The Volokh Conspiracy

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

I have an occasional series of posts highlighting issues where Barack Obama and I agree. So far, the list includes creating a playoff system for college football, allowing gays in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s right to forego defending federal statutes he believes to be unconstitutional, and that the Obama health care plan’s individual mandate is not a tax.

I am happy to announce that we have another addition to this distinguished list. Both Obama and I are happy that the NBA lockout seems likely to end soon:

NBA owners and players reached a tentative agreement early Saturday to end the 149-day lockout and hope to begin the delayed season on Christmas Day.

Neither side provided many specifics but said the only words players and fans wanted to hear.

“We want to play basketball,” NBA commissioner David Stern said....

President Barack Obama gave a thumbs-up when told about the tentative settlement after he finished playing basketball at Fort McNair in Washington on Saturday morning.

The shortened season might end up helping veteran teams like my Boston Celtics against younger ones like the Chicago Bulls (Obama’s favorite team). Our agreement on basketball issues might collapse if the president again tries to undermine the confidence of Celtics point guard Rajon Rondo:). Hopefully, Obama won’t want to alienate Celtics fans during an election year.

This is an interesting piece defending the Obama Administration’s record on Israel.

For what it’s worth, I don’t think Obama is “anti-Israel.” But I think the NY Mag piece misses some significant elements of the puzzle. Obama made it clear during the 2008 campaign that he was anti-Likud. Likud happened to be the Israeli party in power when he came into office. This created several problems for Obama, some substantive and some for “optics.”

On the optics side, it’s pretty hard to be anti-Likud when the Likud is in power and not look like you are exhibiting some hostility to Israel.

Relatedly, on the substantive side, it’s pretty clear to me that the Obama Administration wanted to topple the Likud-led government so they could get a more dovish government more to their liking in power.

This led the Administration to publicly demand that Israel initiate a full settlement freeze, something the Palestinians themselves had never demanded [as a precondition to negotiations]. The strategy, as I see it, was that with a new extremely popular president Israel wouldn’t be able to say no, but Netanyahu’s coalition was too right-wing to say yes. So the government would have to fall, as Shamir’s did in the early ’90s in part because he couldn’t get along with the Bush Administration.

This proved a spectacular miscalculation. Netanyahu had a much broader coalition than Shamir’s, including the Labor Party. And Israel has become a major issue in conservative politics, which is was not twenty years ago. Pressure on Netanyahu invited pushback from the Republicans, leading Democrats to tell the president to ratchet it down. And again optics-wise, how often does the U.S. try to undermine the coalition governing one of its democratic allies?

Meanwhile, the Palestinians couldn’t demand less from the Israelis than Obama demanded, so they refused negotiations in the absence of a full settlement freeze. In interviews I’ve seen, Palestinian officials have been quite explicit that this is the reason they have been unwilling to negotiate with Israel. So Obama not only came off as anti-Israel to many friends of Israel, he also undermined what was left of the peace process.

Finally, with regard to domestic politics I pointed out repeatedly during the 2008 campaign that one of Obama’s weaknesses was that his entire adult life was spent in circles in which liberal/left views were taken for granted. In Obama’s circles, publicly pressuring Israel and using “evenhanded” language to refer to the Palestinian-Israeli conflict (while favoring Israel beneath the rhetorical surface) seems perfectly reasonable, even a bit “right-wing.” The JStreet types that are Obama’s natural constituency would certainly think so. (The mistaken assumption, pushed by JStreet itself, was that the average pro-Israel American was the equivalent of a JStreeter. This isn’t true, and to the extent it applies to some Jewish voters, the JStreeter types are almost all hardcore Democrats, not the swing voters/donors Obama is having trouble with.)

But in mainstream pro-Israel sentiment, especially among the more traditional Jewish communities on the East Coast, “evenhanded” sentiment sounds extremely suspicious, especially (lest we forget) given that Obama still faced suspicion thanks to his longstanding membership in a church with an arguably anti-Semitic and certainly anti-Israel minister. (Remarkably, Rev. Wright never comes up in the NY Mag piece).

