At first glance, I thought my informal bet—that a red-state governor will soon claim he stood up to the Obama administration over the formation of health exchanges, despite knowing full well that his or her constituents wouldn’t be eligible for tax subsidies—had died a quick death.
According to a report in the Wall Street Journal:
A number of states are scrambling to show that they—not the federal government—are or will soon be operating their insurance exchanges under the 2010 health law, in light of two court decisions this week.
The efforts are aimed at ensuring that millions of consumers who get insurance through the exchanges would be able to retain their federal tax credits if courts ultimately rule against the Obama administration.
The rest of the story, however, doesn’t bear out this picture of “scrambling.” It’s true that a few of the states mentioned—Idaho, Nevada, New Mexico—have Republican governors. And while Arkansas is bona fide red state, it has a Democratic governor. So we’re not talking here about the likes of Rick Perry or Sam Brownback “scrambling” to secure tax credit eligibility on behalf of their states. That’s to be expected. If such governors were willing to forgo expanded Medicaid money, I don’t see why they’d be in a rush to protect health exchange subsidies, either.
There’s a golden political opportunity in the offing, it seems to me. The aforementioned Perry; or Louisiana’s Bobby Jindal; or New Jersey’s Chris Christie; or Ohio’s John Kasich—one or all of these potential presidential contenders could appeal to their party’s base by making a fresh case that they refused federal blackmail. At the very least, they could ensure the Gruber-gate story has legs for weeks to come.
Mind you, I’m not saying I’m prepared to believe them. (One would think the argument would already have been made at some point over the last two years.) But this whole rotten enterprise is an exercise in post hoc opportunism. This is the next logical step.
A few more thoughts on Gruber-gate:
1. It seems the exponents of the D.C. Circuit’s ruling on Obamacare subsidies have moved from the position that the ACA passively fails to authorize tax credits through federal exchanges to the idea that it actively prohibits them. That’s pretty astonishing.
2. A second clip featuring Gruber surfaced in which the MIT economist said the same thing he did in the first video. I don’t know what more to add to my reaction to the initial revelation. It seems to me that Gruber did not “misspeak” on either occasion; he believed residents of states that hadn’t set up exchanges would miss out on subsidies until such time as the federal exchanges came online. It’s plausible, too, that he was encouraging states to cooperate with the law in order to score consulting contracts. One could see why he’d be loath to admit this now.
3. There’s another meme that’s about to be set loose: that it took “guts” for Republicans not to set up Obamacare exchanges, that is, accept the bribe of federal money. It’s only a matter of time before a Republican governor says he interpreted Obamacare in this fashion all along. Perhaps one with presidential aspirations—say, Rick Perry. I’ll take bets on who it will be, and when.
Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid. Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback: Medicaid is use it or lose it; the exchanges are do it, or the feds step in and do it for you. In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA). If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program—the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies. More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012). The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate. If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional.”
This wiki entry on the Clean Air Act seems apposite:
Although the 1990 Clean Air Act is a federal law covering the entire country, the states do much of the work to carry out the Act. The EPA has allowed the individual states to elect responsibility for compliance with and regulation of the CAA within their own borders in exchange for funding. For example, a state air pollution agency holds a hearing on a permit application by a power or chemical plant or fines a company for violating air pollution limits. However, election is not mandatory and in some cases states have chosen to not accept responsibility for enforcement of the act and force the EPA to assume those duties.
Again: I can’t believe this contest is even necessary. Sigh. Carry on.
Conservative economist Scott Sumner offers up a desperately needed example of intellectual honesty on l’affaire Gruber. (For those who haven’t been keeping score at home: Some libertarians last night released a video of Obamacare “architect” Jonathan Gruber in 2012 seemingly affirming the reasoning of the D.C. Circuit Court’s ruling on the legality of offering healthcare subsidies via exchange.)
Sumner actually watched the video and noticed Gruber’s remarks were taken out of context (context: what a concept!):
That seems to suggest he agrees with the recent court ruling. But he actually disagrees with the ruling. Indeed he seems to regard the ruling as ludicrous. That doesn’t look good. Until you realize that the quote was taken out of context, and that the comments immediately preceding the quote tells a very different story: “Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.”
That seems to imply the federal backstops would provide health subsidies. So how can we reconcile these two statements? I believe Gruber was trying to say that the federal government was being slow in setting up the exchanges, because until they did so, those states without state exchanges would get no subsidy. Once the federal exchanges were set up, they would all get the subsidy.
What I don’t understand is why commenters were providing me with the quote on top, but not the second quote, which provides important context.
