Archive | Obama

The Constitutionality of the ObamaCare “Fix”

President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.”

It is true that the Chief Executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year – simply to head off actual legislation not to his liking. Congress is working on legislation quite similar to the president’s fix, but with differences he considers objectionable. This further demonstrates the primarily legislative nature of the fix.

Indeed, the fix goes far beyond “non-enforcement” because it requires insurers to certain new action to enjoy the delay. This is thus not simply a delay, but a new law.

The “fix” amounts to new legislation – but enacted without Congress. The President has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail. And of course, this is not the first such extra-statutory suspension of key ObamaCare provisions.

UPDATE: Here is the text of the administration’s letter describing the fix. [...]

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Will Obama Order Military Intervention in Syria Even if Congress Refuses to Authorize it?

Although President Obama has asked Congress to authorize the use of military force against Syria, he and other administration officials continue to insist that he has the power to order a strike even if Congress refuses his request. In my view, anything more than an extremely limited operation requires congressional authorization under the Constitution. But President Obama, unlike Senator Obama, clearly doesn’t agree. In 2011, he ordered a military intervention in Libya without even trying to secure congressional support. This raises the question of whether Obama might choose to order an attack even in the face of a hostile congressional vote. At least at the moment, a majority of the House of Representatives seems to be leaning against authorizing intervention. So the issue may turn out to have more than theoretical significance.

Despite the administration’s dubious stance on the constitutional issue, I actually think Obama would probably back down if he can’t get Congress to approve a strike. Launching an attack in the face of explicit congressional opposition would be a very risky move, especially since numerous polls show that public opinion opposes an attack on Syria. If anything goes wrong, Obama would get a huge amount of blame, possibly wrecking his presidency for the remainder of his second term. By contrast, backing down in the face of congressional rejection carries much less political risk, for reasons Jack Balkin has outlined. President Obama is not the sort of politician that often takes major political risks. And I doubt this will be one of those times. One can argue that, as a second-term president, he is likely to be less risk-averse, because he does not face reelection. But even second-term presidents still worry about their historical reputation and the impact of their actions on their parties’ prospects. For [...]

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What Will A Proposed Authorization for Military Force in Syria Authorize?

Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do? 

The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action.  Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria.  Some of the issues that may arise relate to the purpose, scope, and duration of the intervention.  Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes?  How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran?  Will the authorization be sunsetted, or will it be temporally open-ended?  Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops? 

As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate.  After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF).  The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself.  While that language was ultimately omitted, the final version of the AUMF opted for breadth:

[T]he President is authorized to use all

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Wall Street Journal Op-Ed: Two Presidents, Two Suspensions

My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different.

The op-ed is here.

UPDATE: I will be discussing this on Fox News tomorrow morning around 8:45am EST. [...]

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Obama Probably Did Not Win the 2012 Election by Violating the Computer Fraud and Abuse Act

In a recent post, co-blogger Stewart Baker writes that there is “a very real possibility” that the Obama campaign won the 2012 election by increasing turnout among its supporters, using tactics that violated the Computer Fraud and Abuse Act. It is difficult to definitively disprove such claims. But the available evidence cuts the other way – at least if “real possibility” means more than an extremely small chance.

To prove that Obama won by violating the CFAA, it must be shown that 1) that Obama won because of unusually successful efforts to increase turnout among his supporters, and 2) that turnout would have been so much smaller absent violations of the CFAA, that Romney would have won. Both claims are problematic. Contrary to much conventional wisdom, Obama’s victory was actually well in line with historic trends. Standard econometric models based on trends in the economy predicted a narrow win for Obama, and his margin of victory was only slightly greater than the predictions, as I explained in this post shortly after the election. The final popular vote margin was larger than that indicated in the early numbers I used in the post; but the key point is that Obama would have won even if he had gotten exactly the percentage of the vote predicted by standard electoral models. Sean Trende and political scientist John Sides make similar points in greater detail (see also Sides’ forthcoming book with Lynn Vavreck). As Sides and Trende emphasize, incumbent presidents usually win reelection if there is even moderate improvement in the economy during the last year or so before the election. A major scandal or an unusually strong opposing candidate can overcome this tendency. But the GOP in 2012 didn’t benefit from either.

