Sham Populism in an Imperial Presidency

The upcoming U.S. presidential election is a choice between two halves of the same establishment. To be sure, there are real differences in terms of specific economic policies and social issues, but these are all subordinated to a shared set of imperial goals. The unity of purpose in the establishment is best evidenced by the false populism of the Obama administration.

Although Obama masterfully portrayed himself in 2008 as an anti-establishment, non-mainstream candidate, even as someone who transcends politics, an examination of his subsequent decisions shows that he is just a standard establishment Democrat, in the mold of John Kerry. Much like Senator Kerry, he is part of the imperialist mainstream on geopolitical matters, and to the left only on so-called social issues. His economic policies are unremarkable boilerplate 1970s Keynesian statism, and seem progressive only to those who have lost memory of that era.

It was apparent that Obama was an establishment Democrat even before he took office. Shortly after being elected, he announced his intention to nominate Tim Geithner as Treasury Secretary, Robert Gates as Secretary of Defense, and Hillary Clinton as Secretary of State. Geithner, formerly head of the New York Fed, was a favorite of both parties to lead the bailout of the big banks. Gates was a holdover from the Bush administration, which supposedly had been bungling the wars in Iraq and Afghanistan. The choice of Clinton as Secretary of State effectively turned the Democratic primaries into a farce, since Obama had distinguished himself from Clinton primarily on foreign policy. Evidently, much of what was said on the campaign was pure politicking. Once elected, Obama fell in line with the establishment from which he had promised deliverance.

On the military and security front, where Obama had postured as an opponent of Bush’s militarism, he now pursued the same general policies as the Bush administration. Shortly after inauguration, Obama backed off his promise to withdraw all U.S. troops from Iraq in 16 months. Instead, he merely followed the timetable negotiated by Bush (in late 2008) to withdraw all troops by the end of 2011. In 2011, the Obama administration actually tried to keep 4000-5000 troops in Iraq as “trainers” to deter Iran beyond the end of the year, but Iraq refused and all troops were withdrawn. Yes, by the end, Obama was pushing for a longer stay in Iraq than what Bush had negotiated.

Meanwhile, Obama escalated the war in Afghanistan, and in 2011, pursued a war of choice against Libya. Unlike the war in Iraq, where the Bush administration at least presented some flimsy evidence that Iraq posed a threat to the U.S., the Obama administration attempted no such pretense. The administration simply demanded regime change as an ultimatum, without even pretending that Libya had threatened the U.S. They reversed the outcome of a civil war, under the cover of a UN-mandated humanitarian mission, following the modus operandi of Clintonian imperialism in the 1990s. Indeed, the Libya affair appeared to have been prompted by Clinton’s State Department, and long-term Clintonite Leon Panetta was soon moved from head of the CIA to Defense Secretary.

The pathetic attempts by Democrats to defend the Libya invasion only highlighted their renunciation of principle in favor of power. Yet how could it be otherwise, when the very symbol of liberal idealism proved to be just another politician?

Obama’s duplicity was further evidenced by domestic security issues. He reneged on his promise to stop holding prisoners in Guantanamo, supposedly because this was impracticable, yet now his administration is fighting to reduce prisoner-attorney contact below what was allowed by the Bush administration, and to make the issue of attorney access decided by military and intelligence agencies rather than the federal courts. This action shows that the continuation of detention at Guantanamo is not reluctant or coerced. This Obama is the real Obama, and the campaigner was just trying to win votes.

The much maligned TSA security theater implemented under the Bush administration was actually enhanced under Obama, with virtual strip searching of passengers. The same liberals who complained that the USA PATRIOT Act infringed on civil liberties now had to endure from one of their own a more egregious affront to our right against unreasonable search and seizure, even after the bogeyman of Bin Laden had been killed. Indeed, the TSA chief Joe Pistole gives the same asinine Bush-era “reasoning” that the fact we haven’t had another 9/11 is justification of current security measures. The U.S. has not become less of police state under Obama; if anything, it is more so.