In short, I think the Obama Administration took it for granted that pro-Israel Americans would understand Obama and his administration were pro-Israel, but were simply willing to pressure Israel for its own good, at the expense of the Likud and its allies but not Israel. Instead, what a lot of Americans thought they saw was the Administration pressuring Israel publicly but coddling the other side. The NY Mag piece suggests that the Administration was also pressuring the Arabs, but much more quietly. Perhaps, but you can only get away with that if folks trust your pro-Israel bona fides, which they did not with Obama.

Last year, Dinesh D’Souza made waves by claiming that Barack Obama’s left-wing ideology and policies can be explained by his “anti-colonial” attitudes, traceable to his father’s Kenyan background. I criticized D’Souza’s argument here. This year, Cornel West claims that Obama’s racial background is the key to explaining why the president isn’t left-wing enough. West believes that it’s because Obama mixed-race background led him to have a “certain fear of free black men,” and to be more comfortable with “upper middle-class white and Jewish men who consider themselves very smart.”

Both West and D’Souza err in assuming that there is something unusual about Obama’s policies that requires explanation based on his personal background. In reality, as I explained in my critique of D’Souza, Obama’s policies are largely what any liberal Democratic president would have done under similar circumstances. Had Hillary Clinton or John Edwards (sans sex scandal) won the 2008 election, they would have done most of the same things. Indeed, Obama’s most important policy initiative, the health care bill, is in large part based on a proposal that Hillary Clinton promoted in the 2008 primaries, at which time Obama harshly criticized it.

I don’t always agree with Jonah Goldberg. But he recently hit the nail on the head on this particular issue:

Simpler explanations are available [than West's and D'Souza's]. Obama is a liberal Democrat. He does things a white liberal Democrat would do, and he receives mostly the same opposition a white liberal Democrat would receive.

Why isn’t Obama pursuing a more left-wing agenda? Perhaps because he only barely managed to get the health care bill through a Democratic Congress as it was, and also faced strong opposition to some of his other key policies. An (even) more consistently left-wing agenda would probably have been dead on arrival, as happened with the health care “public option.” It would also have hurt Obama’s electoral prospects, and those of the Democratic Party more generally. Like most successful politicians, Obama usually puts political survival first.

I don’t deny that Obama might genuinely have less left-wing views (including on racial issues) than West. Indeed, that’s a very likely possibility. Obama is on the left side of the Democratic Party mainstream, while West, a self-described “non-Marxist socialist,” is much further to the left than that. It’s understandable that a socialist like West believes that a conventional liberal like Obama isn’t left-wing enough. But it’s doubtful that the difference is caused by what West calls Obama’s “deracination.” There are plenty of liberal Democratic blacks who aren’t as far to the left as West, despite not having Obama’s unusual background. Indeed, the average African-American liberal is probably ideologically closer to Obama than to West.

Be that as it may, this is another case of pundits overestimating the impact of the personal on the political. Most of what Obama has done is readily explicable by his partisan background and the political situation he finds himself in rather than by personal idiosyncracies. To the extent that his personal views are discernible, they seem very similar to those of other liberal intellectuals of his generation, both white and black.

In a weird way, critics like D’Souza and West have much in common with the enthusiastic Obama supporters who in 2008 believed that Obama represented a fundamental break with politics as we know it. Both groups assume that the president is a lot more special than he actually is.

Here is a strange piece in the Washington Times by editorial writer Kerry Picket criticizing the Department of Justice because it

willl only investigate bullying cases if the victim is considered protected under the 1964 Civil Rights legislation. In essence, only discrimination against a victim’s race, sex, national origin, disability, or religion will be considered by DOJ. The overweight straight white male who is verbally and/or physically harassed because of his size can consider himself invisible to the Justice Department.

Well, yes. Discrimination based on size or weight is not barred by federal law, so the federal Department of Justice has no business investigating such discrimination.

This op-ed seems like a cheap rhetorical trick–trying to insinuate that the administration has something against “straight white males” when the administration is simply staying within the limits of its legal authority (and not to mention that discrimination based on being white or male would, in fact, be subject to DOJ investigation–and discrimination based on sexual orientation is not, regardless of whether the subject is gay or straight).

