Monday, June 29, 2015

The Greek Crisis: Too Little Democracy, Too Much Bureaucracy

By John Fund
Sunday, June 28, 2015

The grand project of European Union bureaucrats — bringing the united continent under ever tighter centralized control exercised from the EU capital of Brussels — is the real sick man of Europe.

Greece has closed its banks for at least a week, banned the cashing of checks, halted almost all payments outside the country, and limited the amount of money that an individual can withdraw from an ATM to $66 per day.

All of this came after the European Central Bank ended more emergency loans needed to keep the Greek banking system afloat. That move was in retaliation for the decision by the far-left Greek government to reject new bank-bailout terms from its creditors and instead call a referendum on July 5. On that day, the Greek people will be asked to make a choice: either “surrender” and give in to cuts in pensions and higher taxes or refuse and perhaps be forced to exit the euro and go back to a depreciated drachma as their national currency.

There will be endless discussion about who bears the most blame for the Greek crisis: a series of profligate Greek governments that often veered into outright corruption or the euro-zone governments that allowed Greece to borrow at artificially low interest rates while they overlooked the obviously flawed statistics touting the health of the Greek economy.

I gave a series of lectures in Greece in May and am certainly not going to defend the magical thinking of many Greeks or their incompetent leftish government when it comes to economics. But let me say something in defense of Greece. Echoing my National Review Online colleague Andrew Stuttaford, I note that at least the Greeks are letting their people have a direct say in their future — a fitting move given that Greece gave birth to the democratic ideal.

The bureaucrats in Brussels and their counterparts in Europe’s national governments are furious with the Greeks for daring to consult their own people. Daniel Hannan, a British member of the European parliament, sarcastically tweeted, “Calling a referendum is, to Eurocrats, the most offensive thing a politician can do.” Stripped of their veneer, Eucrocrats’ arguments against all referendums amount to saying that referendums are a bad idea because they shift power from small cliques of unelected but wise rulers to an unsophisticated, nationalistic mob that might fall prey to populism, scare stories, and tabloid headlines.

Hannan, familiar to National Review readers as one of his country’s most articulate conservatives, wrote to me today, saying that while the Greek tragedy will cause much unneeded pain, it also provides a valuable lesson about the perils of ever greater political centralization:

    We can see, in Greece, how the EU project ends: in the almost total control of a country’s affairs by Brussels. Greeks now have a chance — as Britons soon will — to opt instead for independence. We have been told for decades that European integration was necessary to our economic well-being. When the euro was launched, the European Commission solemnly assured us that it would add an extra 1 percent of annual growth to every participating economy in perpetuity. As Sarah Palin might put it, “How’s that workin’ out for ya?”

It’s not as if European voters have been blindly following their Brussels “betters” in pursuing unity at all costs and against common sense. In 2005, a new EU constitution, which aimed to centralize the continent under a “president” of Europe, was heavily rejected, first by a referendum in France, then by a Dutch referendum. Andrew Duff, a Liberal Democrat member of the European Parliament, gave voice to many of his colleagues when he ridiculed opponents of the proposed EU constitution as “an odd bunch of racists, xenophobes, nationalists, communists, the disappointed centre left, and the generally pissed off.” Duff said it was unwise to “submit the EU constitution to a lottery of uncoordinated national plebiscites.” After all, that would be democracy.

The EU shrugged off the French and Dutch defeats and proceeded to produce the Lisbon Treaty, another governing document that differed only in very minor details from the rejected one — but this time, the document wouldn’t be trusted to most voters. The Irish government, however, followed its laws and allowed its citizens to vote on the Lisbon Treaty in a referendum in 2008 — and voters rejected the treaty. EU bureaucrats dismissed the result as the work of “populist demagogues” and forced the Irish — with a combination of threats and virtual bribes — to vote again on the issue. The second time, the EU prevailed.

Bureaucrats ignored all warning signals that the EU and the euro were on a dangerous path — and here we are, enmeshed in the Greek crisis. Once again the Eurocrats in Brussels remain defiantly unaccountable. Jeroen Dijsselbloem, the Dutch minister who chairs the Eurogroup monitoring the crisis, just announced that his group would hold “a meeting of the 18” — the Eurogroup without Greece. According to a Greek witness, when Dijsselbloem was asked how such a meeting could make decisions, he answered, “We can do what we like since we are an ad hoc body.”