The cherry-picking of off-the-cuff remarks isn’t the worst thing about this absurdist drama. Take a step back: Michael Cannon, the Cato mastermind, basically went on a fishing expedition to find someone with standing in the Halbig case. His lightbulb: the average citizen has standing! And now this bombshell video: the Gruber remarks were the first and so far only piece of documentary evidence I’ve seen that anyone actually believed subsidies weren’t intended to be offered via the federal exchanges. This evidence was discovered two years after the lawsuit was filed.
We already had a murder charge without a body; now we have a smoking gun with all its bullets. I’m sorry. We’re not in the realm of reasonable disagreement. The charitable explanation is that this stuff is pure unmitigated cuckoo cockamamie BS. The cynical explanation, per Sumner:
BTW, which of the following two statements represents the conservative view on the role of the courts?
A. The courts should interpret the laws passed by the duly elected members of Congress, and should not be substituting their own views. Original intent is what matters. Unelected judges should not set policy.
B. Yay!! the courts have just gutted the ACA, which was an awful law passed by Congress.
I used to think it was A; now I wonder if it is B.
You’ll pardon me if I don’t find this behavior—this abusive legal chicanery—the least bit “conservative.”
Decades ago, a few friends and I were listening to Not For Kids Only, an album of Appalachian folk songs recorded for charity by Jerry Garcia and David Grisman. An older brother entered the scene, barking, “What’re you guys listening to? This stuff’s for kids!” My friend, who, it should be noted, was quite stoned, retorted, “No! It says right here—‘not’ for kids only.’ ”
I thought of my old buddy, bless his heart, when I learned of the D.C. Circuit’s ruling—its “ringing affirmation … of the rule of law,” according to the reliably florid Charles C.W. Cooke—on Obamacare’s insurance-exchange subsidies.
The right’s chortling reaction, in sum: It says right here — “Exchanges established by the State”!
I’d sincerely like to imagine that Cato’s Michael Cannon was stoned when he discovered this quirk in the text of the Affordable Care Act. But I’m afraid it’s a lot easier to imagine the pinkie ring and prideful guffawing of Mike Myers’s Dr. Evil.
I didn’t think “They’re going to make you buy broccoli next” could be topped.
Oh, was I wrong.
The two judges who comprised a majority of the D.C. Circuit panel argued that the government failed to provide evidence that the authors of the law did not intend to funnel subsidies through state exchanges only. Well, why would such evidence exist—if, as seems exceedingly likely, it never occurred to anyone that the subsidies were so structured until Cannon announced his discovery? “It was a carrot dangled in front of states, just like the promise of more Medicaid money,” the plaintiffs speculated. If so, then why the backstop of a federal exchange? What’s the point of the thing if not to convey subsidies to eligible customers? Much to the dismay of supporters of the ACA, there was no Plan B after the Supreme Court allowed states to opt out of the Medicaid expansion. And so the money remains unspent.
There’s no getting around the fact that those who drafted the law are guilty of a linguistic oversight. In a sane world, the matter would have been dispatched through a technical corrections bill, much as President Clinton and Congress ironed out a kink in U.S. Code that granted citizenship to those born abroad and one of whose parents was a U.S. citizen. Before the correction, the government granted citizenship only to those whose fathers were citizens.
But we’re not living in a sane world right now. We’re living in the world of massive resistance.
Don’t misunderstand. I’m hardly a fan of Obamacare. I’m with those who champion a cheaper and cleaner method of achieving universal coverage. I suppose it could be argued that the Halbig case is one way of getting there. But when its mastermind heads the “Anti-Universal Coverage Club,” I kind of doubt it.
The Guantanamo Bay detention center briefly reasserted its presence in the public consciousness this month with the news that a single Navy nurse refused to participate in the force-feeding of detainees on hunger strike. Quietly feted by civil liberties advocates, the story quickly slipped off the radar. The Pentagon confirmed that the nurse “has been temporarily assigned to alternate duties with no impact to medical support operations”—in other words, the torturous force feedings, instituted in 2006, will continue unabated.
Gitmo currently houses 149 inmates. Fewer than 20 detainees have been charged, and 78 are cleared for release—a status some have held for more than half a decade. About 45 prisoners are scheduled for indefinite detention, never to see a day in court.
The tepid response to the nurse’s moral stand is not surprising. Despite the fervor of outspoken antiwar protesters during the Bush years, the broader public has never cared much about the welfare of those imprisoned in Guantanamo Bay, innocent or no. Support for closing the facility peaked at 51 percent in early 2009. That high corresponded with the first inauguration of President Barack Obama, who took office trumpeting his intentions to put an end to Bush-era abuses like Guantanamo, which he labeled a betrayal of American ideals.