What’s even worse, coming from a purportedly conservative newspaper, is the suggestion that somehow it should be a federal responsibility to deal with bullies in school. If ever there was a local issue that is best left to state and local government, and indeed is constitutionally delegated to them, this is is.

Outstanding essay on the disaster in Libya and President Obama’s failure to act, by Larry Diamond in The New Republic. Diamond mainly discusses the consequences for the Libyan people, but I think that the harm will be global. Barack Obama’s America is showing itself to be a paper tiger; and every one of America’s enemies, especially the tyrants in Iran and Venezuela, are realizing that they can step up their aggression. If Gaddafi stays, he will resume his nuclear and chemical warfare plans and his support of global terrorism, secure in the knowledge that this American President will do nothing to stop him, unless the Russians and Chinese give permission. This week is may be one that will cause terrible problems for the United States for decades to come, comparable to the week when Khomenei seized power in Iran.

I’ve previously defended President Obama’s enthusiasm for golf, but the picture of the American President going on television to announce his predictions in a college basketball tournament, while America’s interests and long-term security are in imminent peril, is disconcerting. Whatever Barack Obama’s virtues, Hillary Clinton was right: he was not ready for the 3 a.m. phone call; and it appears that he never will be.

The Encyclopedia Britannica Blog is running a series this week assessing the Obama presidency. My entry, with the title above, argues that President Obama has been successful at promoting gun control, taking into account the fact that Obama has faced a Congress with strong pro-gun majorities, and that the Obama administration determined to spend its finite political capital on other issues. For a person who supports the agenda of the gun control lobbies, but who does not agree with the lobbies’ assertion that gun control is politically popular, President Obama’s low-key strategy has been intelligent and productive.

Dinesh D’Souza’s and Newt Gingrich’s claims that Obama’s ideology and policies are rooted in his father’s “Kenyan anti-colonialism” have attracted a lot of controversy. I don’t think that these claims necessarily amount to racist “bigotry.” But I also see little if any evidence to support them.

It’s hard to point to any Obama positions that differ significantly from those of most other left-liberals. Indeed, it’s hard to find any that are much different from what Hillary Clinton likely would have done had she won the 2008 Democratic nomination. Ironically, the Obama health care plan (perhaps his most important policy initiative) has a centerpiece individual mandate provision that Obama harshly criticized when Clinton proposed it during the 2008 campaign. D’Souza doesn’t even attempt to prove that Obama is significantly different from other liberals of his generation who do not have any Kenyan anticolonial roots. Virtually all the Obama policies and attitudes he cites (bailouts, the health care plan, increased economic regulation, retrenchment in foreign policy, skepticism about American exceptionalism, lack of interest in space exploration) have broad support on the US political left.

In considering Obama’s positions, I also find little to differentiate him from other left-liberal law professors of his generation – a group that I am familiar with for obvious professional reasons. The only major issue where he apparently differs from the majority of the latter is in his skepticism about the effectiveness of judicial review as a tool for promoting liberal social change. That may account for Obama’s unwillingness to place a high priority on appointing and confirming judicial nominees. Even on this issue, Obama’s views are hardly unique. They are similar to those of an important minority of liberal constitutional law scholars such as Obama’s University of Chicago colleague Gerald Rosenberg, and Michael Klarman. These scholars claim that judges are usually unwilling or unable to deviate much from mainstream public and elite opinion (I criticize the Klarman-Rosenberg thesis here, here, and here).

It’s theoretically possible that Obama came to hold the same views as most other liberals for reasons that differ from theirs. It’s not inherently bigoted to assume that a person’s ethnic background or national origin played a role in determining their politics. It certainly did for me. Given my personality and interests, I think it very likely that I would have become a liberal or a leftist had I been born in the United States. Growing up, I was the kind of young intellectual whom F.A. Hayek had in mind when he wrote “The Intellectuals and Socialism.” It was my background as a refugee from the Soviet Union (combined with the closely related factor of my parents’ influence) that prevented this natural affinity from taking hold and helped set me on the path that ultimately led to libertarianism. Because of the Russian background, my ideological trajectory differed from that of most native-born American libertarians.

