4.6% - One Of The Reasons We Lost

Democrats are terrible at touting their achievements when they are in power. That is largely because we are never satisfied. No matter how much we achieve we always know there is much more to be done. But our inability to focus on our achievements rather than our failings hurts us when it is time to ask the voters to reelect us. And make no mistake, in 2016 we were asking the voters to reelect a Democrat for a third term.

Here are some political truisms. You can’t improve people’s lives unless you are in power. You can’t be in power unless you win elections. If you are out of power you win elections by telling people how bad things are. If you are in power you tell people how good things are, how you’ve made their lives better, and that things will be even better after you win again. Finally, if you do not tout your achievements, blow your own horn, the media will certainly not do it for you. To build a media narrative many voices must constantly repeat the same message.

The unemployment rate is at 4.6%, a nine year low. Interest rates are at historic low levels. Inflation is at historic low levels. Gas prices are at historic low levels. By most, though not all, objective measure conditions in the United States are better than they have been at any time during the last half-century. When Republicans are in power these types of facts are touted over and over again as the reason to return them to power.

That was the case with Ronald Reagan running for reelection in 1984. He won reelection by convincing people it was “Morning in America”. He was able to do so even though interest rates were five times what they are today, the unemployment rate was 3% higher than it is today, and inflation was 6% higher than it is today.

Yes, the party in power has to thread a very fine needle. That is especially so when, as in this case, you only control the Presidency, and both houses of Congress are held by the other party. But it is something that must be done and it can’t just start with the campaign a year or so before the election. It is a message that must be honed and repeated for two to three years before the election.

Contrast that with what Reagan did when he first ran against the party in power. When Ronald Reagan ran against Jimmy Carter the Republicans attacked Carter with something called the “misery index.” The misery index was computed by multiplying the unemployment rate by and the inflation rate. They sold the idea of the misery index to the news media and it was touted nonstop. And for grins they also threw in high interest rates and gas prices. After Reagan was elected he knew he had to switch gears when he ran for reelection. So for 1984 he launched his “Morning in America” campaign which, among other things, emphasized how much the misery index had dropped during his first four years in office.

Have you heard any discussion of the misery index recently, a time when it has dropped to a rate that would have been unimaginable when Reagan was President? No. Of course not. That is because Democrats could never run a “morning in America” campaign that emphasizes how much Democratic control of the White House has improved the lives of people. We can’t do it because we always want to talk about how things could be better. We want to talk about income inequality and it is at its worst in almost 100 years. But it is at its worst in part because of Republican tax policies and economic policies such as the attack on unions and the minimum wage. We want to talk about the reduction in manufacturing jobs. But we fail to address the fact that manufacturing jobs have declined even as the volume of manufacturing output is as high as it ever has been since World War II. If our rhetoric does nothing more than feed into the narrative that trade agreements are the source of all ills we will soon find ourselves out of power.

We want to talk about the non-economic issues that plague our society - racism, sexism, militarism, homophobia, police brutality, xenophobia, religious intolerance, and a host of other things that need to be addressed in our country. But often we do so without recognizing that as bad as they are they are now they are nowhere near as bad as they were in the past. Yes we want to make things better. Yes there are problems that we must continue to address. But we can only address those problems when we have the power to do so. But all too often, In talking about how things could be better, we feed into the Republican narrative that things are so bad that people need “change,” that they must elect Republicans to make their lives better.

Hillary’s candidacy was a request to the voters to essentially re-elect a Democratic president for a third term. You can point to many reasons as to why Hillary, even though she won almost 3% more of the popular vote than Trump, was unable to win the election. Yes, she made mistakes, her campaign made mistakes, decades of bashing by the Republicans had their effect, third parties drew away votes, and she fought in a primary race which was a foretelling echo of the Trump narrative of “corruption.”

But beginning two years ago I began to fear exactly what transpired. Democrats spent very little time talking about how people’s lives had improved during the Obama administration. Yes, there was some discussion, but every positive statement was amended with negative qualifiers as in “yes unemployment has gone down but it is slow and far too many people are left behind.” The reader or listener is not left with the feeling that things have gotten better but rather that progress is not being made.

And for the most part my sense was that Democrats didn’t really talk about the good but rather continued to talk about how bad things were. We talked about income inequality. We talked about corporate control over politics. We talked about all the things that we would like to change. But in doing so all we did was talk ourselves out of power. People will not re-elect you if they think you have made a hash of things. When I heard Democrats talk about the state of our nation it sounded like we had in fact made a hash of things. And remember the results of the selection would have been different if just a few tens of thousands of nonvoters voted for Hillary or switch their votes to Hillary from someone else.

Well, it’s over. Now it is time to start doing what we are good at. Now is the time to started complaining in earnest about conditions and to complain about the people in power. And as the unemployment rate, interest rate, and inflation rate begin to rise, as they will continually during the Trump administration, it will be time to resurrect the misery index.

But when we do regain the Presidency, and when we do regain the Senate and the House of Representatives, as we work for change and as we work to improve people’s lives, we must always remember that at its core our message must be positive. If we don’t remember that, we will soon find ourselves out of power again.