A year after the inauguration, the Obama administration’s now-extensive history of Gitmo excuse-making was well underway. “Political opposition” caused the President to break his promise. Temper your expectations, an anonymous White House official suggested, “The president can’t just wave a magic wand and say that Gitmo will be closed.” But of course—of course!—it’s still going to happen.
Come 2011, we found the President admitting that the facility won’t be closed in the near future. “[W]ithout Congress’s cooperation, we can’t do it,” he said. “That doesn’t mean I stop making the case.” And that narrative—the “I really want to close Guantanamo, but Congress just won’t let me!” line—has persisted ever since, typically with a heavy dose of partisan undertones. As Obama moved an issue he once called vital to the restoration of the United States’ moral authority to the backburner, public opinion followed his cue. By 2010, only 39 percent supported closing the prison. Today, just 27 percent are on board.
What’s fascinating about this unwillingness to close Guantanamo Bay as observed in government and citizens alike is the way it encapsulates the charade of modern American politics: a GOP that abandons its support for limited government out of fear, and a Democratic Party whose civil libertarianism is built more on partisan rancor than ethics.
Let’s look at the Republican opposition first—for those partisan undertones in Obama’s narrative are two-faced but not unfounded. Led by hawks like Sen. Lindsey Graham (R-S.C.), congressional Republicans have indeed worked to keep Gitmo open. Polling suggests they have the full support of their GOP constituents—no less than 81 percent want the detention center to stick around—and even Sen. Rand Paul (R-Ky.), perhaps Graham’s staunchest foreign policy opponent in the Senate, agrees with his South Carolinian colleague on this point.
But what about Gitmo meshes with the small government philosophy Republicans espouse? Each prisoner costs taxpayers $2.7 million annually, a massive failure on the fiscal responsibility front (federal prison, for comparison, spends $26,000 a year per inmate).
Even worse for conservatives should be the prison’s blatant trampling of constitutional rights. Read More…
On June 17, The American Conservative will convene leading thinkers from across the political spectrum at George Washington University for a wide-ranging conversation about American foreign policy after the War on Terror.
The goal of the New Internationalism conference is to address America’s role in the world after Afghanistan and Iraq, and to discuss alternative visions for protecting America’s core security and economic interests in the new global framework.
The American Conservative and our co-sponsors The American Prospect and the Institute for Security and Conflict Studies at GW will build on the emerging consensus that favors prudence, the rule of law, and diplomacy. We hope you can join us!
For more information and to register, visit theamericanconservative.com/newinternationalism. The event schedule is after the jump:
Tara McKelvey is a features writer at BBC News in Washington. She is the author of Monstering: Inside America’s Policy of Secret Interrogations and Torture in the Terror War. We asked her a few questions about the Senate torture report, Donald Rumsfeld, and her book 10 years after the Abu Ghraib scandal.
1) Have you been following the leaks from the Senate inquiry into CIA
torture of detainees’ post-9/11? What do you make of reports that the CIA lied to the government and the public about the scope and effectiveness of the torture program?
Yes. I’m not sure if I would say “lied.” I don’t think we know enough to say they’ve done that. They have kept a lot of things hidden, and people on the Hill are trying to convince them to say more.
If enough of it is declassified, what will the Senate report tell us?
Who knows. But one thing I’ve wondered about is the interrogation methods that didn’t get approved. The former top lawyer of the CIA said in his memoir, Company Man, that they vetoed one method. Given all that they did, I am wondering what they decided was beyond the pale.
2) We recently marked the ten-year anniversary of the Abu Ghraib scandal. Your goal was to get beyond the frame of the Abu Ghraib photographs, and Monstering provides an account of extreme disarray there: interpreters who weren’t tested on language proficiency, private contractors with sectarian allegiances, a prisoner to guard ratio of 75 to one, soldiers who were told that they could “do whatever they wanted” to the detainees. What was the most surprising thing you learned while reporting the book?
How hard it was to give everyone their due. There is a German writer, Friedrich Hebbel, who once said: “In a good play…. everyone is right.” But when I interviewed Lynndie England, I had to keep reminding myself to give her the benefit of the doubt. A lot of people saw her as a monster, and I didn’t want to do that. Otherwise, I kept telling myself, I would be just like the people at the prison–the ones who didn’t see the detainees as fully human. But she was difficult to talk to–and she was at the prison when terrible things happened, and, anyway, I was surprised how hard that interview was.
3) What is the legacy of the scandal today as the U.S. winds down the War on Terror?
