Over the past few years, Jack and I have had a friendly disagreement about how to characterize the Obama presidency. I've argued that Obama was a reconstructive president (in the mode of Ronald Reagan or Andrew Jackson) who was in the process of creating a new constitutional regime. Jack has taken the view that President Obama is a preemptive president (more like Bill Clinton), who takes opportunities when he can but has not fundamentally changed the political order. I based my view on the President's broad victory in 2008, the enactment of the Affordable Care Act in 2010, and the fact that he was reelected in 2012 and held the Senate majority for his party.
How is my prediction looking now? Pretty not good. The issue is not that the the Democrats lost the Senate this time around. Republicans lost the Senate in 1986, after all, and that did not mean that the Reagan Revolution was dead. One reason why Obama's legacy is shaky is that Affordable Care Act, his signature achievement, is now in peril again before the Supreme Court. If King goes against the Administration, then that's a big political and policy blow. (We'll see--of course.)
The other reason, which I've mentioned here before, is that the best case scenario for the President is that his successor will be his primary opponent from 2008. It is unprecedented in modern times for a two-term leader to be succeeded by a rival within his own party (as opposed to a loyal ally). Exactly what was the 2008 primary race about if Hillary Clinton is elected in 2016?
Exactly what was the 2008 primary race about if Hillary Clinton is elected in 2016?
ReplyDeleteWhile I agree with your larger point that, generally speaking, transformative presidents are followed by their allies, I think this sentence is a bit unfair.
The 2008 primary was, to a substantial extent, about the war in Iraq. Obama has made that a non-issue, and Hilary's stupid vote in favor of the war will be long in the past by 2016.
Second, when Hilary agreed to become SS under Obama, she became an "ally" in most senses of the word. Both are slightly left of center and both support very similar policies (even in 2008 it was hard to distinguish them outside of the Iraq vote).
Overall, though, I think Prof. Balkin won this debate.
"It is unprecedented in modern times for a two-term leader to be succeeded by a rival within his own party (as opposed to a loyal ally)."
ReplyDeleteDidn't George H.W. Bush run against Reagan in the 1980 Republican primaries?
"It is unprecedented in modern times for a two-term leader to be succeeded by a rival within his own party (as opposed to a loyal ally)."
ReplyDeleteDidn't George H.W. Bush run against Reagan in the 1980 Republican primaries?
I think Mark Field is right about the specific issue the 2008 primary turned on, and I think that can be generalized, if Clinton wins in 2016, to "the 2008 primary was about making Clinton more dovish" both in her understanding of where her party and the electorate stand in general on international adventures and in putting her in a diplomatic position that, one hopes, has influenced her international views in a positive direction.
ReplyDeletePerhaps Jack Balkin will present his view of this "friendly disagreement," assuming it existed (other than in Gerard's mind). Perhaps Gerard can note his posts at this Blog or at his CO blog relating to this "friendly disagreement."
ReplyDeleteBut Bush was Reagan's Vice-President. In other words, he totally bought into Reagan's program. (Switching from pro-choice to pro-life, for instance.) I don't think that's comparable to being Secretary of State.
ReplyDeleteI agree with Mark Field that Hillary could be characterized as an Obama ally, though at this point she is more likely to run as a frenemy. But I think Mark is kidding himself if he thinks that the war in Iraq, including though hardly limited to Hillary's 2003 vote, will be a non-issue in 2016.
ReplyDeleteI'm not sure who will have an issue with the Iraq War in 2016. It certainly seems to be a non-issue now (recent troop increases notwithstanding) and of course it could become an issue as a result of events in the next 2 years. But as long as it stays at today's level, I doubt liberals will boycott Hilary for that reason and I don't see who else would change a vote because of it.
ReplyDeleteWhether Hilary runs as a "frenemy" is harder to call, I think. Partly that depends on the economy. But important segments of the Dem base are very loyal to Obama, and Hilary can't alienate them, especially with the example of Gore as a cautionary tale.
I would say there is a distinction without a difference between Reagan's vice president and Obama's secretary of state. In both cases, the leading rival was drawn into the administration. Also, Bush was far more antagonistic toward the Reagan program in 1980 -- remember "Voodoo economics" -- than Clinton was toward Obama in 2008.
ReplyDeleteThe 2007-08 rivalry between Clinton and Obama was more personal than ideological, unlike Bush and Reagan in 1980.
If anything, it was Obama who adopted some of Clinton's positions following his election: the individual mandate in the ACA, which he had opposed during the primaries, and a more hawkish foreign policy.
Let's take a closer look at Gerard's:
ReplyDelete" One reason why Obama's legacy is shaky is that Affordable Care Act, his signature achievement, is now in peril again before the Supreme Court. If King goes against the Administration, then that's a big political and policy blow."
But such a "big political and policy blow" may result in significant blowback against the conservative Court AND the GOP, eventually leading to a single payer system that should have been enacted in the first place as long overdue. Suck "blowback" may raise voter concerns with "their" Social Security, Medicare, Medicaid and other "progressive," "socialist," legislation providing voters with safety nets. Is it possible that Gerard shares the views of our CO "dopey-ganger" on "The Gilded Age" or is he reacting to the winds of paternity leave?
But I rather hear Jack's views directly as this sounds like a tempest in a teapot.
"Exactly what was the 2008 primary race about if Hillary Clinton is elected in 2016?"
ReplyDeleteWell, duh. It was about a bunch of people paradoxically attempting to prove to themselves they weren't racists, by voting for the inexperienced cipher just because he was black. Though I will admit that Hillary was quite capable of making an inexperienced cipher look somewhat attractive.
I think the lesson here is that projection is a much safer way of dealing with those particular issues. At least the nation has gotten THAT out of its system, and can evaluate the next black Presidential candidate on their merits.
Brett has come out of the woodwork as a Koch-head, naturally. No more attempts any longer to try to hide his real reasons for his hatred of Pres. Obama. Perhaps his history of growing up in racist northern Michigan started him on his personal fears of his inferiority. I'd guess that Brett still has Jim Crow flowing through his veins.