Comey's Indignation At His Inability To Prosecute Clinton Is Why He Interfered With The Election Twice

There is only one explanation for why FBI Director James Comey violated Department of Justice policies in releasing a letter to the Congress regarding Secretary Clinton ten days before the election. It is the same reason why he violated FBI norms by not making a private recommendation to the DOJ regarding the results of the FBI’s investigation into Clinton’s emails, after which the DOJ would make an announcement regarding its decision as to whether to prosecute. Instead he usurped the DOJ’s authority and issued a public statement regarding the results of the FBI’s investigation of Clinton. And then he went beyond merely publicizing his recommendation by passing judgment on Secretary Clinton’s actions in a moralistic and highly unprofessional manner which is totally beyond the bounds of the role of a prosecutor.

Those two actions make clear that he desperately wanted to be able to recommend the prosecution of Hillary Clinton and see her indicted and that since he was unable to do so he did the next best thing. He castigated her in both his public statement and his testimony before Congress trying to present everything she had done in its worst light and trying to minimize the fact that she wasn't prosecuted. And when that was not enough to derail her campaign he decided to smear her again in a letter that contained no actual allegations, let alone facts, but was clearly designed to imply some sort of criminal wrongdoing.

Comey has a reputation as a “Boy Scout.” He may be that when it comes to some issues but he is clearly not impartial or professional when it comes to Hillary Clinton. The facts revealed in the FBI’s investigation of Hillary Clinton's handling of emails clearly indicate there was not even the remotest chance of a prosecution and even Comey admitted as much when he said that no reasonable prosecutor familiar with the facts would bring an indictment.

But even if he had not said so the absence of evidence was clear. There were no emails in her possession that had been classified and properly marked as classified when she had them. There were a few emails regarding telephone calls she was to make to foreign leaders that someone may have intended to be classified as "confidential" but the markings were not in accordance with classification rules. There were documents in her possession that were not classified when she received or sent them but with which some federal agency subsequently thought should have been classified. Moreover, even if there were classified documents in her possession there was no evidence that any of these documents were given by Hillary Clinton to any person not authorized to receive classified documents. Finally, there was absolutely no evidence of any intent on the part of Hillary Clinton to handle classified documents in an inappropriate manner.

In passing it should be noted that it is absolutely irrelevant to this discussion whether or not Hillary conducted her business through a State Department email address or a Yahoo address or her own Clinton address. In all instances all of those servers would not have been authorized to handle classified information. Every State Department employee including Hillary Clinton, has an unclassified email address to handle unclassified material and uses a separate State Department classified system when dealing with classified emails. The inquiry that has been made regarding Hillary’s use of a so called “private server” could be made regarding every State Department employee and their use of the unclassified State Department email system. If Hillary had used a State Department email address we would be experiencing the same investigation and its parameters would be no different.

When Comey’s investigator’s told him there was no basis to recommend an indictment Comey knew he was not in a position to overrule them even though he may have tried. At that point, in the normal course of business Comey would have provided the results of the FBI’s investigation in private to the Department of Justice and the Department would have made a decision as to whether or not to prosecute. The Department of Justice would then have probably announce that decision publicly.

But since Comey wanted so desperately to bring an indictment and since he knew he couldn't, he did the best thing he could to try to derail Clinton's candidacy. He issued a public statement, that was followed by public testimony, in which he slandered Sec. Clinton and painted her in the worst light possible. Unfortunately for him, his smear job did not have the desired effect.

But he got a second bite at the apple. When he learned that there may be Clinton related emails on a computer belonging to Anthony Weiner, and it was theoretically possible that those emails may have at one time been sent or received by Hillary Clinton, and there was even the slightest of possibilities that those emails may not already have been looked at in the FBI's already exhaustive review, and it was not totally impossible that one of those emails may contain classified information, and it was possible to hypothesize that one such email may have been classified properly at the time it was in the possession of Hillary Clinton, he decided to notify the Congress that he was going to be doing something regarding the Clinton investigation. He didn't specify what that something was and clearly he couldn't because he didn't have a factual basis for anything that he was doing, but he did know that by sending that notification it could do nothing but potentially harm Sec. Clinton's candidacy.

We do not know why James Comey is so indignant at the prospect that Hillary Clinton might be elected President of the United States that he violates Justice Department and FBI policies on multiple occasions in an effort to undermine Secretary Clinton's campaign. But that indignation has driven him to use every means at his disposal to interfere with the outcome of an election. He is not fit to serve as the director of the FBI.

Is The Impossible Possible-A Coalition Government In The House?

Kevin McCarthy, the person expected to succeed John Boehner as Speaker, has pulled out of the race. This opens the possibility that something may happen that has never happened before in the House of Representatives: the election of a Speaker who achieved a majority by getting support from both parties.

No one would suggest that this would constitute a real coalition government of the type seen in parliamentary democracies. But it could be a pseudo-coalition, one in which the remaining Republican moderates in the House together with most or all of the Democrats vote together to elect a Speaker and as a condition for Democratic support, agreed to hold votes on certain critical legislative measures.

No one is saying it's likely, in fact it is highly unlikely, if for no other reason than it is never happened. Also, for Republicans to make such an arrangement, they would be conceding that they are unable to govern by themselves, which would have significant impact in future elections. It could also lead to the unraveling of the current Republican Party.

