennedy’s vote.

Moreover, to the extent that a constitutional concern exists, what is the best way to deal with it? According to Barnett, the best approach would be to “limit subsidies to exchanges ‘established by the state,’ and then invite states who feel coerced to choose to bring a coercion challenge in the future.” Whelan finds some basis in Kennedy’s comments for believing that he might opt for this approach.

Finally, what would the remedy be if the Court found a valid constitutional concern? Do you rewrite the statute to make subsidies available in states that don’t establish exchanges? Or do you strike down the federal insurance regulations that allegedly create the “death spiral” and thereby threaten to “destroy” state insurance markets unless states set up exchanges?

Barnett argues that the latter remedy makes more sense.

At the end of “day after,” we see that this case has plenty of moving parts including, let’s not forget, how Chief Justice Roberts views these matters. In the previous Obamacare case, Roberts decided that it would be unconstitutionally coercive for Congress to tell the states that unless they accept the extension of Medicaid, they will lose their Medicaid funding.

Perhaps the Chief Justice sees a similar problem here. Perhaps, as liberal law professor Noah Feldman speculates, Justice Kennedy was trying to convince Roberts that such a problem exists, so that Kennedy’s vote will not be the one that saves Obamacare.

The outcome of King v. Burwell is in doubt, but the odds seem to favor the government.

Old Americans for Freedom

The Wall Street Journal’s “Notable and Quotable” section this morning reminds us that M. Stanton Evans was the author of the “Sharon Statement,” the founding manifesto of Young Americans for Freedom. It is called the “Sharon Statement” because it was adopted at a meeting at William F. Buckley’s home in Sharon, Connecticut. I was not even two years old at the time of its writing, so I took no notice of it then, but I came to know a number of people who were there, “present at the creation,” so to speak.   A few of them are faithful readers of this site (you know who you are out there, M.U.!), and perhaps now wish to be known as Old American for Freedom.

In any case, the Journal excerpts some of the Sharon Statement, but it is compact enough that it is worth posting the whole thing here for anyone who may not have ever seen it:

“The Sharon Statement”

Adopted in conference at Sharon, Connecticut, September 11, 1960

In this time of moral and political crises, it is the responsibility of the youth of America to affirm certain eternal truths.

We, as young conservatives, believe:

That foremost among the transcendent values is the individual’s use of his God-given free will, whence derives his right to be free from the restrictions of arbitrary force;

That liberty is indivisible, and that political freedom cannot long exist without economic freedom;

That the purpose of government is to protect those freedoms through the preservation of internal order, the provision of national defense, and the administration of justice;

That when government ventures beyond these rightful functions, it accumulates power, which tends to diminish order and liberty;

That the Constitution of the United States is the best arrangement yet devised for empowering government to fulfill its proper role, while restraining it from the concentration and abuse of power;

That the genius of the Constitution—the division of powers—is summed up in the clause that reserves primacy to the several states, or to the people, in those spheres not specifically delegated to the Federal government;

That the market economy, allocating resources by the free play of supply and demand, is the single economic system compatible with the requirements of personal freedom and constitutional government, and that it is at the same time the most productive supplier of human needs;

That when government interferes with the work of the market economy, it tends to reduce the moral and physical strength of the nation; that when it takes from one man to bestow on another, it diminishes the incentive of the first, the integrity of the second, and the moral autonomy of both;

That we will be free only so long as the national sovereignty of the United States is secure; that history shows periods of freedom are rare, and can exist only when free citizens concertedly defend their rights against all enemies;

That the forces of international Communism are, at present, the greatest single threat to these liberties;

That the United States should stress victory over, rather than coexistence with, this menace; and

That American foreign policy must be judged by this criterion: does it serve the just interests of the United States?

If you merely update the reference to Communism by swapping it out with radical Islam, you’d have a perfectly serviceable manifesto for today.  Which is rather the point of conservatism.

By the way, over on Twitter I’ve been posting periodically some of Stan’s better one-liners, such as:

When you’re young, you should be conservative. And then as you get older, you should become . . . more conservative.

That government is best which McGoverns least.