To the extent that high-tech campaign tactics and selective turnout [...]

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Public Ignorance about Obamacare Revisited

The recent Kaiser poll on health care linked by co-blogger Jonathan Adler reveals more evidence of public ignorance about Obamacare. Most notably, 45% of respondents say they have heard “nothing” about the health care reform law’s insurance exchanges, and 34% say they have heard “only a little.” This despite the fact that the exchanges are one of the most important and controversial elements of the new law. The refusal of many state governments to set up state exchanges has complicated the implementation of Obamacare and led to ongoing controversy. If most of the public has heard little or nothing about the exchanges, it is not because the information hasn’t been publicized by the media and other sources, but because most people have chosen to ignore it out of rational ignorance. This result is consistent with previous polls showing widespread ignorance about Obamacare. For example, Kaiser’s April tracking poll found that 42% of the public does not even realize that Obamacare is still the law.

The new Kaiser poll also shows that many people react differently to the law when it is described as “Obamacare” then when it is referred to as the “health reform law.” 58 percent of Democrats have a favorable view of the latter, but 73 percent approve of Obamacare. By contrast, Republicans are more likely to disapprove of Obamacare (86 percent) than the health care reform law (76 percent). This too may be an indication of ignorance. Politically aware people surely realize that the law is associated with Obama whether it is labeled as Obamacare or not. Some percentage of the public, however, either does not know that or tends to forget unless reminded. And that percentage may well be higher than the 10-15 percent or so whose opinion of “Obamacare” differs from their [...]

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Explaining Obama’s Victory

Beginning today, pundits are going to offer a wide range of explanations for Obama’s victory. But I think the simplest and most obvious is that he won because the economy had improved just enough since 2008 to give him the edge. As I pointed out back in September, standard models of presidential election outcomes based primarily on economic variables predicted, on average, that Obama would get 50.2% of the popular vote. Although late West Coast results will increase this total slightly, it looks like he actually got about 50.4%. That’s a very close match.

The econometric models generally assume a two party race. In reality, two third party candidates, Libertarian Gary Johnson (1 percent) and Jill Stein of the Green Party (0.3%) got statistically meaningful shares of the vote. If we plausibly assign most of Johnson’s vote to Romney and most of Stein’s to Obama, we end up with a roughly 51-49 split in a hypothetical “pure” two party race. We get a similar result if we throw out the third party votes and just look at Obama’s share of the 98.5% of the electorate who voted Democratic or Republican. Obama slightly outperformed economic expectations, but not by much. Republicans who thought that the state of the economy gave Romney a huge advantage forgot that voters care about the directional trend as well as the absolute situation.

In my view, much of the electorate gave insufficient weight to the possibility that Obama’s policies made the recovery weaker than it otherwise would have been, and they also likely gave him too much credit for at least some recovery that would have happened regardless of who was in the White House. Economist Casey Mulligan recently published an important book defending the former theory. If you believe that the TARP [...]

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Racial Progress and Obama’s Reelection

As I see it, Obama’s reelection is overall likely to cause more harm than good. But there is one important positive aspect that deserves special mention. Obama’s reelection victory cements the idea that having an African-American president is normal. For a nation with a long history of racial oppression – one where most blacks didn’t even have the right to vote just fifty years ago – that’s an important sign of progress.

Obama’s 2008 victory was, of course, an even more important breakthrough on this front, as I, among many others, emphasized on the night he won. But that win could have been written off as a historical fluke, caused in large part by public revulsion at the financial crisis and the many failings of George W. Bush and the GOP. His reelection this year can’t be dismissed in that way. The Republicans had a real chance to win this year, and Mitt Romney, for all his flaws, was not as fatally compromised by Bush’s legacy as McCain in 2008.

The next time we elect a black president – and I am sure there will be a next time – it will be seen as business as usual. Similarly, few people are exercised about Catholics in high political office anymore or about the fact that there are numerous Jews in Congress and on the Supreme Court. It would be naive to assume that Obama’s political success signals the complete disappearance of racism or anything close to it, any more than we have completely eliminated anti-Semitism. But it’s certainly a sign that racism has greatly declined, and that African-Americans are more fully accepted in mainstream American society than ever before.