In Obama’s case, however, there is nothing to suggest that he had a preexisting affinity for another ideology that was somehow thwarted by his father’s influence. It’s possible, of course, that being black increased the likelihood of his ending up on the left. For a variety of historical reasons, African-American intellectuals have been overwhelmingly left-wing since the New Deal era. But that trend is far from limited to those with a Kenyan or “anticolonial” background. As Tim Cavanaugh suggests, Obama’s ideology more closely resembles the New Deal liberalism of his mother – the parent who actually raised Obama while his father was mostly absent.

In sum, D’Souza’s thesis isn’t racist or bigoted. But, like many of his other recent writings, it is poorly reasoned and unsupported by evidence.

UPDATE: Various commenters claim that it’s hard to explain why D’Souza advanced such a poorly supported theory, if not because of racism. I find it very easy to explain. Political pundits make weak arguments all the time. D’Souza in particular has repeatedly demonstrated that he has little understanding of the views of those opposed to him, as shown by his previous writings that I linked to above. It’s not just Obama’s views that D’Souza advances silly explanations for; it’s also those of atheists, liberals other than Obama, libertarians, anti-American Muslims, and so on. Indeed, his speculations about Obama are less ridiculous than some of his other theories. At least the claim that Obama’s views derive from his father’s has some superficial plausibility based on the fact that Obama wrote an entire book focused on his relationship to him, and was obviously fascinated by his father’s life.

Ann Coulter’s column today argues that Obama is not a Muslim; rather, he ”is obviously an atheist.” The gist of the argument is “The only evidence for Obama’s Christianity is that he faithfully attended the Rev. Jeremiah Wright’s Trinity United Church of Christ for 20 years....Attending Wright’s church is the conscious, calculated decision to immerse yourself in hate-filled demagoguery and call it ‘Christianity.’”

I disagree with both the facts and the conclusion. Coulter is accurate in calling Jeremiah Wright ”a racist nut.” However, that does not prove that Wright (and by extension Obama, to whatever extent Obama believes in Wright’s theology) is not a Christian. Some practitioners of “liberation theology” (including the black liberation theology variant) may simply be Marxists looking for some broadly-appealing rhetoric to add to their political program. Other practitioners, however, may be sincerely and otherwise-orthodox Christians who truly believe in both Christianity and Marxism, and in the liberation theology fusion of the two. For example, liberation theology was popular among many Catholics in Latin America from the late 1960s until 1984, when it was condemned by the Vatican’s Congregation for the Doctrine of the Faith. I think it is implausible to believe that, pre-1984, the many Latin American American bishops, priests, nuns, and Catholic lay people who embraced  liberation theology were all closet atheists. It seems much more reasonable to conclude that at least some of them were orthodox Catholics who, until 1984, could consider liberation theology to be one legitimate way of expressing the Catholic faith.

Similarly, I would suggest that many of the pastors in slave states in antebellum America who taught that slavery was legitimate because of the slaves’ inherent racial inferiority were also sincere Christians, albeit grossly mistaken in their teachings on this matter.

Ergo, belief in the racist, Marxist philosophy of black liberation theology is not necessarily incompatible with being a Christian who has orthodox beliefs on most matters of Christian doctrine (e.g., the trinity, the resurrection, virgin birth, and so on).

Second, the record of President Obama’s Christianity is not limited to his record of attendance at Reverend Wright’s nut-house. For example, this year, the President spoke at a prayer breakfast on Easter Sunday, on what the resurrection means to him personally. His remarks about “the Easter celebration of our risen Savior...and what lesson I take from Christ’s sacrifice” were entirely straightforward statements of orthodox Christianity. I doubt that any normal Christian, of whatever denomination, could theologically disagree with a single word President Obama said.

In this polarized period of American politics, many people on the Right have been taking cheap shots at President Obama because he plays golf so much.

These golf-related criticisms are at least factually accurate, in contrast to the lies that Michael Moore told about George Bush supposedly vacationing much of the time. However, the criticisms of President Obama are misguided.

Of American Presidents since World War II, the one President who is now almost universally regarded as highly successful and constructive, by persons of all political persuasions, is President Dwight D. Eisenhower. While serving eight years as President of the United States, Eisenhower may have played over eight hundred rounds of golf. In other words, about twice a week.

Like President Obama, President Eisenhower was criticized by partisan opponents for his avid interest in golf.