Nonetheless, it is at least conceivable if only because it may be the only thing that keeps our government from imploding.

The self-described "Freedom" caucus in the House of Representatives has said that they will not vote for any member to be Speaker unless it is one of their members. The 435 member House has 247 Republicans of which 40 are members of the Freedom Caucus. The House also has two other right wing Republican caucuses, the Tea Party Caucus and the Liberty Caucus, many of whose members overlap with the freedom Caucus. There is no firm count on how many members can be considered moderate. But these other two caucuses have not made the same demand as the Freedom Caucus.

If all of the members of the Freedom Caucus continue with the position they have announced, it will be impossible for a Republican to get the 218 votes necessary to be the next speaker unless that Republican has support from Democratic members. If no person gets 218 votes there is no speaker elected. Under House rules, the current speaker remains in office until his successor is elected. Of course, it is possible for the current speaker to resign.

In the next days things may change. The freedom Caucus and the rest of the radical Republicans may decide that they will support a moderate member. Or the moderate members may decide that they will support a member of the Freedom Caucus. But at this point neither outcome seems possible. While you don't hear much about it, the more moderate members have serious disdain for the freedom Caucus members for what they are doing the Republican Party. And though it may come as a surprise to some Democrats, there are Republican members who do believe in governing. One example is Charlie Dent R(PA) who said that Republican Rejectionist "fragged" McCarthy as they had Boehner. He went on to say

"The challenge for our conference is quite simple. That we need to assemble bipartisan coalitions to pass any important legislation around here, . . . Whoever's going to be the next speaker should not appease this group of rejectionists who have no interest in governing."

We may disagree with them on most issues but they do not have the same death wish for government that the radicals in the Republican Party have expressed.

Time will tell. But there is a lot at stake. Within the next few weeks we have to pass legislation funding the government for fiscal year 2016, which starts on October 1. In addition, soon thereafter legislation needs to be passed raising the debt ceiling. There is also a critical need to pass infrastructure legislation that will include new revenue. On immigration reform, it is too late for the House to pick up and pass the bipartisan Senate bill which passed last year since that occurred in the last Congress. However it would be possible, though it would be highly unlikely, for the House to introduce and pass the same bill that passed the Senate and send it to the Senate for final approval.

Kevin McCarthy's withdrawal from the speakership race is frightening because of the possibility of total legislative gridlock, even worse than what we have seen heretofore. But maybe, just maybe, it presents an opportunity.

Correct Outcome In Headscarf Case (EEOC v Abercrombie & Fitch) May Be Bad News For ACA Case (King V Burwell)

The Supreme Court decision in the headscarf case yesterday, EEOC v Abercrombie & Fitch, was a legally correct and very good outcome. The court held that an applicant alleging employment discrimination based on the religion need show only that his need for an accommodation was a motivating factor in the employer’s decision not to hire him, not that the employer had knowledge of his need. (As an aside it seems pretty clear that in this case the employer in fact did have knowledge of the applicants need, but that is a separate question.)

But there is language in it which may suggest a really bad outcome in the pending Affordable Care Act case, King v Burwell.

EEOC v Abercrombie & Fitch, was a straightforward case involving an interpretation of title VII of the Civil Rights Act of 1964. In an 8-1 opinion written by Justice Scalia the Court strictly interpreted the statute to hold that an employee did not have to show that an employer knew that the employee required a religious, accommodation. Rather, a case could be made simply if the employer's unwillingness to provide an accommodation for an employee's religious practice was a motivating factor in the employer's decision.

That ruling is totally consistent with the specific language and the spirit and intent of the law. However, in his opinion, Scalia inserted some language which strongly signals how he will rule in King v Burwell and may signal how other justices will rule. Scalia's opinion says,

Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desir- able result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence.

That language sounds tailor-made for the pending challenge to the ACA in King the Burwell.

To refresh people's memory, King v Burwell also involves a question of statutory interpretation. As explained in this article,

The challengers sole argument is that one section of the law that refers to subsidies says that they are available on "an Exchange established by a State" and that these were established by the Federal Government not by States. The DOJ points out the same law imposes a mandatory requirement for each to set up an exchange, but provides that for any state that elects not to establish an exchange that Federal Government must establish one in its stead, and that for all purpose of the law each of those Federally Facilitated Exchanges is "an exchange established by a State." Here is the summary from the Solicitor General's brief, which eviscerates the challengers' arguments.

The Act provides that each State “shall * * * establish an American Health Benefits Exchange.” 42 U.S.C. 18031(b)(1). But, in a provision expressly designed to respect the sovereign dignity of each State by affording “State flexibility,” 42 U.S.C. 18041, the Act provides two ways for that requirement to be satisfied. First, a State may elect to create the Exchange on its own. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to establish the “required Exchange” itself, then HHS will “establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1). Either choice satisfies Section 18031(b)(1)’s requirement that each State “shall * * * establish an [Exchange].” The text of the Act thus makes clear that an Exchange established by HHS in a State’s stead is, as a matter of law, “an Exchange established by the State.”