No one should pretend that the Greek prime minister, Alexis Tsipras, called a referendum out of a sincere belief that the voters should be consulted. The Greek Communist newspaper Rizopastis, which opposes holding a referendum and is urging voters to spoil their ballots, properly points out that he is trying to avoid responsibility for making any decision. Indeed, Tsipris is clearly a shameless, opportunistic politician. He opposed a similar referendum when former center-left Greek prime minister George Papandreou proposed it in 2011.

But for all the perfidy of the Greek government, it is, at least in its moment of crisis, returning to the roots of the democratic ideal: that it is the people, not experts or elites or aristocrats, who should have the ultimate say on those matters that must ultimately be settled politically. Here’s hoping the Greeks wake up their fellow Europeans to the fact that if they want to ensure a prosperous and free Europe for their children, politics is too important to be left to non-transparent Eurocrats.

Tsipras Throws Greece off a Cliff

By Tom Rogan
Monday, June 29, 2015

    Is this a dagger which I see before me, the handle toward my hand? Come, let me clutch thee.

That line, from Shakespeare’s play, Macbeth, refers to the protagonist’s subconscious thoughts of murdering a king and usurping his throne. Shakespeare’s quote is analogous to what’s happening in Greece.

Because today, Greek prime minister Alexis Tsipras of the far-Left Syriza party is chasing the dagger. And he’s targeting his own country. Thanks to Tsipras’s “leadership,” Greece is now under capital controls, and its banks are shuttered. Rather than compromise to save Greece from immense hardship, Tsipras has instead chosen deepening crisis. He’s holding a July 5th referendum on the creditors’ bailout terms.

But that choice isn’t born of tough leadership, it’s a consequence of Tspiras’s political gamesmanship. He hopes that by stoking nationalist pride, he’ll force EU creditors to surrender. Yet the EU is far more likely to let Greece collapse. This was always a strong possibility. From the moment Greek voters made their choice and put Tsipras in office, he’s embraced a “dumb and dumber” strategy. But since then, Tsipras has transitioned from stupidity to absurdity to vaudevillian extremism.

Consider the facts: $356 billion in debt, Greece obviously needs massive structural reform. But even now — at the crunch moment — Tsipras offers no serious reforms. Instead, he proposes increasing taxes on large companies and increasing employee pension contributions. In essence, Tsipras is doubling down on what has ruined Greece: its decaying, inefficient economy and its repellant investment environment. Most indicative, Tsipras has refused pension cuts or increases to pension-eligibility ages. Facing the 75 percent of Greece’s pensioners who retire before 61 years of age, and other vested interests — read this Reuters article from 2011 (few reforms have occurred since) — Tsipras yields. Still, with an elderly population and no population growth, Greece cannot ignore facts forever. Its pension crisis will only worsen.

Some say that Tsipras has been forced into this position by German chancellor Angela Merkel’s refusal to offer more concessions. But consider the European Commission’s final bailout offer. It was hardly extreme. In return for long-term support, the commission would have required Greece to reform its dysfunctional tax system, force competition in closed industries, and cut patronage-based economic subsidies. In short, the plan offered structural reforms to give Greece a new start. Sadly, in response, Syriza offered clown-like suggestions such as demanding war reparations from Germany.

But like Macbeth, Greece’s sinking future is undeniable: Interest rates on ten-year government bonds are 10.6 percent; its March unemployment rate was over 25 percent. Indeed, in February, Greece’s unemployment was over 50 percent for those under the age of 25.

There’s a broader issue at stake here. Whatever Syriza might claim, these statistics aren’t ultimately born of economic austerity (the U.K.’s austerity example proves otherwise). Rather, they are testimony to an abiding economic truth: Unreformed socialism stagnates economies, kills opportunity, and catalyzes human suffering.

Yes, to be sure, the European Union’s incessant idiocy — attempting to blend many cultures, languages, and political philosophies into one centralized, largely unaccountable bureaucracy — has denied Greece the flexibility to solve its own problems. Nevertheless, Syriza’s socialism offers no answers. The opposite is true: Unchecked, Syriza will bury Greece, and Greeks must face this reality. Tsipras certainly won’t. Like Macbeth, Tsipras seeks glory from his country’s loss. But unlike Macbeth, Tsipras’s stupidity won’t just ruin him; it will ruin Greece.