ReplyDeleteBarack Obama's one big achievement is the Affordable Care Act. It reflects the policy Hillary Clinton proposed in the 2008 primary. She - and any other Democrat who might run - owns the legacy and must defend it against the circling sharks.
ReplyDeletewhy on earth are you buying the media line that Hillary is the nominee ?
ReplyDeletethe media after all are *for profit*; they tell storys, and Hillary is next is an easy story to tell; reporters and editors don't even have to work hard or think to get copy in
remember 2008 ? against a young nobody, hillary was trounced
and she was trounced cause she isn't very good, either at the nuts and bolts of campaigning or at being a presence on TV; the more people see her, the less they like her
"No more attempts any longer to try to hide his real reasons for his hatred of Pres. Obama."
ReplyDeleteOk, first of all, there aren't a lot of people I actually "hate", and Obama has never made the cut. Despise? Sure. Contempt? Check. Hate? Nah.
What I don't like about Obama is that he combines a manifest incompetence at anything except campaigning, with an apparent conviction of his own invincible competence. His own entitlement to get his own way regardless of governmental structure or law.
If noticing that a part term junior Senator with zero executive experience was grossly unqualified to be President makes me a racist, guilty as charged. But I don't think that's the actual definition of the word.
The "shaky" nature of ACA is questionable.
ReplyDeleteFirst, of course, the lousy challenge has to win. Next, even parts of the law is a big deal. So, complete Medicaid expansion would be great. Even voluntary did a lot.
This lawsuit directly only hurts states that don't willingly take part. Many states want too. Then, there are other provisions like adding those under 27 etc. to plans that people support too. Thanks Obama and company.
Now, I think it's possible that ACA as a whole is just a way station to more anyway. I also agree with a comment that SOS is pretty supportive of your opponent, who she opposed less than Bush did with Reagan anyway.
The successor thing reminds me a bit of people saying v.p.s didn't follow presidents (putting aside death) for quite some time. Then, Bush41 was elected. I'm not quite sure how 2016 will work out even regarding candidates.
Hillary Clinton seems probable but I'm not totally sure about that. The Republican candidate is something of a joker. Metaphorically speaking.
Anyway, Obama did have some other accomplishments. History might say his biggest move was support of gay rights. And, HC wasn't really "trounced." It was rather close and she was hurt by how delegates were alloted. Mark Penn did her no favors, granted.
http://en.wikipedia.org/wiki/Democratic_Party_presidential_primaries,_2008
I've argued that Obama was a reconstructive president (in the mode of Ronald Reagan or Andrew Jackson) who was in the process of creating a new constitutional regime. Jack has taken the view that President Obama is a preemptive president (more like Bill Clinton), who takes opportunities when he can but has not fundamentally changed the political order. I based my view on the President's broad victory in 2008, the enactment of the Affordable Care Act in 2010, and the fact that he was reelected in 2012 and held the Senate majority for his party.
ReplyDeleteGerard, you were correct that Obama was creating a new constitutional regime, but not for the reasons you cited.
In a progressive political economy, elections mean little. You measure the success of progressive presidents on the extent to which they eliminate the constitutional limits on progressive government. Governments come and go, but destroyed constitutional limits on government power rarely return.
Obama has established the precedent that Presidents can decree their own law through the bureaucracy in direct violation of the laws of Congress. (Immigration and Obamacare).
Obama has established the precedent that the government may nationalize and direct businesses. (Chrysler, GM and to a lesser extent Fannie and Freddie).
Obama has reestablished the precedent that the President can start wars without a declaration of war/AUMF.
Obama has reestablished the precedent that the President may veto a budget he does not like than then appropriate the tax money he pleases to fund the programs he pleases.
Obama and the Democrat Congress established the precedent that Congress may create a bureaucracy which future Congress's are forbidden to eliminate. (IPAB)
By these measures, Obama is the most successful progressive president after FDR with no close third place.
Using the expression 'constitutional' in the old sense of the character of a regime, some items:
ReplyDelete* Every African American and etc voter will remember deeply that this is the first African American President, and that he appointed two AGs who shared his skin color and fought the good fight for domestic civil rights. This is enough to latch on to the meaning and history of 'reconstruction' in its most evident US (constitutional) historical sense.
* The coalition that Obama generated and which elected him is the first great 'multicultural' coalition in US history. The surfing conditions have been around since Lee Atwater and before, but it is Obama that learned how to surf; and every successful subsequent Democratic presidential candidate will have to hang ten with his style. Call it mere demographics, but Obama presided over it. Nothing faintly comparable is evident since the old Roosevelt-Humphrey-Mondale coalition came apart.
* Even if the ACA is gutted in the next couple of months, it will have to be put back together with the parts Obama forged with his historic majority, however ugly this was. If HRC gets credit for this eventually, it will be because she is the Bush following the Reagan, and not the wildly ambitious first lady of an earlier failed attempt. The history books will have to call Obama the Beveridge of US history. There is now no one else no matter what happens who will be able to compete.
* The Obama era is that which coincided with Citizens United. This may be a reversion to gilded age re-de-construction, but it is a constitutional earthquake.
* The above remarks about the Obama coalition demonstrate the basic convergence of the US with the European traditional left-right framework in that now and forever, the party of big capital is also the structural party of ethno-national or native resentment. This is a huge change in the 'constitution' in this larger sense, comparable only perhaps with changes that came with the Civil War.
Thus, despite our Autumn of discontents: 'reconstructive.'
In a sense, the last 15 years of highly partisan, unprecedented and corrupt SCOTUS decisions (Bush v. Gore, Shelby v. DoJ, Halbig, Hobby Lobby), along with the voter purges could actually be signs of a constitutional realignment. The GOP justices have realized that they can't win on key issues lawfully and democratically, so they are just voting their party.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteGerard: One reason why Obama's legacy is shaky is that Affordable Care Act, his signature achievement, is now in peril again before the Supreme Court.
ReplyDeleteObamacare is not in danger because of the whims of the Supreme Court, but rather is unworkable because of the internal contradictions Obama and the Democrat Congress designed into the law.