That interpretation harmonizes the Act’s text, structure, and purpose. Petitioners’ reading, in contrast, would transform the Act into a hash of superfluities, absurdities, and internal contradictions. It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans. It would thwart the operation of the Act’s interdependent reforms and gut the Exchanges through which those reforms are implemented. And it would destroy the Act’s model of cooperative federalism by trans- forming the Act’s promise of “State flexibility” into a threat that a State may forgo establishing an Exchange for itself only at the price of crippling its insurance market and depriving its citizens of the tax credits at the heart of the Act. The Act unambiguously forecloses that construction. At a minimum, the IRS’s interpretation is a permissible one meriting deference under Chevron.

While it is clear that these cases are entirely different that doesn't mean that those differences will affect Scalia. in the EEOC case, the court was only interpreting a single section of the law which stood by itself without reference to other sections of the law. In King v Burwell, the ACA case, there are many provisions of the law that are totally intertwined and interdependent. Moreover, the traditional rules of statutory interpretation require courts to interpret provisions in a way that is consistent with the overall intent of the law, which in the case of the ACA case requires that the law be upheld. That was not the situation in the EEOC case, which merely involved deciding the appropriate standard of proof in one section of the law.

However I continue to be optimistic about King v Burwell. I find it difficult to believe that Chief Justice Roberts will essentially invalidate the law on this second go-round, which requires him to accept a truly ludicrous theory of statutory construction when he has already cast the deciding vote to uphold the ACA earlier. Similarly I think that Anthony Kennedy will uphold the ACA because even he will ignore knowledge how truly ridiculous the plaintiffs claims are. Thus, with my rose-colored glasses firmly in place, I hope that it will be at least a 6 to 3 decision. But with this Court, anything can happen.

Did Netanyahu's Hatred Of Obama Finally Bring Senate Democrats To Their Senses

The Senate Democrats who were at the forefront of the effort that would effectively derail the Iranian nuclear negotiations have finally come to their senses. They sent a letter to the President, the text of which is below, promising not to vote on their bill until at least March 24, 2015. There is little doubt however that this face-saving date can be extended if significant progress is shown in the negotiations.

The President has been on record, most recently in the state of the Union address, opposing this sanctions bill. Even though it would not impose sanctions until June and only if negotiations failed he has made clear that passage of the legislation would effectively torpedo the ongoing negotiations.

“New sanctions passed by this Congress, at this moment in time, will all but guarantee that diplomacy fails  -- alienating America from its allies and ensuring that Iran starts up its nuclear program again, . . . . It doesn’t make sense. That is why I will veto any new sanctions bill that threatens to undo this progress.”

Of course, torpedoing the negotiations is the result that has been sought by many hawks, and is the main reason why Bibi Netanyahu is going to speak before a joint session of Congress.

It has been a mystery why so many Senate Democrats have been willing to go along with this neocon agenda. But until now they have. Yes, we all know that Senators like to preserve their prerogatives when it comes to foreign policy, which could explain some of it. We also know that there is significant skepticism as to whether or not the negotiations with the Iranians will succeed, though that same skepticism is shared by the president and all those who are negotiating this deal.

The President has appealed to these very Senators to pull back this legislation and made clear that if passed he would veto it. One has to wonder why it took till today for the Senators to finally relent. It is very possible that Netanyahu's upcoming speech may have been the trigger. There can be no doubt that Netanyahu's visit is a blatant effort by Republicans generally and the neocons in particular to embarrass the President. It is also clear that they truly do want to torpedo the negotiations. Lastly, Netanyahu appears incapable of passing up any opportunity to interfere with US domestic politics and express his dislike for our President.

Netanyahu's feelings for the President were summarized well in a recent op-ed by Richard Cohen in which he said

It would not surprise me if, at the next Republican National Convention, Benjamin Netanyahu took a seat in the delegates-from-abroad section. The Israeli leader has both allied and associated himself with congressional Republicans who differ with President Obama over whether to impose additional sanctions on Iran and who also — let’s not beat around the bush — hate his guts. Their foreign policy is actually a domestic one: to destroy the president.

Well, it is possible that his overreaching has backfired. In any event it is a good day for peace.

Dear Mr. President:

We remain hopeful that diplomacy will succeed in reversing Iran’s ability to develop a nuclear weapon capability, in accordance with the timeline that the P5+1 and Iran negotiating teams have set for themselves: March 24, 2015 for a political framework agreement and June 30, 2015 to conclude negotiations on the technical annexes of the comprehensive deal.

Congress has always been a partner in the shared goal of preventing Iran from developing a nuclear weapon capability. We remain appreciative of your leadership in seeking to protect the United States, and our allies and partners, from the threat of a nuclear Iran. For more than two decades, the executive and legislative branches of the U.S. Government have worked together in a bipartisan way to implement sanctions legislation that successfully ratcheted up pressure on Iran’s nuclear program. This pressure proved to be decisive in compelling Iranian leadership to enter the latest round of nuclear negotiations in September 2013.

We remain deeply skeptical that Iran is committed to making the concessions required to demonstrate to the world that its nuclear program is exclusively peaceful by March 24 – the deadline agreed upon for a political framework agreement. Considering Iran’s history in nuclear negotiations and after two extensions of the Joint Plan of Action, we are concerned that Iran is intentionally extending the negotiations to improve its leverage at the negotiating table.