Obviously there are many differences between President Eisenhower and President Obama. To begin with, the former came into office with demonstrated success in a very difficult executive job, Supreme Allied Commander Europe, defeating Hitler and Mussolini. By contrast, Obama was apparently successful as President of the Harvard Law Review, but was a failure at his only latter significant executive position, Chairman of the Board of the Chicago Annenberg Challenge, which attempted unsuccessfully to improve education in selected Chicago schools.

However, President Eisenhower demonstrated beyond any doubt that there is no inherent contradiction between being a good President and being an avid golfer. Indeed, golf helps clear the mind, and hardly any sport is better at fostering humility in participants.  So unless President Obama’s critics are willing to state that President Eisenhower golfed too much, they should stop carping about President Obama’s golfing.

Ronald Reagan once said that the conservative D.C. weekly Human Events was his favorite newspaper. And with good reason. Back in the 1970s and 1980s, there were few significant alternatives to the then-hegemonic MSM. Along with National Review, which was Reagan’s favorite magazine, Human Events was an essential source for stories that the MSM refused to cover, and for perspectives that the MSM shut out or marginalized. Unfortunately, a recent article in Human Events falls very far below the solid journalism standards which helped Human Events earn the respect of Reagan and so many others.

“Obama The Muslim,” by  Major Gen. Jerry Curry is an article not worthy of a fifth-rate blog, let alone a serious newspaper. The latter two-thirds of the article consists of criticisms of Obama’s policies on Israel and on Arizona border security. I generally agree with those criticisms, but they provide not a shred of evidence that Obama is a Muslim. Former President Jimmy Carter is extremely hostile to Israel, and he is obviously not a Muslim. U.S. Rep. Luis Gutierrez (D-Ill.) is extremely hostile to border security, and he is not a Muslim. 

So let’s consider the evidence that Curry deploys in the first third of the article:

“President Obama says there is nothing more beautiful than the Muslim call to prayer in the evening.” “Obama’s father and step-father were Muslims and he spent his childhood living in a Muslim country where his school enrollment records say his religion is Islam.”

–All approximately but not precisely true. Four years of his childhood in Indonesia, plus a school record there. The actual prayer call quote is “one of the prettiest sounds on Earth at sunset,” not “nothing more beautiful.” This is a starting point for Curry’s case, but in itself, not even close to proof that Obama is currently a Muslim.

“He says that the United States was not founded as a Christian nation.”

–The same position was taken by the United States Senate in 1797 when ratifying the Treaty of Tripoli, and by President John Adams in signing the Treaty. Neither President Adams nor any of the 1797 U.S. Senators were Muslims.  Article 11 of the Treaty stated:

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

“As President of the United States he genuflects to the Muslim King of Saudi Arabia but not the Christian Queen of England. He thumbs his nose at America’s friends and bows to its enemies.”

–I agree that Obama is deferential and obsequious to American enemies such a Hugo Chavez and the Iranian tyrants, and that he has been the most anti-British President of the United States in well over a century, and that he is seriously harming American relations with Poland, the Czech Republic, France, and other allies. But none of that is evidence that he’s a Muslim.

As for the Saudi king: Obama did not “genuflect.” To genuflect, in a literal sense, is to bring at least one knee to the ground, as a sign of respect. Obama did not do that. He gave the Saudi king a deep bow from the waist. I thought this was a disgusting gesture for an American President, but it’s not genuflection. (“Genuflect” can also be used in a looser sense, as behaving in a servile manner. In the article, however, Curry is plainly talking about literal physical actions.)

However, Obama bowed even lower to the Emperor and Empress of Japan. That’s not evidence that Obama is a closet Shinto.

As Curry accurately states, Obama gave only the mildest quasi-bow to Queen Elizabeth II. In light of what 1776 was all about, patriotic Americans should not criticize the American President for insufficient bowing to the British monarch. One can infer from Obama’s bowing patterns that he is anti-British, and one can see that in Japan and Saudi Arabia, he went out of his way to make gestures which made himself and our nation look weak and obsequious. The bowing is evidence that he’s a poor President, but not that he’s a closet Muslim.