Here are a small number of the many design flaws:
The government mandated that all heath insurance dramatically expand coverage, but required that premium increases be capped below the cost of the new coverage. This compelled insurers to raise deductibles to insane levels, effectively preventing Obamacare insured from accessing the coverage they thought they were paying for.
The government was relying on subsidies to bribe people to buy these flawed government designed policies, but also limited those subsidies to state exchanges to bribe the states to participate. When a majority of states did not participate, the law (if not the outlaw IRS) takes away the subsidy bribes to the Obamacare insured in those states. Given that very few are signing up for this junk insurance without a subsidy, the federal exchanges are facing collapse.
The government mandated that employers buy insurance for their employees in the hope that the government would not have to, but government mandates increased the cost of purchasing the insurance, while the penalty for failing to purchase was a fraction of cost. Thus, Obamacare encourages employers to terminate their previous heath insurance coverage and dump their employees onto the flawed exchanges.
The individual mandate has the same flaw, making it cost ineffective for anyone apart from the chronically ill to buy the new government insurance. When only the ill sign up, the health insurance plan either increases premiums to a level where the insured might as well pay for her own medical care or the plan goes insolvent.
Furthermore, the employer mandate is limited to full time employees, which encourages employers to hire only part time employees and/or lower the hours of current full time employees.
Etc, etc...
Socialist governments have repeatedly shown over the past century that they are incapable of directing economies. Designed in secret by politicians without the vaguest idea of how health insurance actually functions, Obamacare may arguably be the worst direction of the health insurance industry in the history of socialism.
Our CO "dopey-ganger" avoids the failures of the free market to address pure food/drugs, clean water, clean air, social security, medicare, medicaid, and other "progressive," "socialist," legislation in the 20th century and continued with Obamacare in the 21st. Is anarchy the solution of our CO "dopey-ganger," with his rants on events in Germany in the 19th century? Perhaps our CO "dopey-ganger" might reference the New Testament for its "progressiveness," socialism. The free market permits for cutting mountaintops to more easily access coal to add to climate issues and to pollute waterways without paying for the damages that result. The free market woks only to line the pockets of those with assets, adding to income/asset/inequality.
ReplyDeleteI wonder, like how challenges to the New Deal worked out, how things will look on CU, Shelby, ACA etc. in fifteen to twenty years.
ReplyDeleteI think "Project" made sme good points -- nice this thread invites diverse comments -- not deciding to agree with it in full.
I wonder, like how challenges to the New Deal worked out, how things will look on CU, Shelby, ACA etc. in fifteen to twenty years.
ReplyDeleteThat depends, a lot, on whether the Dems take the Presidency and Senate in 2016 and 2020. Also on who's appointed, of course.
If the Rs win either or both in 2016, that will be the strongest possible evidence that Obama was not transformative.
Joe said...I wonder, like how challenges to the New Deal worked out, how things will look on CU, Shelby, ACA etc. in fifteen to twenty years.
ReplyDeleteVery similarly, I would guess.
The courts will generally rubber stamp the new bureaucracy and its decrees, and the GOP will need the White House and a libertarian/conservative (not RINO) super majority in Congress to legislatively reverse it.
This is why I am on board Sandy's bandwagon calling for a constitutional convention to bypass DC.
Unfortunately, this victory was too long in coming. The ACA will have enough time to accomplish its actual purpose: Destroying the existing health care financing system.
ReplyDeleteThat was the goal all along. Like burning down the house because your spouse won't agree to remodel, Democrats set out to overcome the opposition of people who liked their insurance, by destroying their insurance. And thus clear the way for some form of government funded single payer.
At this point the old system is damaged beyond repair, and it will only take more damage in the next couple of years, until the first opportunity to repeal it could arrive. This was Roberts' gift to the Democrats, and I do wonder how it was purchased. Is the NSA already warping our domestic politics?
We need to think about what will replace the ACA and the system it was created to destroy, because the ACA is unsustainable on it's own terms, is falling apart before our eyes. It was never intended to be workable, and can't be made workable. A bomb can destroy a bridge, but you can't cross a river by driving over a bomb.
I think we need a thorough overhaul that solves the basic problems of the insurance market. My proposal is to extend the tax status of employee funded insurance to insurance obtained though ANY source. You may have to change employers occasionally, but you don't need to quite a fraternal organization or drop your Sams Club membership just because you change jobs.
Letting any organization take the place of the employer in purchasing insurance would solve most of the problems of the insurance market, by keeping people in the same risk pool all their lives.
And the other thing we need to do is remove the political control over coverage and price, that were the primary means by which the ACA makes health insurance economically unsustainable. No insurance company can survive if it can't control either its prices or expenses.
The ACA must die, but the old system is dying from the mortal blow the ACA was designed to deliver. The Republicans need to do some serious thought about what will replace both.
The old system involved people who couldn't get insurance, rising insurance costs etc. Yes, this system needed reform. It was not sustainable. Health experts etc. not just "Democrats" etc. thought so.
ReplyDeleteAny reform is going be imperfect, particularly given the nature of the government but also because of the various things that have to be balanced, and extended over time. Thus, something like Medicaid and Medicare developed over time.
The new system includes dealing with insurance costs, expanded coverage (various people have spoken out here, including those who very well might have died w/o it) and generally speaking people did not have to change their insurance. And, it is not like the existing system didn't limit choice there. Some of the very changes pointed out is thanks to insurance companies.
But, that doesn't matter to some people since the "Democrats" (via a form of a plan that Republicans offered as an alternative with Medicaid expansion that become voluntary, and many Republican governors still signed on) or "government" isn't involved.
Long term, like other nations, a different system is likely to come about in some fashion. Thanks Obama and Democrats for starting the ball rolling.
Finally, of course, since Brett et. al. isn't just concerned about policy here but "words matter" and "law not men" etc., twisting the law to "destroy ACA" is not the way to go. That would obviously be wrong.