We are Democratic supporters of the Iran Nuclear Weapon Free Act of 2015 – a bill that would impose sanctions on Iran only if Iran fails to reach a comprehensive agreement by the June 30 deadline. This bill also includes monthly waivers after June 30 to provide additional negotiating flexibility. We believe that this bill, as introduced, is reasonable and pragmatic, respects the nuclear negotiating timeline, and sends a strong signal to Iran and to the international community that endless negotiations under the interim agreement are dangerous, unacceptable, and could leave Iran with a threshold nuclear weapon capability.

In acknowledgement of your concern regarding congressional action on legislation at this moment, we will not vote for this legislation on the Senate floor before March 24. After March 24, we will only vote for this legislation on the Senate floor if Iran fails to reach agreement on a political framework that addresses all parameters of a comprehensive agreement. This deadline is the critical test of Iranian intentions. We expect that your Administration will consult closely with Members of Congress in the coming months, and look forward to working with you to achieve our shared goal of reversing Iran’s ability to develop a nuclear weapon capability.

Sincerely,

Robert Menendez
United States Senator

Charles E. Schumer
United States Senator

Richard Blumenthal
United States Senator

Gary C. Peters
United States Senator

Robert P. Casey, Jr.
United States Senator

Benjamin L. Cardin
United States Senator

Christopher A. Coons
United States Senator

Joe Manchin III
United States Senator

Joe Donnelly
United States Senator

Debbie Stabenow
United States Senator

Many Democratic Members of Congress, both Senators and Representatives, often fail to fully comprehend a basic political truth: when a Democratic President succeeds they succeed and when a Democratic President fails they fail. This political truism is something that Republicans have always understood well. I am really glad that, at least on this issue, these Democratic senators have finally come to their senses.

Keystone Is A Reality Check For Democrats Who Oppose The Senate Filibuster Rule

Yesterday, Democrats cheered when the Senate filibustered a bill that would have granted approval to construction of the Keystone pipeline. A majority of Senators voted for the bill. In fact 59 senators voted for the bill. But since the Senate has a filibuster rule that allows 41 Senators to keep a bill from coming to the floor the bill was defeated. This vote really presents Democrats with a reality check on the use of the filibuster.

For years, Democrats have decried the use of the filibuster by Republicans, and rightly so. In fact, on the same day that the Senate blocked the Keystone bill, Republicans used the filibuster to block a Democratic proposal to overhaul the NSA's program for the bulk collection of telephone data. During President Obama's years in office countless bills have been blocked by a minority of Senators and Democrats have rightly been critical. But now, the shoe is on the other foot and in the next two years we will see more and more bills proposed by Republicans that the Democrats will filibuster.

Contrary to what some assert, the filibuster was never intended to be used in this way. Yes, the Senate was designed in part to be the "cooling saucer" that would be able to check the "unrestrained passions" of the House by providing each State, no matter how large or small, an equal voice in deciding whether laws should be enacted. To give effect to that intent, Senate rules allowed for unlimited debate, even by a small minority of senators, a process referred to as the filibuster. The filibuster was established to allow a minority of senators to delay legislation. However, the filibuster was not intended to allow a minority of Senators to prohibit the consideration of legislation and thereby block it indefinitely.

Many, such as myself, would like to see the Senate rules changed to allow unlimited debate by a minority but not permit that same minority to indefinitely block the consideration of legislation. It is wrong that a minority of Senators, sometimes representing a very small minority of the United States population can keep popular legislation from moving forward. But in doing so we must also accept that there will be circumstances in which terrible legislation will be advanced by a majority of Republican Senators. We should willing to accept that fact with the knowledge that if there is a Democratic House the bill can be blocked, and if there is a Democratic President the bill can be vetoed. And if not, if all branches of the government are controlled by Republicans, we must accept the outcome.

Time To Take Action To "Save Our Healthcare"

The Supreme Court is considering a case that could take away health insurance subsidies from working people in thirty-four States. Those are the States whose health insurance exchanges were set up by the Federal government, when those States refused to do so on their own. Seven states have actively sought to have the Supreme Court take away their citizen's health insurance and 27 others have sat on the sidelines, possibly in hope that the same thing happens to their citizens. We are talking about the health insurance of over 5 million people.

The people in those states have the capacity to influence the Court and at the same time bring to light the actions of their Governors, Attorneys General and Legislatures. That influence can be achieved by:

* Informing all those who have subsidized health insurance in each of the 34 states involved that their health insurance is at risk because those subsidies could be taken away by a decision of the Supreme Court.

* Informing these people that the governor and legislature in their state has either asked the Supreme Court to take away their ability to buy health insurance or has not asked the Court to protect their health care.

* Doing this could actually influence the governors and legislators in these 34 states to either retract their support for denying insurance subsidies or cause them to oppose a Supreme Court decision that would have that effect.

* Together, pressure from these states could have a real affect on the ultimate Supreme Court decision.

* At the very least, the hard working people of these states would understand who is on their side, who is looking out for their interests, and why they should hold their elected officials accountable.

The risk to the health insurance of these people began when the Supreme Court decided to hear King v Burwell. In that case a group of ACA opponents sought to undermine the law by arguing that a wording glitch in the law meant that people buying insurance on the Federal exchange could not get any subsidies. They lost the case in the District Court and the Appeals Court and are now seeking Supreme Court review.