The Increasing Clout of a Terrorist Force

By Mike Rogers & Arthur L. Herman
Monday, June 29, 2015

‘We welcome war with the U.S., as we believe that it will be the scene for our success to display the real potentials of our power.” So said Brigadier General Hossein Salami, the lieutenant commander of Iran’s Islamic Revolutionary Guard Corps (IRGC), via state-run Iranian television last month.

What makes Salami so confident about going up against the world’s most extensive military? Maybe it’s the increasing clout of IRGC’s elite terrorist division, the Quds Force, in the Middle East, including its very public involvement in the fighting against ISIS in Iraq — as America’s influence lessens in that conflict.

Eight years ago, the Quds Force was killing Americans in Iraq. Now the administration is on the brink of a deal with Iran that will give that brutal and shadowy group the green light to expand its export of the Iranian revolution under the protection of a nuclear umbrella.

There is a growing consensus among Democratic as well as Republican lawmakers — not to mention the rest of the world — that the Obama administration is set to make a very bad deal on Iran’s ongoing nuclear-weapons program. It is a deal that creates an oversight regime full of loopholes and fails to fetter weaponization or missile development or impose free inspections of nuclear facilities, while allowing Iran to dodge questions about whether it tried to build a bomb in the past. It will not even require Iran to halt enriching uranium — one of the original goals of the talks — and it comes with a ten-year expiration date.

Yet the implications of allowing Iran to continue its nuclear program go beyond triggering runaway nuclear proliferation among Arab states in the region. It will also empower the operatives of Quds Force to continue to expand their bloody activities, as we sit on the sidelines.

The Quds Force is the secretive spearhead of Iran’s push for hegemony in the Middle East. Named after the Arabic word for Jerusalem, it is part intelligence service and part special operations. It has been training and equipping Islamic revolutionary groups around the Middle East for decades, and it is responsible for some of the most notorious terrorist acts in the world. It has been a key trainer and sponsor of Hamas and Hezbollah in their ongoing fight to destroy Israel and murder Jews. In 1994, for example, the Quds Force helped to plan and finance an attack by Hezbollah on a Jewish center in Buenos Aires that killed 85 people.

Then, following U.S. operations in Iraq in 2003, the Quds Force quickly moved in to finance, train, and equip counterinsurgency groups, both Shiite and Sunni, to kill Americans. In fact, the Quds Force played a key role in the expansion of the use of IEDs against Americans in Iraq in 2004–5. Many of those weapons had parts manufactured in Iran. Hundreds of American deaths in the Iraq War can be traced directly to Iran, the IRGC, and the Quds Force.

On January 20, 2007, gunmen opened fire on personnel at a base in Karbala, killing several U.S. servicemen. Evidence suggests that they were Quds Force operatives. General David Petraeus testified to Congress that recovered laptop computers from those operatives contained plans for the Karbala attack. The money and training came from Quds Force personnel.

It is not as if the administration is ignorant of the Quds Force’s record. The president’s former secretary of defense, Robert Gates, warned constantly about Iran’s role in funding and supplying the insurgency not just in Iraq, but Afghanistan as well. When a plot to assassinate the Saudi ambassador in Washington, D.C., was exposed in 2011, Attorney General Eric Holder acknowledged that the Quds Force was involved. It is known that the Quds Force reports to the supreme leader and not the Iranian president.

President Obama himself had accused the Quds Force of helping Bashar Assad crush the demonstrations that broke out against his regime during the Arab Spring — not to mention the terrorist group’s murderous role in the ongoing Syrian civil war as described by Director of National Intelligence James Clapper.

This is what the Quds Force is capable of without the protection of a nuclear weapon. Imagine what they would do with the security guarantee that comes with that ultimate deterrent, without fear of reprisal from the West or other Arab states.

Yet the administration seems to be blind to the threat, or to be examining the nuclear program separately from the rest of Iran’s foreign policy. Just a month ago the administration ordered our military to conduct air-support operations for the forces fighting in Iraq’s Tikrit — Shiite militias led by the Quds Force’s top commander. Now it may have to send in American planes in support of those same militias in the campaign to retake Ramadi.