The logical move to me is to make health care a right of people in our society like we do with police services and other things. The people via taxes pay for that, even when they immediately (though indirectly it helps them or directly helps someone they know etc.) don't need it.
Again, this is how the Western world and other places generally do it. We do it for many people and in a fashion for the rest, if in a half-ass way.
Brett:
ReplyDeleteIt is tempting to assume that no one could be stupid enough to design all the internal contradictions into Obamacare and assume it would actually work, and thus conclude that the architects must have wanted it to fail.
In reality, the history of socialism is littered with thousands of such policy train wrecks done in by their internal contradictions. The socialist architects all believed their directions of the economy would work. The problem is that no government bureaucracy can possess the necessary knowledge to design a market for goods and services.
In a seminal essay published after WWII entitled The Use of Knowledge in Society, economist Fredrich Hayek explained how producers and consumers possess the knowledge to operate a marketplace, but government never can.
http://www.econlib.org/library/Essays/hykKnw1.html
Joe: The logical move to me is to make health care a right of people in our society...
ReplyDeleteThere is no "right" to compel your neighbors to buy you goods and services.
The purpose of insurance is to spread the risk of catastrophic events, not to fund ongoing expenses.
When government mandates and the tort system compelled health insurance to cover everyday medical expenses, and the combination of high WWII taxes and the employer health insurance deduction shifted the cost of that insurance to employers, health care inflation took off because the insured were increasing demand by maximizing a benefit for which they were not directly paying.
Joe: "This lawsuit directly only hurts states that don't willingly take part. Many states want too. Then, there are other provisions like adding those under 27 etc. to plans that people support too. Thanks Obama and company. "
ReplyDeleteIt hurts the people in those states; the people running the state governments will be just fine.
"people running the state governments will be just fine"
ReplyDeletehttp://delong.typepad.com/sdj/2014/11/afternoon-must-read-nicholas-bagley-the-supreme-court-will-hear-king-thats-bad-news-for-the-aca.html
I don't know. There is a sort of "have your cake and eat it too" quality at the moment.
"There is no "right" to compel your neighbors to buy you goods and services"
ReplyDeleteYes, that's true. But look at Medicare. The government administers the program and people are free to choose which goods and services they want.
We can provide healthcare to all as a right, which it should be, and the healthcare industry doesn't die off. It prospers as everyone is now covered. Sounds line a working plan to me. How do I know it will work? It already does.
There is no "right" to compel your neighbors to buy you goods and services.
ReplyDeleteDo I not pay taxes to support the legal sytem - judges, courthouses, and so on - from which you make your living?
"american in midpassage" by Mary and Charles Beard
ReplyDeleteiirc, in the discussion of the Ag Adjustment Act and the National Industrial Recovery Act, the beards state that these landmark new deal acts were written by and supported by organized agriculture and the chamber of commerce
and that the CoC worked hard to keep truly liberal ideas out of the NIRA
Teresa:
ReplyDeleteMedicare was designed to be funded with a capped flat tax so it would not redistribute wealth.
Medicare also offers nearly unlimited coverage, which is why it is currently insolvent (spending more than it takes in) and all the intergovernmental bonds (IOUs) Congress provided the system when it spend past surpluses will be gone in less than a decade.
This is why Obamacare capped Medicare spending and created a unaccountable rationing bureaucracy called IPAB to make the cuts.
So called "Medicare for all" would cost three or four times the current insufficient Medicare taxes and have the design flaw of unlimited benefits paid for by someone else, unless it too was subject to the IPAB "death panel."
BTW, taking money out of other parts of the economy to overspend on health care hardly benefits the economy.
Toad:
ReplyDeleteA flat income and/or sales tax to fund public goods available to all is not redistribution of income.
You most likely live in a progressive jurisdiction with a progressively punitive income tax, which is the first foundation of progressive redistribution of wealth.
Soccer Dad said..."american in midpassage" by Mary and Charles Beard iirc, in the discussion of the Ag Adjustment Act and the National Industrial Recovery Act, the beards state that these landmark new deal acts were written by and supported by organized agriculture and the chamber of commerce and that the CoC worked hard to keep truly liberal ideas out of the NIRA
ReplyDeleteThe NIRA had no liberal elements as that word in normally understood, nor did the New Dealers want any.
The NIRA was modeled after fascist corporatism. During the Great Depression, the New Dealers were enormous fans of Mussolini and somewhat less so of Hitler. NIRA was an attempt to emulate their policies.
A corporatist government reorganizes the economy by industry and labor to enforce common products, prices and wages, and thus eliminate "wasteful" competition.
To avoid the obvious constitutional problems of imposing full blown corporatism in the US, NIRA instead suspended anti-trust actions against any company who would enter into price and wage fixing agreements with the government and agree to unionize. Even after the Supremes held NIRA to be unconstitutional, the New Dealers continued these deals with a nod and wink.
Established companies had no real problem with NIRA because the price fixing essentially locked out new competition.
Labor unions loved it because the government was doing their organizing for them.
However, the wage and price distortions created by NIRA (and later the WWII industrial boards) were a key reason the depression of the private economy continued until 1947.
https://www.minneapolisfed.org/research/wp/wp597.pdf
"There is no "right" to compel your neighbors to buy you goods and services"
ReplyDeleteYes, that's true
I don't know what this means.
My argument was that we should provide health care as a sort of public or social good ("public good" can be given some narrow meaning, I realize) akin to police services or free education to children.
We already have "rights" in which the government grants certain goods and services, paid by our tax dollars. We don't go door to door to our "neighbors" here, of course, but this is what "our" means here. Me, you, our neighbors etc.
So, we have a "right" to a government paid (paid by "neighbors" taxes) lawyer in certain cases. State and federal law protects a right to health services in a variety of ways now including emergency care etc.
It would make better policy sense to provide a complete universal right and we can debate the proper tax scheme. For the average person, they will be paying it straight out. But, for others, a subsidy might be available of some sort, just like those unable to pay for public education don't get denied.
Tax dollars, paid by neighbors, provide such felt necessary goods and services to others in need. And, the public benefits from the result. The subsidy of the needy from public funds has ancients roots.