In a sane world every state that did not set up an exchange would have supported the King v Burwell decision and would have said that there was no need for Supreme Court review. After all, these States did not have to spend money to set up an exchange. And if there are no subsidies available to their citizens through the Federal Exchange many of those folks will not be able to afford insurance. Also, unlike the issue of Medicaid expansion, this issue does not involve the expenditure of State funds. The States do not pay a cent towards these subsidies.

But it is not a sane world. There are 34 states which refused to set up health insurance exchanges and thus required the federal government to set up exchanges for them. Those exchanges are referred to by the Department of Health and Human Services as Federally Facilitated Exchanges. They cover 5,446,178 people. Of those over 5 million people, 86% receive subsidies enabling them to buy their insurance and the average subsidy is $4700. (This is May 1, 2014 data.)

Seven of those 34 states have actively sought to have the Supreme Court take away the insurance subsidies provided to their citizens. Those states are Oklahoma Alabama Georgia Indiana Nebraska South Carolina and West Virginia. Together, there are 2,573,585 people in those seven states who are receiving health insurance through the federally facilitated exchange for each of those states and 82% of those 2 1/2 million people are receiving subsidies. That means the governors, attorneys general, and/or legislature doors of those states are asking the Supreme Court to deny basic healthcare two over 2 1/2 million residents of those states.

But the sad truth is that many people in those states may be unaware of the actions of their elected officials. Is it conceivable that these people, many of whom have health insurance now for the first time, are aware that not only is their healthcare at risk but also that their elected officials are behind the effort to take it away? No, it is not, and for a simple reason. Most people simply have too much difficulty working their daily jobs, taking care of their families, and trying to keep their financial heads above water to spend time researching the intricacies of state government or health insurance policy, let alone the actions of the Supreme Court. It is not their fault that they may be unaware of what is about to happen to them but it would be our fault if we did not do everything possible to make them aware and give them the information needed to make their voices heard.

Now is theme for the people in these 34 states to become aware of what is being done or not being done in their names. They could start with letters to the editors from hard-working people whose health care is in jeopardy. They could also begin to circulate petitions to their governors, attorneys general, and state representatives. Social media could be used to spread the word and inform everyone of what is at stake.

The reality is the people who would be affected by a negative Supreme Court decision are hard-working people who seek only a modicum of health security for themselves and the members of their families. It is not too much to ask. Hopefully, their efforts could receive the attention of parties who have the financial resources necessary to begin an outreach campaign and even provide advertising in those states.

There is still plenty of time for people to take control of their future. But if they do not, they may find out too late that the health security they always wanted has been taken from them.

* * * * * *

It is not the purpose of this article to get into the merits of the challenge to the King v Burwell decision since that challenge ignores all precedent and all rules of statutory construction. However, for those who think that there is any serious merit to the argument that the Affordable Care Act does not authorize subsidies for state exchanges that are established within a federally facilitated exchange here are two things to consider.

The challengers sole argument is that one section of the law that refers to subsidies says that they are available on "an Exchange established by a State" and that these were established by the Federal Government not by States. The DOJ points out the same law imposes a mandatory requirement for each to set up an exchange, but provides that for any state that elects not to establish an exchange that Federal Government must establish one in its stead, and that for all purpose of the law each of those Federally Facilitated Exchanges is "an exchange established by a State." Here is the summary from the Solicitor General's brief, which eviscerates the challengers' arguments.

The Act provides that each State “shall * * * establish an American Health Benefits Exchange.” 42 U.S.C. 18031(b)(1). But, in a provision expressly designed to respect the sovereign dignity of each State by affording “State flexibility,” 42 U.S.C. 18041, the Act provides two ways for that requirement to be satisfied. First, a State may elect to create the Exchange on its own. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to establish the “required Exchange” itself, then HHS will “establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1). Either choice satisfies Section 18031(b)(1)’s requirement that each State “shall * * * establish an [Exchange].” The text of the Act thus makes clear that an Exchange established by HHS in a State’s stead is, as a matter of law, “an Ex- change established by the State.”

That interpretation harmonizes the Act’s text, structure, and purpose. Petitioners’ reading, in contrast, would transform the Act into a hash of superfluities, absurdities, and internal contradictions. It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans. It would thwart the operation of the Act’s interdepend- ent reforms and gut the Exchanges through which those reforms are implemented. And it would destroy the Act’s model of cooperative federalism by trans- forming the Act’s promise of “State flexibility” into a threat that a State may forgo establishing an Ex- change for itself only at the price of crippling its insurance market and depriving its citizens of the tax credits at the heart of the Act. The Act unambiguously forecloses that construction. At a minimum, the IRS’s interpretation is a permissible one meriting deference under Chevron.

The brief goes on to explain these arguments in detail. It is well worth the reading.

Next are the words of Justice Antonin Scalia in the case upholding the ACA, National Federation of Independent Business v Sibelius. He wrote a scathing dissent to the majority opinion upholding the constitutionality of the ACA and in the course of that dissent made clear his understanding that subsidies are available to all people purchasing insurance under the ACA, whether through a state established or federally facilitated state exchange. He makes no distinction between the two, as illustrated by this excerpt discussing the Medicaid portion of the bill. The discussion is a bit convoluted because he is saying that while there is a backup plan for the Federal government to set up an exchange for a state refusing to set up an exchange or cover legal aliens, including subsidies, there is no similar backup for a state refusing to expand Medicaid. And because there is no backup the Medicaid expansion is Unconstitutional. But what is important here is how he describes the statutory structure.