Obama outlawed torture. But years after he promised to close Guantanamo, it is still open. There is a place on the island called Camp 7 that is off-limits to virtually everyone, including journalists. That is where the people are who were once kept in the CIA’s black sites. That is one legacy of the scandal.
4) Monstering also addresses the elite policymakers (John Yoo, et al) who contributed to a climate of systemic abuse at Abu Ghraib and elsewhere. You conclude that instead of asking “how could this happen?” the question is really “how could this not have happened?” Several soldiers involved in the scandal, including Lynndie England, were sentenced to time in prison, but so many haven’t been held accountable. What do you make of this?
That it’s not completely surprising, but it still seems wrong. Putting soldiers on trial when they have committed crimes is not a slight against the military, but unfortunately some people think of it that way.
What policy measures have been put in place (by the army if not the CIA) to prevent future abuse?
Most people in the army were horrified by the abuses. They had rules in place before the Iraq war, and they are now making sure that the rules are followed more carefully. The worst abuse was carried out not by people in the military, though, but by people who worked for the CIA. They may have done tons of things to prevent future abuse, but they haven’t really talked about it.
5) Any thoughts on Errol Morris’s new Donald Rumsfeld documentary? Read More…
Talk of bipartisan prison form has rallied spirits in Washington in recent weeks, and was a topic of hope at CPAC last month. Though American politics may suffer schismatic divides in many issues, maybe—just maybe—we can find agreement here.
But it’s interesting how many are framing the debate—while the left’s motivation is largely viewed as humanitarian, the right’s motives are seen as decidedly pragmatic: prisons are costing us too much. Let’s change that.
Of course we can appreciate this pragmatism, but where is the principle and conscience in our prison reform views? Do conservatives only think in dollar signs?
In a conversation with Idaho Rep. Raúl Labrador some weeks ago, he agreed that prison reform makes fiscal sense—but expanded conservative interests into the ethical sphere. He argued that as a Christian and defender of justice, our system ought not consign so many people to rotting in jail. “Because of the fear of crime,” he said, “We keep making it easier and easier for the state to take away your liberty and your freedom … we shouldn’t be throwing people in jail for long periods of time over non-violent offenses.”
Is this something other conservatives should be on-board with? Take solitary confinement, for instance: as conservatives, should we support it—and to what extent is it also deserving of reform?
A Wednesday piece by Lisa Guenther for Aeon provides some good philosophical reasons to oppose solitary confinement. She argues that, since man is (as Aristotle put it) a “social animal,” it is spiritually, emotionally, and psychologically deleterious for him to be alone. We depend on “the other” to undergird and reinforce our experience, our reality. Without that, the soul and mind are cut loose:
When we isolate a prisoner in solitary confinement, we deprive him of this network of perceptual and existential orientation. He might still have an experience of the table that is bolted in place in his cell, and he might still have the memory of what tables mean for other people. But the lived experience of these objects as both for-me and for-another is, by and large, denied to him. The ‘there’ that would otherwise anchor his experience of the world from ‘here’ has been pulled up, casting him adrift without a clear view of the horizon.
We may live in a rather individualistic society—but we never have to experience life in total solitude. “Only the prisoner in solitary confinement is forced to occupy the position of an isolated individual, and to bear the full weight of his existence alone,” writes Guenther. Traditional conservatism opposes individualism—it upholds the important and reforming nature of community. Should this principle extend to our penal system?
It depends, to some extent, on what you think prison is for. Those who believe in “locking up prisoners and throwing away the key” have a good, strong understanding of human depravity. But their belief in redemption is somewhat lacking. This is, perhaps, the largest problem I see with solitary confinement: it leaves absolutely no room for reform of the person. Instead, it turns the soul further toward its inner depravity, and keeps it locked there, away from “the other.” This may keep the individual from harming others—but it also leaves no room for the soul to grow or emerge from its inner prison.
True conservative prison reform should consider the impact such measures have on the human psyche and soul—not merely their monetary cost.
An interrogator isn’t just focused on extracting information, but on controlling it. When a closer sits down with a prisoner, she wants her prey to be entirely dependent on her for information about possible sentences, news of the outside world, or even the time of day, so she can manipulate or bargain with the truth as serves her needs.
As revelations from the Washington Post show, this is precisely the relationship that the CIA has been cultivating with Congress throughout the War on Terror. The recent allegations that the CIA hacked into the computers of Congressional staff and tried to erase damaging documents is only the latest salvo in the agency’s war of obfuscation. The CIA has overstepped its authority and then lied to Congress, to prevent the people’s representatives from reining the operatives in.