Asking U.S. pilots to risk their lives to help the Quds Force, in any capacity, is a sad change given Iran’s role in the deaths of so many of our fighting men and women. Giving this terrorist group a nuclear umbrella, and by extension an inviolate base from which to plan, train for, and finance attacks, poses a direct danger to the region and the world. It is one more reason why the current nuclear deal the administration seems so desperate to get needs to be scrapped.

Jimmy Carter Tries To Rewrite Israel’s History

 By David Harsanyi
Monday, June 29, 2015

Jimmy Carter’s new book, “A Full Life: Reflections at 90” is a breezy and predictable reminiscence of the 39th president’s life, from his rural Georgia upbringing to his post-presidential charitable work. You should take it out of the library. I can’t admit to reading every word, but I did have a particular interest in the parts focusing on Carter’s perception of his own presidency. And, as you might have guessed, according to Jimmy Carter Jimmy Carter is one of the dynamic and indispensable leaders this country has ever known.

One chapter that might catch the attention of a curious reader is titled “Issues Mostly Resolved.” So what issues were solved during the Jimmy Carter years? Well, “Human Rights and Latin America,” “The Hostage Crisis, and the Final Year,” “Hungarian Crown,” “China,” and yes, “Middle East Peace.”  Good to know that he put that one to bed.

Carter claims that during his 1976 campaign, many voters were seeking assurances about his good will towards Israel. It’s then, says Carter, that he “became increasingly interested in bringing permanent peace to Israel and its neighbors.” The subsequent subchapter not only offers an absurd framing of the Middle East conflict in the late 70s, but it’s built upon a complete myth. Carter claims to have single handily convinced a reluctant and fascistic Menachem Begin to come to terms with kind-hearted and amenable Anwar Sadat. It took that Carter personal touch.

    One weekend when our family was enjoying Camp David, Rosalynn suggested that this would be an ideal place for negotiating teams to benefit from the privacy and quiet atmosphere. I agreed with her and sent handwritten invitations to Begin and Sadat in August 1978 to join me for comprehensive peace talks. They both accepted.

Carter expediently skips one historic event that puts his handwritten notes into some perspective.

In 1977, during an interview with CBS, Sadat mentioned that if he were ever presented with a proper invitation from Jerusalem he would visit without any preconditions. This was, in the context of history,  a courageous thing to do. At a time when no Arab country had diplomatic ties with Israel much less recognized its existence. Begin—who Carter’s paints as a warmonger—immediately presented Sadat with a formal invitation to address the Knesset through the American Embassy in Cairo. The Knesset—with only a handful of opposition votes—overwhelmingly approved the invitation. The Carter Administration had nothing to do with it.

Here is what The Washington Post had to say at the time:

    In Washington, the Carter administration, which until today had played no role in helping arrange what had been an almost unthinkable meeting, appeared to be dramatically revising upward its opinion of the event’s importance.

The peace deal fell into Jimmy Carter’s lap. The United States provided the financial backing to make the arrangement possible, but the idea that Carter precipitated the peace is preposterous. Since he left office, Carter has given moral to all brands of terrorist, dictator and  tyranny. It is one of the most embarrassing post presidencies in American history. Concocting a legacy that isn’t won’t help.

Sunday, June 28, 2015

Ayatollah Roberts and His Sharia Council



By Kevin D. Williamson
Sunday, June 28, 2015

In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says. Which is to say, the Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want.

That texts may be imaginatively interpreted to any end is not news — “The devil can cite Scripture for his purpose,” as William Shakespeare observed in The Merchant of Venice. The legendary constitutional scholar Barack Obama failed to notice, until the day before yesterday, that the Constitution mandates the legalization of homosexual marriage from sea to shining sea, but, to be fair, that is an easy provision to overlook, even for a mind as keen as Barack Obama’s, since the Constitution does not say one word about marriage, much less about the state-level codification of homosexual couplings being a fundamental federal right.

“Jiggery-pokery” is putting it generously.

But scriptural interpretation is a funny business. I grew up on the edges of some wildly entertaining fundamentalist circles in West Texas, and I very much enjoyed hearing mail-order theologians explain how, sometime between turning water into wine at that famous wedding and pouring out a round for the guys at the Last Supper, Jesus very subtly declared alcohol verboten. Put any given text on the rack, and you can prove Ronald Coase’s dictum: If you torture the evidence enough, it will confess to anything.