Shall we look at economic matters? Apart from accepting the TARP bailout, which at least was vetted by Congress, Obama also countenanced the much more gratuitous handout by Geithner called TALF, which bypassed Congress altogether. In fact, we do not know exactly how much money Treasury has given away to various “too big to fail” entities. This in addition to the $1.2 trillion lent by the Fed in late 2008. Fed Chairman Ben Bernanke was nonetheless re-nominated by Obama. The recipients of this largesse have not been held to account, as banks still have nearly all the powers they had before the crisis, while the taxpayers have been left at a loss. Even the GM bailout, sometimes hailed as a success, left the taxpayers with stock valued less than purchase price.

Obama’s most substantive achievement, health insurance reform, also shows signs of the same institutional timidity that characterizes much of his administration. Originally, the President sought to reform healthcare, recognizing that much of the cost increase is driven by providers rather than insurers. This earned him ire for “blaming doctors,” so he subsequently restricted so-called “healthcare reform” to the issue of insurance. Later, he withdrew the so-called “public option” since it was easily vilified as “socialist,” though a more real problem was that it could not both pay for itself and cost less than private insurance. The liberal promise of something for nothing meets up with hard actuarial reality at some point. The watered down Obamacare offends no moneyed interest. Hospitals and pharmaceutical companies are delighted to have more guaranteed customers, and even insurance companies cannot be too displeased, since the same rules apply to all companies and they will not have unfair competition with a government option. If Obamacare increases the cost of insurance, this can be passed on to the consumer.

I make these observations not to persuade people to vote Republican, but rather to transcend partisan thinking. Too many worthy intellects are crippled by the belief that they must fly their flag on a certain mast only because the other side are bigger scoundrels. Worse, the partisans of one side will heap vitriol on those of the opposite allegiance, when in reality the leaders of both parties are working for the same entrenched interests. I will not hurl invective at my fellow slave because I like my master better than his. Instead, I will exhort him to stop choosing between masters.

Before judging Obama too harshly, we must recall that even the most principled person in public office will find that he must navigate through a labyrinth of vested institutional interests. Tampering with these interests can have unforeseen, possibly disastrous consequences on economics and society. While we may complain that our society is unjustly run for the interests of a few, we at the same time have a love of stability and predictability that prevents even our liberal-minded leaders from daring serious reform. How many “progressives” would be truly willing to risk their cushy lifestyle for the sake of their principles?

No Mandate, Only a Tax

Chief Justice John Roberts’ surprising decision to uphold the Affordable Care Act [PDF] is a refreshing reminder that court decisions are usually about the law, not political ideology. Journalists and the general public, lacking legal expertise, tend to interpret decisions in terms of politically favored outcomes, and impute similar motives to judges. In reality, judges tend to split along ideological lines not because they make politically informed decisions, but rather political ideology tends to align with jurisprudential approach. Still, most decisions are sincere interpretations of law according to coherent principles. Roberts’ decision is an exceptionally incisive treatment of the issues at hand.

Most strikingly, Roberts upheld the constitutionality of the Act while rejecting the application of the Commerce Clause to the so-called “individual mandate.” He plainly affirms: “The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command.” The “mandate,” then, cannot be interpreted as a mandate. It is not illegal to refuse to buy health insurance, as there are no legal penalties save the requirement to pay slightly higher taxes. By rejecting a Commerce Clause argument, Roberts cuts off the possibility of future mischief by Congress attempting to regulate all activity and inactivity. Justice Scalia, in his dissent, gives a biting criticism of the opinion of Ginsburg et al., which would effectively abolish all limits on the scope of federal power. He pointedly notes the central fallacy of her instrumentalist philosophy, supposing that the Constitution enumerates problems to be solved, rather than powers of government.