Joe:
ReplyDeletePublic goods should be limited to things that the market cannot accomplish like security, justice and some forms of infrastructure.
The market can and has regulated both health insurance and medical care better than the government with the exception of the poor being able to afford insurance and preexisting conditions.
If the government provides vouchers to purchase free market insurance, requires all insurance to cover preexisting conditions and eliminates all other mandates apart from restrictions on fraud and criminal activity, you have essentially solved the problem.
Bart, surely you're aware that, if the government "requires all insurance to cover preexisting conditions", one of two things happens. Either,
ReplyDelete1. Pre-existing conditions get taken into account in pricing the insurance, which is financially equivalent to not covering them.
or,
2. Pre-existing condition cannot be taken into account in pricing the insurance, in which case people wait until they HAVE a condition before getting the insurance, and the adverse selection death spiral kicks in.
Insurance is a system for dealing with uncertainty, and one is not uncertain as to whether one has a preexisting condition.
Brett, is it tough for a cancer survivor to get insurance?
ReplyDelete"Insurance is a system for dealing with uncertainty"
ReplyDeleteIt is also a system for dealing with certainty -- life "insurance" deals, e.g., pays for people's survivors. We might not know when, but it is "certain" we are going to die. Some in fact get insurance only when they are pretty sure they will die sooner than later or when it is much more likely (e.g., when they go to war).
Insurance is not only paid off to deal with "uncertain" events, though we might be defining words in a special way again.
Brett:
ReplyDeleteIf the government implements a sales tax and uses it to fund a voucher programs for everyone to buy health insurance, they you catch all the free riders and mitigate the cost of those with chronic medical problems. If you are too lazy or disabled to buy health insurance, then you get put on a capped Medicaid-style program. All other government health insurance programs would be terminated.
Furthermore, the voucher should be limited to catastrophic health insurance and the remainder of the money should go to fund a HSA from which you pay for non-catastrophic medical treatment. You keep any unspent HSA money and can access it like an IRA for any expense after reaching retirement age.
People, not insurers or the government, will shop for medical care and make their own cost benefit decisions. I guarantee that demand and thus the cost of non-catastrophic health care will plunge as soon as providers have to compete in an open market for customers who are spending their own money.
Problem solved.
Gerard:
ReplyDeleteMr. Obama is a very much a transformative president.
It appears that Mr. Obama is preparing to reinforce his precedent that Presidents can decree their own law through the bureaucracy in direct violation of the laws of Congress.
http://www.nytimes.com/2014/11/14/us/obama-immigration.html?smid=tw-bna
During the days of the Roman Republic, their Senate would appoint dictators to address crises and grant them power to ignore laws of the Senate and rule by decree. The only difference between those Roman dictators and Mr. Obama is that Obama skipped the appointment step.
Our Republic was nice while we kept it.
Our CO "dopey-hanger" continues his rant with:
ReplyDelete"Our Republic was nice while we kept it."
seemingly suggesting "our Republic was nice" until Pres. Obama came along. Of course he ignores slavery, the Civil War, decades and decades of Jim Crow following - and despite - the Civil War Amendments (and continuing after Brown and 1960s Civil Rights Acts), and requiring the 19th Amendment to give women the right to vote in 1920. Add to this the "Roaring Twenties" leading to Hoover's 1929/crash/Great Depression, Richard Nixon, Iran/Contra and the glory days of Bush/Cheney that closed with the Great Recession.
No, a "nice Republic" was not a continuum from the time the Republic was established. I have provided only some examples of what was not "nice."
On the matter of slavery, the Legal History Blog has posted announcement of a graduate seminar next year on slavery's impact on the Constitution of 1787.
As to the proposed executive action, Congress can undo that if it chooses next year with GOP control of Congress, subject to veto of course by Obama for 2 years in finishing his second term. The House has been reluctant to bring up the Senate's bi-partisan bill on immigration out of fear that it might just pass.
Of course, "nice" is relative and perhaps the events enumerated above are considered by our CO "dopey-ganger" to be "nice," like (according to him) that "The Gilded Age" was America's best days.
Shag:
ReplyDeleteYou have made it quite clear over the years that you prefer progressive dictatorship to our small "d" democratic Republic. Most progressives do.
No progressive here is in the least perturbed by Mr. Obama's various violations of the law and unconstitutional and illegal decrees.
Gee, I thought our CO "dopey-ganger" would entertain us with his views on how "nice" were those few items I enumerated in response to his rant. Maybe he would use his knowledge of history to inform us on what a "nice" Republic we have had, continuously, beginning in 1787, until Pres. Obama was elected.
ReplyDeleteAnd his view that:
" ... Mr. Obama's various violations of the law and unconstitutional and illegal decrees."
is based upon his baseless credentials.
Bart, you decry Obama's actions as like unto a dictators. Where were you when Bush and Cheney's advisors were pushing the unitary executive theory?
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteMr. W:
ReplyDeleteThe unitary executive theory is simply an observation that Article II grants all executive power to the President.
The unitary executive theory is in no way analogous to Mr. Obama seizing Article I legislative powers to decree laws in violation of laws of Congress.
Bart,
ReplyDeleteA flat income and/or sales tax to fund public goods available to all is not redistribution of income.
You mean I can charge people fees to represent them in court, even though I'm not a lawyer?
You most likely live in a progressive jurisdiction with a progressively punitive income tax, which is the first foundation of progressive redistribution of wealth.
Mistake. I live in a progressive jurisdiction with an almost flat income tax rate, and a total tax level that is around average for the country.
Bart,
ReplyDeleteIf the government provides vouchers to purchase free market insurance, requires all insurance to cover preexisting conditions and eliminates all other mandates apart from restrictions on fraud and criminal activity, you have essentially solved the problem.
You have solved nothing unless you do something about the pricing of insurance, especially in the case of thise with pre-existing conditions. Leaving any reference to pricing out of your plan makes it meaningless.
Another issue you have to deal with is what constitutes "catastrophic" expense. This is non-trivial. It doesn't take much to produce a catastrophe for some people, and you also don't want people waiting to address conditions because they will have to pay for initial treatments.