Current and former U.S. officials spoke anonymously to the Washington Post about the content of the classified report that the CIA has tried to sideline. Although the report on CIA detention and interrogation was completed in 2012, it has been tied up in bureaucratic red tape, and not one page of the 6,300 has been declassified. The Senate Intelligence Committee is expected to vote this Thursday to recommend that Obama declassify the executive summary of the report.
Until then, judging by the leaks, it looks more and more like the CIA was engaged in unlawful practices. Not just the morally unlawful practice of waterboarding, which was nevertheless approved from on high, but other forms of torture that had no official sanction. The Washington Post describes the CIA’s treatment of the nephew of Khalid Sheik Mohammed:
At the secret prison, [Ammar al-]Baluchi endured a regime that included being dunked in a tub filled with ice water. CIA interrogators forcibly kept his head under the water while he struggled to breathe and beat him repeatedly, hitting him with a truncheon-like object and smashing his head against a wall, officials said.
This practice of near drowning and beating has never been authorized as an interrogation procedure. But, according to the Human Rights Watch, other prisoners at the same secret prison received the same treatment. CIA doctors stood by during these abuses, carefully checking the health of the prisoner, but serving the interests of the agency, helping the torturers push the bodies of their prisoners as far as they could go without killing anyone, presumably to avoid paperwork and oversight.
These acts of abuse did not result in useful intelligence. The Congressional report makes it clear that some prisoners were waterboarded after giving up useful data, and, although the brutal treatment produced no new information, the original revelations were used as evidence for the necessity of the technique. According to one of the Washington Post‘s anonymous sources:
“The CIA described [its program] repeatedly both to the Department of Justice and eventually to Congress as getting unique, otherwise unobtainable intelligence that helped disrupt terrorist plots and save thousands of lives,” said one U.S. official briefed on the report. “Was that actually true? The answer is no.”
The CIA might be able to claim it concealed the full scope of its activities from the American people due to national security reasons, but it’s very hard to believe that briefing Congress honestly would give terrorists an edge.
The evidence suggest that the CIA has gone rogue—imprisoning and torturing suspects, misleading their superiors, and trying to hide the evidence. The declassification of Congress’s report can’t come soon enough, so we can assess the damage the agency has done, and decide how to keep it under proper supervision and surveillance.
Today’s Supreme Court oral argument, in the case of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, is correctly understood to pit defenders of religious liberty against those who believe that the government has a compelling interest in requiring employers to provide contraception, abortifacients, and sterilization services through their healthcare policies. In significant part, the case hinges on whether the companies—privately held businesses whose owners are unquestionably deeply religious individuals, and who run their businesses informed by those views—can be considered “persons” under the Religious Freedom Restoration Act. I, like many Christians, hope their case prevails.
But while the businesses are often characterized as “family-owned businesses,” each is a national business with hundreds of employees and multi-state operations. Hobby Lobby is by far the larger chain, with 640 stores that employs 28,000 individuals. While it has religiously-themed goods, plays Christian music, and closes on Sundays, in most respects it is identifiably a “big-box” store that can usually be found in major retail corridors, surrounded by acres of concrete and provisioned largely by merchandise made in China. While it is a “family-owned” business, it is hardly a mom-and-pop shop.
The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. It is almost wholly disembedded from any particular community; its model, like that of all major box stores, is to benefit from economies of scale through standardization and aggressive price-cutting, relying on cheap overseas producers and retail settings that are devoid of any particular cultural or local distinction. The setting where one finds Hobby Lobby near us—on Grape Road in nearby Mishawaka—is about as profane imaginable a place on earth, accessible by six lanes of concrete roads where there is a heavy concentration of large chain retailers, where it anchors a sensory-deadening row of retail store fronts that border acres of cracked and barren pavement, awash in discarded plastic bags and crumpled fast food wrappers. On the rare occasion that I enter the store, even amid the Chinese mass-produced crosses and the piped in Christian music, under the endless florescent lighting and displays carefully-managed to optimize impulse buying, I am hardly moved to a state of piety, prayer, and thanksgiving. I am, like everyone else, looking for the least chintzy item at the cheapest price.
Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. He described a sea change of economic practice that took place especially beginning in the 19th-century, but whose theoretical groundwork had been laid already in the 17th- and 18th-centuries by thinkers like Thomas Hobbes, John Locke, and Adam Smith. As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. “Ultimately that is why the control of the economic system by the market is of overwhelming consequence to the whole organization of society: it means no less than the running of society as an adjunct to the market. Instead of economy being embedded in social relations, social relations are embedded in the economic system.” Read More…