According to Curry, “My mother believed in ‘common sense’ testing. She said if it looks like a duck, quacks like a duck, waddles like a duck and acts like a duck; it’s a duck....In short, Obama quacks like a Muslim, waddles like a Muslim and acts like a Muslim, so is he a Muslim? My mother would say, ‘Yes! He’s a Muslim through and through.’”

I’ll give Mrs. Curry more credit than that. The looks/talks/waddles test for duck identification involves three characteristics are shared by ducks and by no other animals. Mr. Curry, however, listed only characteristics which are common to some Muslims and many non-Muslims: thinks America is not a Christian nation, dislikes the British, acts obsequious around some non-British royals, is anti-Israel, is weak on border security, tries to ingratiate himself with tyrants. Curry might as well have written, “It has two eyes, lives near water, and eats fish.” Sure, it might be a duck, but it also might be a lots of other things. Such as a law school lecturer who agrees with most of the beliefs of the far-left Christian church he attended for twenty years.

Curry’s final item of alleged proof: “Growing up as a Muslim, Obama must have learned that according to the Qur’an it is acceptable to lie, deceive and live by a double standard provided in so doing one advances Islamic goals. Muslims only pretend to trust and be friends with non-Muslims; in the deepest of their Muslim hearts they have been taught that all non-Muslims are infidels.”

–Generally speaking, “must have” conjectures are not evidence of anything. For the sake of argument, let’s temporarily accept the claim that Islamic teaching sanctions lying in certain cases. Even so, there is no evidence that “Obama must have learned” this particular alleged teaching. His Muslim education did not continue past an early age. It might be plausible to presume that he was taught some elementary tenets of Islam (e.g., there is only one God; God spoke to mankind through a series of prophets, culminating in Muhammed; the Qur’an is scripture.) There is simply no evidence that the “lying to infidels is OK” theory of Islam is universally taught in Muslim education for young children, or, for that matter, to all persons who progress through a full course of Muslim religious instruction. That some Muslims teach the acceptability of lying, and that some Muslim scholars endorse this approach, does not prove that Obama “must have” been taught this particular theory.

It would usually be a sign of bad character for any elected official to proclaim his adherence to one religion while secretly adhering to a very different religion. However, Curry’s strongly-stated conclusion is not even remotely supported by the feeble and poorly-researched evidence which he cobbles together. The article should never have been published by Human Events. Of course even eminent publications such as The Atlantic can have a writer who wallows in malicious speculation based on extremely weak and poorly-considered evidence. 

Jerry Curry’s article is not proof that Human Events never produces good articles, nor is Andrew Sullivan’s Trig Trutherism proof that The Atlantic does not publish good articles. However, because reading time is finite, when I choose to read an edited periodical, I try to choose periodicals for which I have confidence that the editors have done a good job in selecting reliable, credible columnists. Accordingly, Human Events‘ retention of Curry as a columnist, like The Atlantic‘s  retention of Sullivan, often make me choose to prioritize reading other periodicals instead.

So far, I haven’t found much to agree on with President Obama other than gays in the military and the need for a playoff system for college football. However, I do support the administration’s proposal to repeal the tax deduction for mortgage interest for high-income taxpayers:

The popular tax break for mortgage interest, once considered untouchable, is falling under the scrutiny of policymakers and economic experts seeking ways to close huge deficits.

Although Congress last year rejected the White House’s proposed cut to the amount wealthier taxpayers can deduct for home mortgage interest payments, the administration included it again in its 2010 budget — saying it could save $208 billion over the next decade.

I’m no fan of tax increases. But I also think that government should be neutral between homeownership and renting. Economist Edward Glaeser summarizes the case against the mortgage interest deduction here.

Unfortunately, I doubt that the administration’s proposal will get any more traction in Congress this year than it did last year, when it failed miserably despite the fact that Obama had more clout then than he does now, when his popularity has dropped. Homeownership is popular, and higher-income homeowners and real estate developers have considerable political influence. Moreover, repealing the deduction may conflict with the administration’s (in my view misguided) efforts to prop up housing prices and encourage more lending to home-buyers.