Yet Roberts separates himself from the Court’s “conservative” wing – which in this instance includes the “moderate” Justice Kennedy – by allowing that the penalty imposed on the uninsured is effectively a tax, even though the law itself calls it a “penalty.” In Section III-B of his opinion, he cites precedent showing that the label applied to a fee or penalty does not control its constitutional status as a tax (though it does control the applicability of the Anti-Injunction Act, here ruled inapplicable). Further, he upholds the principle of judicial restraint by insisting that a law should not be overturned if there can be found a reasonable construction whereby it is constitutional. The construction that the mandate is a tax, though unintended by the legislature, is reasonable, and therefore the law may be upheld. This heuristic favors the functional effect of the law, rather than legislative intent or wording. Yet this interpretation does not oppose the intent of legislators, who would surely prefer that their law be held constitutional even if not on the same grounds. Roberts cites precedent showing that it is not necessary for Congress to specify the correct power it is using, as long as it is in fact using a constitutional power.

The interpretation that the “penalty” is a tax is reasonable, according to Roberts, for several reasons. There is no indication that a person may be prosecuted for failing to purchase insurance, so such omission is not a crime, in which case the additional tax is not a fine. The “penalty” is collected through ordinary income tax filing, and those who do not have to file do not pay anything. The penalty is small (only 2.5% of adjusted taxable income), in most cases much less than the cost of buying insurance, and can never exceed the cost of insurance. In fact, it is projected that 4 million will elect to pay this penalty rather than purchase insurance. Roberts also suggests that the absence of a scienter requirement proves that this is not a penalty for unlawful behavior, but Scalia rightfully skewers this notion. Nonetheless, the rest of the Chief Justice’s arguments hold.

Once it is admitted that the mandate is a tax, one need only show that it is a constitutionally allowable tax, and Chief Justice Roberts makes relatively easy work of this task. He cites numerous precedents of taxes designed to incentivize behavior, and notes that the specification of a determinate circumstance (having taxable income, yet lacking insurance) exempts this from being a capitation tax or “direct tax” in the sense of Article 1, Sec. 2. He further observes that omitting to do something does not exempt us from taxation. The proposed tax is not so high as to become unconstitutionally punitive.

The treatment of the “mandate” as a tax is by no means academic. As the Chief Justice notes:

Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions.

With a tax, by contrast, the government has no coercive authority beyond “requiring an individual to pay money into the Federal Treasury.” There is no further penalty, and the government cannot coerce anyone to buy health insurance, any more than they can force smokers to quit.

The ruling in National Federation of Independent Business v. Sebelius places important limits on future attempts at government mandates, not only because the government is denied broad coercive power over private action or inaction, but also because any future “mandate” will be clearly perceived as a tax, and thus difficult to pass. The so-called “mandate” amounts to a regressive tax, being a flat 2.5% rate, with mandatory minimums, on taxable income. This tax will disproportionately impact the young and the middle class.

Ironically, the “individual mandate” was ruled constitutional in part because it is so weak. The cost is so low, and easily avoided, that there is reason to doubt the basic premise of Obamacare, namely that a shifting of the cost burden to the young and uninsured will make health care more affordable in general. If increased mandatory coverage is not matched by sufficient increases in enrollment, premiums will only go up, discouraging even more people from enrolling, and creating a vicious spiral. Already, in the early phases, premiums have risen more rapidly than previously, with larger co-payments. This is because shifting costs through health insurance reform does little to address the fundamental cost structure problems at the provider level. Hospitals, doctors, and pharmaceutical companies strongly support Obamacare for good reason, and it is not because they expect their revenue to decrease.

Friends with Domestic Benefits

As the propaganda machine – a union of state and infotainment media – presses forward with its campaign to compel acceptance of the equality of homosexuality with marriage, it may be worthwhile to point out how modern confusion about the nature of marriage has made this campaign possible. In my previous remarks on this issue, I noted that there is no historical or anthropological basis for the recent invention of equating same-sex unions with marriage. This is why all anthropological texts and dictionaries, until very recently, recognized that marriage was essentially a union between a man and a woman. Yet the anthropological purpose of this union has been gradually obscured over the last century and a half.