Does this sign of progress outweigh all the bad things that Obama has done in office, and may well [...]

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Implications of Obama’s Victory

All of the major networks have called the election for Obama, and it’s pretty obvious that he’s going to win, even though the Romney campaign has not yet officially conceded. It’s an impressive political achievement for the president and his supporters, especially if (as now seems likely), he does better in the popular vote than most national polls predicted. The Democrats also scored an important success in retaining control of the Senate in a year where the GOP hoped to make significant gains.

For me and most other libertarians, this election was always a choice of evils and I shed few tears for Mitt Romney. But I do think he was the lesser of the two evils on offer this year. Obama’s reelection will likely have at least two major negative consequences from my point of view. First, Obamacare is likely to stay in place. Although it remains somewhat unpopular – as shown the by the president’s reluctance to bring it up in the campaign – he is going to hold onto it successfully. Second, Obama will get to replace any Supreme Court justices who retire or pass away during the next four years. With four justices in their mid to late seventies right now, there’s a real chance he will get at least one or two more nominations. All conservatives and libertarians can do is hope that Justices Anthony Kennedy (76 years old) and Antonin Scalia (also 76) will remain healthy and uninterested in retiring. But even if Obama gets to replace one of the liberal justices, such as Ruth Bader Ginsburg (79), there’s a big difference between a justice who probably has only a few years left to serve, and a much younger one who could stay on the Court for 25-30 years or even longer.

On [...]

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Are We More Likely to Get an Immigration Reform Bill if Obama Wins the Election?

In my post comparing Romney and Obama on libertarian grounds, I noted that libertarians might have good reason to support Obama if it is likely that a second term for him would result in substantial immigration reform, by which I mean letting more immigrants in the country and/or letting more of the ones already here stay. For reasons I explained here, immigration reform is an extremely important libertarian issue. Unfortunately, I saw no reason to believe that Obama would give this issue any more priority than he did in his first term, where he accomplished very little when he had a massive Democratic majority in Congress in 2009-10, and actually ramped up deportations beyond anything seen under George W. Bush.

Since I wrote my previous post, however, the White House has allowed the publication of an off-the-record interview where the president predicts that he will get an immigration reform bill passed if he wins a second term:

In the interview, Obama said he is confident his administration will pass immigration reform and achieve the equivalent of a grand bargain with Congress.

After failing to achieve comprehensive immigration reform in his first term, the president said Republicans, given the large Latino vote, will be invested in changing the system.

“I’m confident we’ll get done next year is immigration reform,” Obama said in the transcript of the interview posted online by the paper. “And since this is off the record, I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community.”

“So I am fairly confident that they’re going to have a deep interest in getting that done,” he

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Libertarians and the Presidential Election

Reason has an interesting symposium on the presidential election in which various libertarian writers and political commentators give their presidential picks. In sharp contrast with Reason’s symposium during the 2008 election, there is almost no support for Obama. While many libertarians endorsed Obama four years ago, very few are willing to do so today. I myself thought that McCain was the lesser evil in 2008, and I believe that most of my 2008 concerns about Obama have been vindicated.

Not surprisingly, none of the Reason contributors are enthusiastic about Romney either. But many of those who compare the two major party candidates seem to consider Romney the lesser evil. I made a similar case in this post.

Many of the symposium participants say they will vote for Libertarian Party candidate Gary Johnson. I agree Johnson has many virtues. His positions on most issues are clearly superior to Romney and Obama’s from any libertarian perspective. The real question about Johnson’s candidacy – ignored by most of his Reason supporters – is whether the Libertarian Party is actually an effective vehicle for promoting libertarianism. Libertarians may be better off working within the two major parties and/or outside of party politics altogether. I have been skeptical about the LP’s effectiveness for a long time, and so far I haven’t seen much evidence that things have changed.

UPDATE: I wrote this post before noticing co-blogger Jonathan Adler’s post on the same subject. I am going to leave this post up, because it makes some points that Jonathan didn’t. [...]

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Why the Presidential Race Should Not Ignore Judicial Nominations

In this post, I complained about the total lack of discussion of judicial nominations in last week’s presidential debate. Tonight’s vice presidential debate was only slightly better. The only mention of the courts was a brief reference by Joe Biden while discussing the issue of abortion. In reality, as I explained here, there are many other issues at stake as well, including the future of constitutional protections for federalism, property rights, and freedom of speech.