Somehow, I doubt that my backing of Obama’s proposal is going to be enough to overcome the political odds against it. Then again, my endorsement was surely a crucial element in helping the Democrats gain control of the House of Representatives in 2006. I hope the president is more generous in rewarding me for my support than Nancy Pelosi was. Advertising revenue remains low, and we at the Volokh Conspiracy are still waiting for our much-needed bailout.

Cathy Young has an interesting column digging deeper into the data. Here’s how it starts:

Ever since the “Tea Parties” gained national attention, the debate has raged on whether they are a grass-roots protest movement in the proud tradition of American dissent, or a hysterical mob driven by fear, intolerance and selfishness. Recently, two much-discussed surveys — a CBS/New York Times poll and a multi-state University of Washington poll — have been bandied about as proof that the leftist caricatures of the Tea Partiers as mean-spirited rich white bigots are accurate. Yet a look at the data suggests that this interpretation is highly skewed by political bias.

UPDATE: Relatedly, I haven’t heard any prominent “tea partier” make anything remotely resembling this blatant appeal to racial demography, courtesy of President Obama, in which he told activists that “it will be up to you to make sure that the young people, African-Americans, Latinos, and women who powered our victory in 2008 stand together once again.”

In a recent post, I suggested that Obamacare will be almost impossible to repeal through political action. History shows that it is extremely difficult to eliminate entitlements. In addition, repeal would require Republican congressional majorities and a Republican president; I doubt we will get both simultaneously for years to come. Although various state governments and conservative and libertarian activists are planning to file legal challenges to the bill, I also doubt that lawsuits alone can achieve that goal. The Supreme Court is reluctant to take on the political branches of government on major issues that are a high priority for Congress and the president. When it has done so in the past (as in the 1930s), it has usually lost.

But while neither legal nor political action is likely succeed by itself, a two-track strategy combining the two stands a better chance. Unlike most high-profile policy initiatives enacted with strong presidential and congressional support, Obamacare is generally unpopular. Polls show substantial opposition to it, with opponents outnumbering supporters by 10 to 20 points (see here and here). If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so. As co-blogger Randy Barnett puts it:

[I]f this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as “realists” claim.

We should also remember that litigation is likely to center on the bill’s mandate requiring individuals to purchase health insurance even if they prefer not to. This is one of the least popular elements of the bill, a fact that would give the courts further political cover. Eliminating the individual mandate might eventually destabilize other parts of the bill. Without the mandate, insurance companies might start lobbying for repeal of other elements of the plan (since the bill would no longer be a huge bonanza that gives them many additional customers). If the ban on excluding coverage of preexisting conditions is maintained, the elimination of the mandate would incentivize citizens to wait until they get sick to purchase insurance. It’s unlikely that such a system could persist for long.

In my view, the individual mandate is unconstitutional because it exceeds Congress’ powers under both the Commerce Clause and the Tax and Spending Clauses. I believe that courts should strike it down regardless of the political situation.

As a practical reality, however, courts are unlikely to strike down major legislation if doing so will produce a massive backlash from the other branches of government. Thus, a strong political effort is probably necessary for litigation to succeed. Such two-track efforts have a long history. For example, The NAACP coupled its litigation strategy against segregation with a longterm political effort designed to win greater support for racial equality among white voters. Brown v. Board and later decisions could never have happened without complementary political changes.

Even a successful political strategy doesn’t necessarily guarantee victory in court. The conservative majority on the Supreme Court is a narrow one (5-4), and it’s certainly possible that one or more conservative justices will refuse to strike down the individual mandate even if the political winds are favorable. And the political battle itself will be far from easy. It’s likely that voters will take a more favorable view of the Obama administration and its policies as the economy begins to improve over the next several years.

If I had to guess, I would say that Obamacare is more likely to survive than not, for reasons I summarized here. But a two-track strategy that combines litigation with political action has a much better chance of success than either taken alone.

The passage of the health care demonstrates the ways in which economic crises create opportunities to expand the power of government, often in ways that have little connection to any effort to alleviate the crisis itself. Back in the fall of 2008, I expressed my fear that the combination of an economic crisis, political ignorance by voters, and unified Democratic control of the federal government would lead to a vast expansion of government if Obama were elected. White House Chief of Staff Rahm Emanuel famously said that the Democrats shouldn’t let “a serious crisis go to waste” because a crisis represents “an opportunity to do things you could not do before.”