In every culture ever known, there has been some form of marital union entailing that the progeny of a given woman pertain to the man who marries her. Marriage, in its essence, is intrinsically “sexist” or sex-based, and ordered to at least the potential, if not the actuality, of having children. Since the producing and rearing of children is of interest to society, marriage has always been socially regulated. It is not a purely private act between two individuals. The interests of families, clans, and even nations could be at stake, so these played a prominent role in marital arrangements. In fact, arranged marriage was the dominant norm throughout the world until the nineteenth century.

With liberal democratic emphasis on individual freedom, there came an undermining of patriarchal family authority, and spouses came to be chosen more or less autonomously. With the disintegration of extended family authority into what were later called “nuclear” families, there was little basis for choosing a spouse other than romantic affection. Thus arose the idea that romantic love is the primary motivation for marriage.

Once we accept the idea that marriage is primarily about two people who love each other, marriage begins to lose some of its special character. There is already a term for two people who love each other: friendship. While it may not be obvious in English that friends are lovers, this is explicit in Latin (amicus) and modern Romance languages (ami, amigo, amico).

Still, modern marriage retained a unique character as long as the love between spouses was a special kind, oriented to raising children in a family. Yet the rise of contraception, sterilization, and in vitro fertilization have enabled us to separate procreation from marriage. If this is no longer essential to what we call marriage, all we are left with is friendship by another name.

If it is said that modern marriage is still distinct from friendship by virtue of carnal intimacy, I would respond that such intimacy is no basis for making marriage more exalted than friendship, much less something requiring special state sanction. In fact, the Greeks and Romans regarded friendship as a greater love than that between spouses, since it was based more on admiration of character than love of physical beauty.  Plato and Aristotle thought it shameful debauchery for friends to indulge in such intimacy, since it cheapened a noble love.

Once we fully accept the error that marriage is just “love between two people,” there is no basis for making a distinction between heterosexual and homosexual unions. To any thoughtful liberal, it will seem cruel and arbitrary to deny equal status to both kinds. The sincerity of homosexual love will persuade him that there is a real parity with marriage.

Yet the liberal who reasons thus has lost sight of an important implication: if marriage is nothing more than love, then there is no reason for the state to be involved in sanctioning such a union. The state takes the role of some gossipy busybody, who keeps track of who’s in love with whom. For what reason?

We cannot claim the state regulates marriage in the interest of limiting sexually-transmitted disease, since we freely allow extra-marital liaisons, and impose no penalty for adultery. The ease of divorce makes marriage scarcely distinguishable from more casual romantic attachments.

Perhaps the state still regulates marriage in the interests of child rearing. Yet the liberal state goes to great lengths to facilitate single-parent families, and the propaganda machine is more concerned with validating its a priori conviction in “marriage equality” than with following hard sociological data suggesting that same-sex unions have poorer outcomes for adopted children. Thus the liberal state’s interest in marriage is emphatically oriented not toward the child, but toward the desires of the spouses.

In marriage as in other matters, liberalism succeeds only to the extent that it fails. That is, marriage remains a successful institution only insofar as the liberal conception of marriage has not fully overtaken society. Most couples do care about having children, and most feel duty-bound to remain married, notwithstanding the ease of legal divorce. Most people recognize that it is highly important for children to have both male and female authority figures. We even recognize that fathers and mothers have intrinsically different roles in the family.

If the liberal conception of marriage were to be taken seriously, we should acknowledge that it is arbitrary and senseless to give special sanction to this form of love, while denying similar benefits to good friends or long-term roommates. It is not at all surprising, but eminently logical, that the dynamic of social liberalism should lead to the complete deregulation of the family. The family, being the font of patriarchal authority, communitarianism, and social inequality, represents all that is abhorred by our libertine tendencies. Yet the family is far more formidable than the liberals have reckoned. Even if it is legislated out of existence, it will persist, and will continue to be a dominating social force. This is because its structure is inscribed in human nature, making it a more venerable and lasting institution than that god of clay, the state.

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