In other words, you have no plan, just a miss-mash of slogans.
Toad:
ReplyDeleteUnder my plan...
Catastrophic health insurance and an HSA are funded by a sales tax which catches everyone, so there are no free riders with previous conditions who only sign up for insurance when they need it.
There is no premium penalty for previous conditions and insurers have to compete for customers.
The HSA takes care of non-catastrophic medical care. Because you can keep the HSA money for retirement, you will employ the same cost benefit analysis for non-catastrphic health purchases that you do for other goods and services, lowering prices due to competition.
Bart,
ReplyDelete1. How will the amount of the vouchers be set? Will they be means-tested?
2. How will "the rest of the money" in the HSA'a be administered? Individual accounts?
3. How will the deductible of "catastrophic coverage" be determined? On an individual basis?
4. Why charge people a sales tax and then turn around and give the money back as vouchers? Why not simply let them pay for their own insurance, with subsidies for those unable to afford it?
Eric Posner's Blog:
ReplyDeletehttp://ericposner.com/
has an 11/19/14 post with 5 links to his writings on Executive action, including on immigration.
Eric Posner is a sort of a consistent John Yoo type -- he's big one executive power, whoever is the one in office.
ReplyDeleteA timely post at Lawfare:
http://www.lawfareblog.com/2014/11/executive-power-and-immigration-reform/
Emily Bazelon, semi-official court reporter for The Colbert Report, agreed with the analysis.
toad said...
ReplyDelete1. How will the amount of the vouchers be set? Will they be means-tested?
There is no need for means testing. My intent is for the sales tax to pay for catastrophic health insurance and to replenish a health savings account.
2. How will "the rest of the money" in the HSA'a be administered? Individual accounts?
Individual accounts. The money is yours to spend on medical care or later for retirement.
3. How will the deductible of "catastrophic coverage" be determined? On an individual basis?
It will be determined by each insurer in a competitive market.
4. Why charge people a sales tax and then turn around and give the money back as vouchers? Why not simply let them pay for their own insurance, with subsidies for those unable to afford it?
Two reasons.
A tax catches free riders who are too lazy or reckless to buy insurance for themselves. Fines for failing to buy insurance are ineffective and are unconstitutional penalties, regardless of Robert's Obamacare decision.
Social insurance should not be a redistribution of wealth scheme. Everyone should pay something in and everyone should get the same public good.
Today, Marty cited to an Office of Legal Counsel opinion in an attempt to argue that Mr. Obama's decree somehow does not violate both his Article II duty to enforce the law and unconstitutionally seize Congress's Article I power to legislate.
ReplyDelete1. It’s not “unilateral” executive action...new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion. See especially pages 4-5 of the opinion of the Office of Legal Counsel.
Pages 5-7 are more instructive. OLC properly notes that the President may not attempt to abdicate his statutory responsibilities, rewrite laws under the guise of enforcement discretion and go beyond case by case prosecutorial discretion.
The Obama decree covers entire classes and reaches millions of illegal immigrants. This is in no way, shape or form case by case prosecutorial discretion. Instead, Obama's decree illegally rewrites the laws to give amnesty to Millennial illegals and illegal parents with anchor babies.
And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).
Page 24 does not offer OLC's conclusion. Instead, OLC acknowledges that the latest Obama decree departs from previous "exercises of enforcement discretion" and suggests that it is dancing along the "line between executing the law and rewriting it." You can tell OLC is very uncomfortable with this entire exercise in running interference for the decree.
2. It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority. Indeed, it’s not an exercise of constitutional ”executive power” at all
Huh? Article II only grants the president executive power, which includes prosecutorial discretion and Bush's exercises of CiC power. If Mr. Obama is exercising some other power, he is by definition acting behind his Article II authority.
3. It does not “cut out Congress”—indeed, it relies upon statutory authority.
On page 24 of its opinion, OLC acknowledges that Congress's previous limited endorsement of deferred action programs does not mean that "a deferred action program can be lawfully extended to any group of aliens, no matter characteristics or scope, and no matter the circumstances in which the program is implemented."
In other words, the president may not decree his own deferred action program which Congress has not approved in the law.
Continued in next post.
Continued from above:
ReplyDeleteNor does it contradict what Congress has prescribed. Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.
OLC offers an extremely strained argument extending amnesty to some groups of illegal aliens, but not to others is somehow the equivalent of the case by case prosecutorial discretion the courts have approved in the past as discussed on page 7 of the opinion.
Congress has expressly detailed in immigration statute which groups of illegal aliens may or may not be granted legal status. The recently fired Democrat Congress considered rewriting that statute in their DREAM Act and Obama is illegally attempting to impose those unenacted changes by decree under the fig leaf of prosecutorial discretion.
5. It is not an "amnesty," nor does it afford anyone a license to violate any law. That is to say, it is not the exercise of a “dispensation” power that the President does not have. And it does not give the covered aliens any status as lawful immigrants, or provide a means of them obtaining citizenship or permanent resident status.
Amnesty is simply declining to enforce the law against a group of illegal immigrants. Amnesty does not require granting members of this group additional legal benefits.
6. The oft-invoked “What if the next President did not enforce his own set of ‘disfavored’ laws?” scenarios are not analogous--nor does the deferred action initiative create a precedent for any and all such nonenforcement hypotheticals.
C'mon Marty!
Mr. Obama has actually established the precedent for waiving the provisions of a broad swath of laws from illegally using TARP money appropriated to buy bad mortgages to instead buy GM and Chrysler to waiving dozens of express provisions of the ACA for groups and individuals, including the waiver of the Congress express limitation of subsidies to "exchanges established by the states."
Under this precedent, a future GOP President could simply stop enforcing the ACA's individual and business mandates or the Court created CAA requirements to regulate GHGs.
Our CO "dopey-ganger" perhaps has been suffering from second-hand DUI funes with his last 2 rants. Let me pick up on just one of his "Looney Tunes":
ReplyDelete"Amnesty is simply declining to enforce the law against a group of illegal immigrants. Amnesty does not require granting members of this group additional legal benefits."