If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1). Likewise, knowing that States would not necessarily provide affordable health insurance for aliens lawfully present in the United States because Medicaid does not require States to provide such coverage Congress extended the availability of the new federal insurance subsidies to all aliens. See 26 U. S. C. §36B(c)(1)(B)(ii) (excepting from the income limit individualswho are “not eligible for the medicaid program . . . by reason of [their] alien status”). Congress did not make these subsidies available for citizens with incomes below the poverty level because Congress obviously assumed that they would be covered by Medicaid. If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for.

Now, no one expects Justice Scalia to be consistent when it comes to the ACA. He has proven that his decisions are motivated purely by reactionary politics and have little to do with the law. However, it is very clear that he as well as all of the other justices who decided the original challenge to the ACA understood that subsidies were available to people buying insurance whether that insurance was purchased on an exchange established by a state or established for a state by the federal government. If they choose to do the mental gymnastics necessary to get around that simple fact, so be it. But everyone will know exactly what they are doing.

In A Sane World Oklahoma, Alabama And Five Other Red States Would Be Siding With Obama On The ACA Case

The Supreme Court has decided to hear King v Burwell, the case that rejected a challenge to the ACA by die hard ACA opponents. They had argued that a wording glitch in the law meant that people buying insurance on the Federal exchange could not get any subsidies. They lost the case and are now seeking Supreme Court review.

In a sane world every state that did not set up an exchange would have supported the Burwell decision and would have said that there was no need for Supreme Court review. After all, these States did not have to spend money to set up an exchange. And if subsidies are not available to their citizens through the Federal Exchange many of those folks will not be able to afford insurance. Also, unlike the issue of Medicaid expansion, this issue does not involve the expenditure of State funds. The States do not pay a cent towards these subsidies.

But it is not a sane world, which is why Ok, AL, Ga, IN, NE, SC and WV filed a petition together asking the Supreme Court to review the Burwell decision and strongly hinting it should be overturned. Their stated reason was that the matter needed to be settled so that they would know whether they needed to set up exchanges. But both their words and the tenor of their petition was that they hope that the Court will effectively neuter the ACA in a large part of the country. This is Obama derangement syndrome at its worst.

It is interesting that the Court agreed to take the Burwell even though there is no split among the Circuits on the issue. There had been an earlier conflicting decision in the DC Circuit but that decision was set aside when the full DC Circuit decided to rehear the case. Many observers worry that this does not bode well for the ACA. But the optimist in me hopes that Justice Roberts, who already passed on a chance to kill the ACA when he uphold the individual mandate, is not going to turn around and neuter it by striking down the subsidies. After all, the mandate made people do something but here you are just giving them money and helping them afford insurance. I also hope Kennedy upholds the subsidies as a way to finally get on the right side of the ACA.

As to the merits of the argument against subsidies in the Federal exchange, the Solicitor Generals brief eviscerates the challengers arguments.

The challengers sole argument is that one section of the law that refers to subsidies says that they are available on "an Exchange established by a State" and therefore subsidies are unavailable if the Federal Government sets up an exchange for a State. The DOJ points out that there are numerous other provisions of the law that make clear that for any state that elects not to establish an exchange that Federal Government can establish one in its stead and for all purpose of the law that too is "an exchange established by a State." Here is the summary from DOJ's brief,

The Act provides that each State “shall * * * establish an American Health Benefits Exchange.” 42 U.S.C. 18031(b)(1). But, in a provision expressly designed to respect the sovereign dignity of each State by affording “State flexibility,” 42 U.S.C. 18041, the Act provides two ways for that requirement to be satisfied. First, a State may elect to create the Exchange on its own. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to establish the “required Exchange” itself, then HHS will “establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1). Either choice satisfies Section 18031(b)(1)’s requirement that each State “shall * * * establish an [Exchange].” The text of the Act thus makes clear that an Exchange established by HHS in a State’s stead is, as a matter of law, “an Ex- change established by the State.”

That interpretation harmonizes the Act’s text, structure, and purpose. Petitioners’ reading, in contrast, would transform the Act into a hash of superfluities, absurdities, and internal contradictions. It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans. It would thwart the operation of the Act’s interdepend- ent reforms and gut the Exchanges through which those reforms are implemented. And it would destroy the Act’s model of cooperative federalism by trans- forming the Act’s promise of “State flexibility” into a threat that a State may forgo establishing an Ex- change for itself only at the price of crippling its insurance market and depriving its citizens of the tax credits at the heart of the Act. The Act unambiguously forecloses that construction. At a minimum, the IRS’s interpretation is a permissible one meriting deference under Chevron.

The brief goes on to explain these arguments in detail. It is well worth the reading.

But we are left with this. There are States that are led by people who hate the President so much that they will go to any lengths, conjure up any bogus arguments,and pursue any course to attack the President and his Presidency even if it directly harms the lives, health and financial security of their own citizens.