Constitutional torture is an art, and Chief Justice John Roberts has emerged as its Andy Warhol: an impresario who will put his name on anything.

It is uncomfortable to think about, but our Supreme Court functions in much the same way as Iran’s Guardian Council: It is a supralegislative body of purported scholars, distinguished by ceremonial black robes, that imaginatively applies ancient doctrines “conscious of the present needs and the issues of the day,” as the ayatollahs over there and over here both put it, deciding — discovering! — what is mandatory and what is forbidden as the shifting currents of politics dictate. The main difference is that the Iranians take their sharia rather more seriously than we take our constitutional law: John Roberts’s opinion in Burwell wasn’t just wrong — wrong can be forgiven — it was embarrassing, craven, and intellectually indefensible. Antonin Scalia was right to let him have it with both barrels, but he’d do better to resign from the Supreme Court — it is difficult to see how an honorable man could be associated with it.

The gentlemen who wrote the Constitution did not get around to enfranchising women or abolishing slavery, but they snuck in a constitutional right to gay marriage that we’ve somehow overlooked for 228 years or so: No mentally functional adult, regardless of his views on gay marriage, should be expected to pretend that that is true.

I am in favor of arranging the laws to permit gay couples to arrange their domestic affairs in whatever way they see fit, and to have those affairs blessed by whatever authorities are inclined to bless them: Episcopalian church, Sam’s Club, Taylor Swift, Grand Mystic Royal Order of the Nobles of the Ali Baba Temple of the Shrine — it’s a free country, Sunshine. Unlike Barack Obama, I did not arrive at my views on same-sex affairs recently and at a moment of political convenience. But, that being said, the idea that lurking in the penumbras of our 18th-century Constitution is a fundamental national right to gay marriage is simply preposterous. It is not there. It is a fiction, and, just like the Harry Potter novels, the fact that it is very, very popular does not mean that it is not fiction.

The ranks of the Right are filled with a splendid array of gifted and erudite lawyers with unshakeable commitment to the rule of law. Many of them are my friends and colleagues. But their arguments always leave me a little bit cold. We can debate all day about how many Angels in America can have their first dance on the head of Anthony Kennedy’s pen, but we know that the Court’s liberals are going to vote one way, that some of its conservatives will probably vote another, and that John Roberts and Anthony Kennedy will, if the goblins in their heads are sufficiently insistent, ratify whatever Starbucks-customer consensus exists for 80 miles on either side of Interstate 95. That the chief justice went one way on health care and another on marriage tells us nothing at all about the law or the Constitution: It tells us about John Roberts.

And that is the problem.

Asked what he thought about Western civilization, Mohandas K. Gandhi supposedly quipped that he thought it would be a good idea. Conservatives, if we’re being honest, might say the same about the rule of law. It would be a good idea, at least an interesting experiment. For the moment, though, there’s only power, the men who have it, and the things they do with it.

Saturday, June 27, 2015

Let’s Drop the Charade: The Supreme Court Is a Political Branch, Not a Judicial One



By Andrew C. McCarthy
Saturday, June 27, 2015

‘But this Court is not a legislature.” Chief Justice John Roberts actually published that sentence in his same-sex marriage dissent on Friday . . . a mere 24 hours after his maestro’s performance in the Supreme Court’s legislative rewrite of the Affordable Care Act — formerly known as “Obamacare,” but now etched in memory as “SCOTUScare,” thanks to Justice Antonin Scalia’s withering dissent.

Roberts’s denial that the Court legislates is astonishing in its cynicism: In saving SCOTUScare, the chief justice not only usurped Congress’s law-writing role with gusto; he claimed the powers, first, to divine legislative purpose from its contradictory expression in legislative language, and, then, to manufacture legislative ambiguity as the pretext for twisting the language to serve the contrived purpose.

It takes a Clintonian quantum of cheek to pull that off one day and, on the next, to inveigh against the very thought of it.

Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination.

Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta. 

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists,Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

But not the Court’s lefties, not on the major cases.

And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.

But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.

That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.

If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.

If, for old times’ sake, we want to maintain some harmless vestige of the charade, then let them keep wearing their robes to work — for at least as long as they can persuade voters to keep them in these jobs. Let’s dispense, though, with the fiction that their judgments are the product of legal acumen rather than sheer will.

Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law. The SCOTUScare case, King v. Burwell, was not a constitutional case at all; it was a straightforward matter of statutory interpretation. What made it ostensibly straightforward was the law: a statute that says, “an Exchange established by the State,” cannot possibly mean “an Exchange not established by the State.” If we were a nation of laws, such a case would never make it to the highest court in the land.

But we are a nation of will, the will of a determined political movement, so the law never had a chance.

The Supreme Court is not unique in being captured by progressives. It is a lagging indicator, its crush of late-June edicts reflecting what’s become of the political class of which it is now very much a part. The president rules unilaterally and in contravention of the laws. Half of Congress applauds, the rest shrugs and says there is nothing to be done. The elements of the progressive agenda the political branches don’t feel safe implementing are delegated to anonymous bureaucrats in the administrative state. The courts are there to finish the job, to give any mopping up the aura of legal rigor.

But none of it is about the law, or even expected to be. That time is gone.

The Supreme Court’s ‘Interpretive Jiggery-Pokery’ Decision



By John Daniel Davidson
Thursday, June 25, 2015

The Supreme Court ruling in King v. Burwell affirms a philosophy of governance fundamentally at odds with the meaning and purpose of the U.S. Constitution and the ideals of America—that we should be a nation ruled by law, not by men, still less by unelected bureaucrats in Washington, D.C.

The decision, which preserves subsidies for health insurance on exchanges set up by the federal government in 34 states, amounts to a repudiation of the constitutional principle of separation of powers in favor of rule by an administrative bureaucracy. Recall that the question in Burwell was whether subsidies for health insurance were available on federal exchanges when the language of the Affordable Care Act states clearly that subsidies will be available only on an exchange “established by the state.”

The challengers argued that this was done on purpose, to induce states to set up exchanges—not an easy thing to do, it turns out—since Congress could not simply command states to do so. Thus, when dozens of states declined to set up exchanges, the White House instructed the IRS to issue a rule that, despite the plain language of the statute, exchanges created by the federal government would be the same as those created by the states.

The Court’s decision, which upheld the Fourth Circuit’s ruling, was framed as simple matter of statutory interpretation: does “established by the state” mean what it appears to mean, or does it include exchanges established by the federal government? Chief Justice John Roberts, writing for the majority, concedes the ACA contains “more than a few examples of inartful drafting,” that much of it was drafted behind closed doors and “does not reflect the type of care and deliberation that one might expect of such significant legislation.” He concludes that the statute is ambiguous and that, in the broader context of the law, it is “implausible” that Congress meant to restrict subsidies to state-based exchanges.

In other words, Roberts dismisses the idea that a bad policy outcome is the proper consequence of a poorly-written law. He reasons that because interpreting the statute according to its plain meaning would mean parts of the law would not work very well, Congress must have intended the law to mean something other than what it says.

Justice Antonin Scalia, writing for the dissent, says this: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

It’s worth quoting Scalia at length, because he articulates what many observers of Burwell have long thought, that the case is ultimately about whether words have any meaning at all, and whether the constitutional principle of separation of powers still obtains:


    “You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State.’ The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B… Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”


Scalia expresses a deep frustration with the Court’s approach to the ACA as a whole, which has been one of “interpretive jiggery-pokery” that “reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.”


    “That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.”


He and his fellow dissenters (Justices Alito and Thomas) rightly believe the consequences of Burwell are far-reaching. No longer must elected representatives pass actual laws. It’s enough, now, for Congress to express a desire for a policy outcome and leave the details to an unelected bureaucracy—even when those details involve billions of dollars in taxes and spending, strict mandates and penalties, and government control over vast swaths of the economy.

Such a shift bodes ill not just for the opponents of the administrative state but also for the Court, which will henceforth be seen—if it is not already—as yet another partisan branch of government:


    “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”


The Burwell ruling is, on the surface, a victory for the Obama administration. Expect its champions in the media to revel in triumph. Yet no amount of Roberts’ mental gymnastics will prevent the long-term effects that Scalia lays bare. With Burwell, the court has woefully undermined its nature and purpose, as Alexander Hamilton said, “to have neither FORCE nor WILL but merely judgment.”