Perhaps our CO "dopey-ganger" will add to his DUI legal chops defending on the basis of amnesty the undocumented based on prior failure to enforce the law by the Feds. Those interested im what amnesty really means might Google "Amnesty defined." All our CO "dopey-ganger" is doing is parroting (as is his custom) Republican talking points. Let's give him a cracker, say Sen Lindsay Graham (Cracker, SCar).
Professor Josh Blackman breaks down OLC's analysis of the necessity of case-by-case prosecutorial discretion:
ReplyDeletehttp://joshblackman.com/blog/2014/11/20/eight-observations-about-olc-memo-on-constitutionality-of-executive-action-on-immigration/
Does Josh Blackman claim the executive order results in amnesty?
ReplyDeleteWhen "case-by-case prosecutorial discretion" becomes a presidential decree:
ReplyDeletehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/22/the-constitutional-limits-of-prosecutorial-discretion/
Sesame Street teaches us how dictatorships work:
http://youtu.be/JUDSeb2zHQ0
Now it is clear about our CO "dopey-ganger" who claims criminal defense legal expertise that he not only focuses on headnotes rather than a thorough read of court cases, that he relies upon Sesame Street in response to my challenging him of his claim that Obama's XO on immigration grants amnesty. I suggested he might check the meaning of amnesty. Perhaps that's how he come up with his Sesame Street link. Amnesty has legal implications. Is our CO "dopey-ganger" serious, as a criminal defense attorney (self-proclaimed) that Obama's XO has granted amnesty to certain undocumented persons?
ReplyDeleteConsider that the undocumented did not all become such under Pres. Obama. The undocumented go back to the Bush/Cheney Administration, to the Clinton Administration, as well as those of George H. W. Bush and Ronnie Reagan. Most if not all of these administrations issued XOs on immigration. Congress, it is said, currently funds for only 400,000 deportations a year. Perhaps the upcoming GOP controlled Congress can adequately fund for greater deportations, if that is what they desire.
Back to the absurd claim by our self-proclaimed legal defense expert, just when does amnesty - a legal term - result from XO on immigration, beginning with Reagan forward to Obama?
No, our CO gasbag is merely hawking Republican talking points. But he is an attorney, constantly reminding us of his legal expertise. Maybe he can point to court cases where a deportation has been thwarted on the basis of amnesty resulting from an XO. (Query: Such successful defenses could reduce the number of undocumented?)
Sesame Street was not available during my youth but when our 4 children came along, I did get to watch it with them. So with our CO gasbag's claim of relying on Sesame Street, I can just picture him as Oscar and their mutual love for trash.
By the Bybee [expletives deleted], Sesame Street had long been considered by conservatives as a bastion for liberals. Hmmm.
Benghazi!!!!
ReplyDeleteShag:
ReplyDeleteAmnesty has no statutory definition.
Black's Law Dictionary defines amnesty as "a sovereign act of forgiveness for past acts by the government."
The Obama decree is amnesty.
Immigrants have been violating our immigration laws ever since those laws were enacted. It is hardly a recent event. Mass amnesties of those illegal immigrants are recent events.
Progressives do not give a damn about illegal immigrants for their own sake. They see a means to import voters to offset their losses among American voters.
Because the GOP can clearly see the Democrats goal here, they would have no problem funding increased deportation.
Our CO Sesame St. Oscar continues with his love of trash. He ignores XOs on immigration by Reagan, George H. W. Bush, Clinton, George W. Bush but focuses solely on Obama with regard to amnesty. I haven't checked out statutes of limitations on the undocumented going back to Reagan or whether laches may have an impact. But our own Oscar with his CO trash is confident that Obama's XO granted amnesty but doesn't identify specifics on those undocumented who were granted amnesty. {Note: our CO gasbag seems reluctantly to recognized that Reagan et al prior to Obama may have granted amnesty to some undocumented.] But over the years since Reagan have any deportations been successfully thwarted by such claims of amnesty? I had asked of this in my earlier comment but our CO gasbag came only with his Oscar-like trash. And our CO gasbag totally ignores the lack of funding for more deportations. Perhaps our CO gasbag would like to see all 11+ million of the undocumented deported.
ReplyDeleteBut our CO gasbag is a self-proclaimed legal defense attorney and amnesty in immigration has legal consequences. Perhaps our CO gasbag will inspire immigration lawyers to assert amnesty in deportation proceedings based upon XOs of Reagan through Obama, citing as legal authority our own CO gasbag. If successful, the number of undocumented could be significantly reduced, for which our own CO gasbag could claim credit. But is that what Republicans want? Be careful of what you claim in going through your pile of trash. And keep in mind, you are an attorney. What is your legal basis for claiming amnesty, is it statutory, case law, common law (in the nature of Lord Mansfield's Somerset decision in 1792 on slavery that subsequently thwarted slaveowners in America), something else? Or does it emanate from your trash can? I'm not suggesting that our CO gasbag speaks for any segment of the Republican party (no longer of course the Republican party of Lincoln). But he has claimed to be the top legal dog in his isolated mountaintop community and should try to put forward a brief that Obama's XO grants amnesty to some undocumented to demonstrate that he is a thoughtful attorney.
Shag:
ReplyDeleteGive it a rest.
I work with illegal aliens and their immigration attorneys. They all consider the previous and current Obama decrees to be amnesty for which they are applying with the expectation that the decrees will not be reversed in the future.
Mr. Obama plainly considers his decree to be amnesty when he told illegal aliens that this was their chance to "get right with the law." These are not the words of a president who is simply prioritizing deportations.
Brian
ReplyDeleteIllegals
When you pay 1/10th as much attention to the illegals who infest Wall Street and our nations banks, I will take you complaints about immigrants seriously
FWIW, I would return the immigration laws in place when my ancestors emigrated.
ReplyDeleteYou are welcome to come if you are not a criminal, diseased or disabled.
You work because no welfare state benefits will be extended to you.
Win, win.