Hillary: Go Ahead, Show Them the Emails!

In a typical burst of Clintonian chutzpah, Hillary tweeted yesterday:

I want the public to see my email. I asked State to release them. They said they will review them for release as soon as possible.

Of course, if she really wanted the public to see the emails she sent and received as Secretary of State, all she had to do was follow the relevant laws and procedures, and use the State Department’s email accounts. Had she done that, emails requested by various committees presumably would have been produced long ago.

It is hard to think of any reason why Hillary would set up a private email server for herself and her top aides, other than a desire to keep at least some of the emails secret. Using her own server put responding to requests for emails under her control, rather than the State Department’s. At this stage, the Department can respond to Hillary’s call to release her emails only by making public the emails that Hillary gave the Department in the first place:

State Department spokeswoman Marie Harf said in response to Clinton’s tweet that the department will review for release the emails Clinton provided. Harf said it could take some time to review.

It isn’t clear why it will take much time, since Hillary says she didn’t send or receive any classified emails.

At least one reporter was enterprising enough to ask John Kerry whether the State Department ought to be seeking additional emails from Mrs. Clinton:

Speaking in Riyadh, Saudi Arabia, Kerry was asked if the department should look at emails outside those already provided by Clinton. He said he thought the department had all the emails related to the State Department but said he would check.

In fact, the Department has whatever emails Hillary has decided to turn over–no more, and no fewer. If any of them were really embarrassing, they presumably were deleted long ago–the whole point of having your own private server for State Department business. This is what passes for transparency in Clinton World.

Triumph of the leftist will

The Supreme Court held oral argument in King v Burwell yesterday. The Supreme Court has posted the transcript of the oral argument here.

At issue in King is the legality of the IRS’s provision of tax credits in Obamacare exchanges established by the federal government. As Professor Jonathan Adler writes in USA Today, the case “presents a straightforward case of statutory interpretation.” As such, it’s not a hard case; it’s an unbelievably easy case. Professor Adler explains:

The statute is clear on this point. Tax credits are available in exchanges “established by the state,” and the federal government is not a state. Were there any doubt on this point, the law defines “state” to mean one of the 50 states and the District of Columbia. The Department of Health and Human Services is not a state.

So how can the plaintiffs lose this case, as I believe they are likely to do? The closest analogue of this case and its likely outcome — the closest analogue of which I am aware, anyway — seems to me United Steelworkers v. Weber (1979). The oral argument in Weber is posted online here.

In Weber, a white steelworker had sought admission to a craft training program, jointly sponsored by his employer and his union, from which he was excluded by a racial quota. As of the publication of The Color-Blind Constitution in 1992, from which I am borrowing this summary, Andrew Kull believed that Weber presented the strongest “reverse discrimination” challenge ever heard by the Supreme Court because Brian Weber’s precise complaint had seemingly been anticipated, debated and resolved in his favor by the 1964 Civil Rights Act. Professor Kull drily observes: “One specific provision of Title VII might almost have been written to cover the facts of the case.” Like Jonathan Adler, Professor Kull quotes the relevant statutory provision to prove his point:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee…to discriminate against any individual because of his race, color, religion, sex,or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

Professor Kull recalls the result, recapitulating the decision more concisely than the Court speaking for itself:

Justice William J. Brennan, writing for a five-to-two majority, could not and did not controvert Justice William H. Rehnquist’s demonstration that Congress in 1964 had intended, by this and other language in Title VII, to prohibit the quota that excluded Brian Weber. His central contention was rather that the color-blind means chosen at the time did not serve the underlying congressional objective, which he identified as the desire to improve the economic position of black workers. It followed that the statute’s true purpose would be served by refusing its enforcement.

Brennan piously intoned the proposition: “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Brennan was the keeper of the “spirit,” which was a pure triumph of the leftist will, 1979 edition. In tune with the times, the Supreme Court, I am afraid, stands poised to give us the 2015 edition supporting the gospel according to Barry.

FOOTNOTE: I want to reiterate that to summarize Weber I have drawn directly from Andrew Kull’s The Color-Blind Constitution, one of my all-time favorite books on the law.