I. Once Again, a Crisis Facilitates the Growth of Government.

Obama and the Democrats began to realize my expectations by passing a gargantuan “stimulus” bill and pushing a massive expansion of government control over health care, as well as promoting other major increases in the size and scope of government. But recent Republican political victories, especially Scott Brown’s win in Massachusetts, led many people to think that the health care bill would fail and the expansion of government might come to a halt. I had to admit that I had underestimated the political constraints inhibiting the administration. But I still thought that Democrats might be able to pass the bill by getting the House to adopt the proposal previously passed by the Senate – which has indeed happened.

The health care bill will now take its place with numerous Depression and wartime policies that expanded government in ways that would never have been possible absent the crisis, but which had no real connection to alleviating it. Absent the economic crisis, the Democrats would not have won such a sweeping victory in 2008, nor would Obama have had such an enormous reservoir of initial popularity to invest in pushing the health care bill through. As it turned out, the Democrats will have needed almost every bit of their huge crisis-created congressional majority in order to make up for defections in their own ranks.

II. Crisis-Enabled Measures that Make the Crisis Worse.

Whatever its other merits, the heath care bill does little if anything to alleviate the economic crisis that made its passage possible. Indeed, it may well end up exacerbating the crisis because it includes an employer mandate requiring any employers with more than 50 employees to either provide health insurance that meets various federal requirements or pay a $2000 fee per employee, if any of their employees receive federal health care subsidies. You don’t have to be a labor economist to predict that this increases the costs of hiring workers, and therefore is likely to increase unemployment or at least inhibit its reduction, as may already have happened under Massachusetts’ similar plan.

This too is not a new pattern. Many government-expanding policies enacted during the Depression and other past crises also exacerbated their effects. For example, the National Recovery Act – the centerpiece of the initial New Deal – significantly increased unemployment and raised prices for consumers. Later New Deal policies exacerbated unemployment in similar ways. The Agricultural Adjustment Act, famously upheld by the Supreme Court in Wickard v. Filburn, was a scheme intended to raise food prices at a time when many poor families were already having trouble making ends meet or suffering from malnutrition.

In most of these cases, political ignorance likely contributed to the passage of massive expansions of government that could actually make the crisis worse. Voters have incentives to be rationally ignorant about policy issues, and often don’t realize that proposals advanced in a time of crisis may actually exacerbate it or benefit narrow interest groups at the expense of the general public. Unlike much of the New Deal legislation, the health care bill has become quite unpopular. But public opposition would likely have been much stronger if more people realized that it was likely to increase unemployment, at least in the short run.

III. Will the Health Care Bill Become Permanently Entrenched?

The health care bill is also similar to previous historical examples of crisis-enabled legislation in so far as it will be extremely difficult to reverse. Sixty-five years after the Great Depression, we still have the kinds of perverse agricultural cartels created by the AAA, as well as numerous other dysfunctional policies first sold to the public as efforts to alleviate the Depression.

By creating a wide range of new entitlements and interest group payoffs, the health care bill is also likely to become entrenched over time, and even increase in scope. For example, the mandate requiring individuals to purchase insurance will create a ratchet for further expansions of government, as various interest groups lobby to increase the range of conditions against which people are required to buy insurance. Even if the Republicans retake control of Congress in the fall, they are unlikely to be able to repeal the bill in the face of Democratic opposition and a veto by President Obama. By the time a Republican president might be elected in 2012 or 2016, the new entitlements created by the bill will be sufficiently entrenched that they will be even more difficult to repeal or even limit – just as it has become extraordinarily difficult to constrain Medicare and Social Security.

Ultimately, the political lesson of the health care bill is that the combination of crisis and single-party control of the White House and Congress leads to massive government growth even in a situation where the proposal in question faces public skepticism and unified opposition by the minority party. I don’t claim that this by itself proves that the bill is a bad policy. But it does teach an important lesson about the dynamics of government in times of crisis.

UPDATE: The original version of this post went up just a few minutes before the bill passed. I have changed the language to reflect the fact that the House has now actually voted for the Senate bill.