In a recent post at National Review, conservative commentator Ed Whelan gave a more thorough explanation of the reasons why this election may be crucial for the future of the Court:

The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential debate….

Whatever the reasons for it, the silence certainly doesn’t correspond to the importance of the Supreme Court appointments that a re-elected President Obama or a newly elected President Romney may make in the next presidential term….

Control of the Supreme Court, perhaps for a generation, is very much up for grabs.

In general terms, the Court currently consists of four judicial liberals (Ginsburg, Breyer, Sotomayor, and Kagan), four judicial conservatives (Roberts, Scalia, Thomas, and Alito), and a ninth justice (Kennedy) who sometimes joins with the liberals and other times with the conservatives….

The nine justices fall roughly into two age cohorts. Four justices are in the older cohort (ages 74 to 79): Ginsburg (born in 1933), Scalia (1936), Kennedy (1936), and Breyer (1938). Five justices are in the younger cohort (ages 52 to 64): Thomas (1948), Alito (1950), Sotomayor (1954), Roberts (1955), and Kagan (1960)….

In other words, in the older

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A Libertarian Perspective on Romney vs. Obama

In recent weeks, libertarians have been debating whether there’s any good reason for us to support Romney over Obama, or vice versa. In contrast to 2008, when many libertarians endorsed Obama, few if any are making the case for him this year. There is near-universal agreement among libertarian commentators that Obama’s presidency has done more harm than good.

But there is some debate over whether Romney is likely to be any better. Stephen Green, the “Vodkapundit,” makes the case for Romney here. Doug Mataconis argues against. As for me, I voted for McCain in 2008 because it was the only way to maintain divided government and avoid a massive increase in government spending and regulation. Sadly, most of my 2008 fears about the effects of an Obama victory have been realized.

This year, however, I think the presidential choice is a much closer call than in 2008. The primary difference is that a reelected Obama would have to deal with a Republican-controlled House and at most only a narrow Democratic majority in the Senate. That greatly limits the potential harm he might do in a second term.

In this post, I break down the tradeoff between Obama and Romney on several of the most important issues for libertarians: Government spending and regulation, the fate of Obamacare, the courts, the War on Drugs and immigration, and foreign policy. I picked these issues because they all have a massive impact on large numbers of people. Ultimately, I think that Romney deserves a slight edge. But there are many uncertainties involved. Because it’s such a close and complicated call, this post will unfortunately be much longer than I would prefer. Even so, I will have to leave consideration of Libertarian Party nominee Gary Johnson for a future post, which I [...]

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Dogs that Didn’t Bark in Tonight’s Presidential Debate

In addition to Willow, there were two major dogs that didn’t bark during tonight’s presidential debate. First, even though the debate was supposed to focus on domestic policy, neither the moderator nor the candidates ever focused on some of the most important domestic issues on which the president can have a big impact: issues such as judicial nominations (not discussed at all) and regulatory agencies (only mentioned in passing). Instead, they spent a lot more time talking about short term economic performance, which presidents have only very limited leverage over. That is likely because voters who know little about politics and policy tend to focus on the wrong issues because they often don’t understand what a president can actually control and what he (mostly) can’t.

Second, although Romney predictably spent a lot of time attacking Obamacare, he said absolutely nothing about the individual health insurance mandate, which remains hugely unpopular – far more so than any other part of the law. Even when Obama waxed eloquent about the evils of insurance companies, Romney didn’t play the obvious gambit of pointing out that the President is the one who passed a law that forces millions of people to buy insurance company products that they don’t want, after saying in 2008 that “[f]orcing people to buy health insurance [in order to provide them with health care] is like forcing the homeless to buy a house to eliminate homelessness.”

Why did Romney let this opportunity slip by? The answer is obvious. If he had attacked the individual mandate, Obama could have countered by noting that Romney’s own Massachusetts health care plan also includes an individual mandate, and Obamacare was modeled on Romneycare. Even as it stood, Obama was able to point out (correctly) that his health care plan was modeled on [...]

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