Our CO gasbag relies upon unnamed persons and unspecified procedures regarding amnesty with this:
ReplyDelete"I work with illegal aliens and their immigration attorneys. They all consider the previous and current Obama decrees to be amnesty for which they are applying with the expectation that the decrees will not be reversed in the future."
What is this amnesty application procedure our CO gasbag refers to? Some cites of law applicable thereto would be appreciated.
Of course our CO gasbag hides behind unnamed immigration attorneys with another of his client anecdotes. I wonder if our CO gasbag tells his illegal alien clients what his views are on XOs by Pres. Obama.
Still no cites of cases where deportation has been thwarted on the basis of amnesty.
By the Bybee [expletives deleted], the Obama Administration has deported more undocumented than Bush/Cheney. If Congress had provided additional funding, perhaps even larger numbers would have been deported.
And keep in mind that Congress may be able to undo the recent Obama XO, in which case any amnesty would disappear. So can there be real amnesty or is our CO gasbag's claim merely ephemeral?
Sure, I'll give it a rest once our CO gasbag can demonstrate with real law that Obama's XO granted amnesty rather that relying on trash from Republican talking points.
Shag from Brookline said...
ReplyDeleteOur CO gasbag relies upon unnamed persons and unspecified procedures regarding amnesty
Attorney client privilege. If you do not believe my anecdote, then simply listen to your king discussing that one of the purposes of his decree is to get illegals "right with the law."
What is this amnesty application procedure our CO gasbag refers to?
Under DACA, eligible illegals have to apply for work permits and other benefits. I presume the new decree will operate the same way.
I wonder if our CO gasbag tells his illegal alien clients what his views are on XOs by Pres. Obama.
I honestly advise my illegal immigrant clients that the state of Colorado will notify ICE if they plead guilty to a crime, but I have no idea whether ICE will enforce immigration law against them and advise that they consult with an immigration attorney.
By the Bybee [expletives deleted], the Obama Administration has deported more undocumented than Bush/Cheney. If Congress had provided additional funding, perhaps even larger numbers would have been deported.
Indeed. The fact that the Obama ICE had no problem deporting illegal immigrants of all categories under the current level of funding puts the lie to their claim that a lack of funding makes necessary extending de facto amnesty to over half of our estimated population of illegal immigrants.
The Obama decree keeps getting better and better.
ReplyDeleteThe Washington Post is reporting that our king is now extending Social Security, Medicare and other welfare state benefits to the illegals whom he granted amnesty.
http://www.washingtonpost.com/blogs/post-politics/wp/2014/11/25/under-obamas-immigration-action-many-of-those-protected-from-deportation-will-also-be-eligible-for-social-security-medicare-and-other-benefits/?postshare=2801416941610314
Prioritizing deportation, my ass.
Imagine, our CO gasbag now claims "attorney client privilege" AFTER relying upon his legal proof of amnesty with this:
ReplyDelete"I work with illegal aliens and their immigration attorneys. They all consider the previous and current Obama decrees to be amnesty for which they are applying with the expectation that the decrees will not be reversed in the future."
Maybe judges in CO would accept his client anecdote as evidence of amnesty but I don't think Judge Judy would
It's amazing that our CO gasbag thinks this is making the case that Obama's XO granted amnesty to some undocumented. He is a lawyer and should be held to a higher standard of proof than client anecdotes - and then assert "attorney client privilege" so his claim cannot be verified. Hearsay.
Then our CO gasbag goes on to say:
"I honestly advise my illegal immigrant clients that the state of Colorado will notify ICE if they plead guilty to a crime, but I have no idea whether ICE will enforce immigration law against them and advise that they consult with an immigration attorney."
How does this revelation square with the "attorney client privilege earlier asserted. Of course the "privilege" is that of the client, not the attorney, although there are ethical obligations of the attorney. So once again, apparently, our CO gasbag may be violating the privilege of his clients by disclosing publicly his advice to them. Our CO gasbag might now claim that these clients authorized him to make such disclosures. What a MAROON!
Our king has no problem telling his supporters that his decree was meant to "change the law."
ReplyDeletehttp://youtu.be/9ZOFbDUHJnE
Why do his apologists keep claiming otherwise in face of all the evidence?
Note that our CO gasbag, a self-proclaimed legal defense expert, top legal dog in his mountaintop community, continues to duck providing a legal basis for his claim that Obama's XO granted amnesty to some undocumented. So far he has, Oscar-like, come up with trash, especially his most recent hearsay client anecdote and HIS claim of attorney client privilege and then disclosing advice he has given his undocumented clients.
ReplyDeleteI assume that there are ethical legal standards in CO. Is the legal community in CO reflected by the looseness of our CO gasbag, or is he an outlier?
Might be a time for Sandy Levinson to guest post ...
ReplyDeletehttp://t.co/FNfCd670PB
Joe,
ReplyDeleteThanks for the link to an interesting article that does NOT reference Sandy's long-time call for a constitutional convention. The closing 3 pararaphs:
***
Although it’s chiefly the political right driving this proposal, more than a few staunch conservatives say it’s a bad idea. Foremost is Justice Antonin Scalia, the longtime leader of the Supreme Court’s conservative bloc, who observed this summer: “Whoa! Who knows what would come out of it?”
Some proponents argue that a check on any convention deliberations would be that three-quarters of the states then have to ratify any decisions, so radical changes like alterations to the First Amendment most likely wouldn’t fly. “That is a huge hurdle,” Professor Paulsen said.
Yet other observers like Mr. Dellinger worry about the possibility of a runaway process that could rattle both the left and right. They doubt that modern-day James Madisons or Alexander Hamiltons would be in attendance to temper the proceedings.
***
express serious concerns. Nor does Al Hunt's interesting article address Sandy's recent discussions of possible secessions. "Bad Company?"'s footnote 92 is a reminder of Sandy's possible motivation on bringing up secession. Speaking of being between the rock and the hard place, ....
h/t Julie Silverbrook
ReplyDeleteExecutive Director of The Constitutional Sources Project
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ReplyDelete