HHS Reports That The ACA Has Saved Consumers $9 Billion

The Department of Health and Human Services issued a report today explaining that the Affordable Care Act has saved consumers $9 Billion since it was enacted. The bulk of the savings was in reduced premiums. But it also included $330 million of refunds to consumers when their insurance companies spent more than 20% of premiums on overhead. Here is a link to the actual report.

An HHS report released today shows that last year alone, consumers nationwide saved $3.8 billion up front on their premiums as insurance companies operated more efficiently. Additionally, consumers nationwide will save $330 million in refunds, with 6.8 million consumers due to receive an average refund benefit of $80 per family. This standard and other Affordable Care Act standards contributed to consumers saving approximately $4.1 billion on premiums in 2013, for a total of $9 billion in savings since the MLR program’s inception.

These savings all come from the 80:20 medical loss ration that requires insurers to limit their overhead to 20% of premiums. The effect of this requirement has been premium reductions totaling $3.8 Billion in 2013 alone. And the insurers who did not reduce their premiums were required to issue refunds to their customers. In the first three years the refunds that have been or will be paid totaled $1.9 Billion.

Most significantly, in the individual insurance market the spending on overhead dropped from 15.3% in 2011 to 11.7% in 2013.

The report also charts how refunds are declining each year as insurers reduce their premiums, which is exactly how the law was intended to work. For instance, in the individual market refunds went from $399 Million in 2011 to $192 Million in 2012 and $128 Million in 2013. There were similar reductions in the small group and large group markets. And in the aggregate, for all markets, refunds went from $1.1 Billion in 2011 to $332 Million in 2013. But most significantly those refund reduction were a direct result of insurers reducing their premiums to the point that for 2013 the ACA caused premium reductions in all markets of $3.85 Billion


This is real progress.

Benghazi Is About The President's Legitimacy Not Just Hillary

The entire premise of the Republican Benghazi fixation is backwards.

All of the Congressional and State Department reports make clear that the Republican Benghazi story is fact free nonsense supported only by delusional drivel. This is all very well detailed in this excellent summary the GOP's disregard of facts. But more importantly, the entire political premise for their Benghazi fixation, the entire foundation upon which it is built, is laughable and completely backwards. In their view Obama is the President only because he lied his way to re-election by pulling the Benghazi wool over peoples eyes. Yes, since the election the focus has shifted to undercut Hillary Clinton if she runs in 2016, but make no mistake it started out and continues to be about the legitimacy of Obama as President of the United States.

The Republican theory is that after the Benghazi attack the President downplayed an al Qaeda/terrorist connection to the attack in order to enhance his election prospects. They say that the Benghazi attack undercut the Administration's position that we were having some success against terrorists intent on doing us harm. They knew that Obama had achieved many successes against terrorists, most notable the killing of Bin Laden. All of these successes had eluded Bush and gave rise to the popular perception that Obama was making advances against terrorism.

The Republicans thought Benghazi would reverse all of that. In their view, if Americans were told that four Americans had been killed in Benghazi by al Qaeda terrorists everything Obama had done in the prior four years would have been for naught and he would go down to stunning defeat. This one event would undo the prior four years.

Of course it wouldn't do if the attack was just part of a sequence of events triggered by a hateful video. It had to be an attack by the big AQ, which would prove that everything else that had been done in the prior four years was meaningless smoke. Benghazi today, Benghazi tomorrow, Benghazi forever.

And so, when Susan Rice read the CIA talking points that suggested this attack was motivated by the same thing that generated protests or attacks in Tunis and Cairo and elsewhere, there had to be a coverup. Even in that telling it was an odd coverup since the President had already said it was terrorism and the story details were revised a week later. It didn't matter, this was a coverup of the Achilles heel of the Obama re-election campaign.

Well, if history is a guide they have it backwards. If Obama wanted to use Benghazi to advance his election prospects he would have hyped the Al Qaeda/terrorist fear and brought back the color coded terror alerts. He would have used the playbook that Bush used for all the years after 9/11, including immediately before the election day. Bush would tout his successes but point to every terrorist attack, or threat of attack, or imagined attack to keep people afraid and manufacture the image he and only he was the one who could "keep us safe."

This cynical use of terror attack and threats real or imagined was long suspected while Bush Was President. And it was eventually acknowledged by his DHS Secretary Tom Ridge who said, as reported by Time,

Ridge says he objected to raising the security level despite the urgings of former Defense Secretary Donald H. Rumsfeld and then-Attorney General John Ashcroft, according to a publicity release from Ridge's publisher. He said the episode convinced him to follow through with his plans to leave the administration; he resigned on Nov. 30, 2004.

Similarly, as reported by John Amato in connection with the publication of Ridge's book, The Test of Our Times,

Former US homeland security chief Tom Ridge charges in a new book that top aides to then-president George W. Bush pressured him to raise the "terror alert" level to sway the November 2004 US election.

Then defense secretary Donald Rumsfeld and attorney general John Ashcroft pushed him to elevate the color-coded threat level, but Ridge refused, according to a summary from his publisher, Thomas Dunne Books.

"After that episode, I knew I had to follow through with my plans to leave the federal government for the private sector," Ridge is quoting as writing in "The Test of Our Times: America Under Siege ... And How We Can Be Safe Again."

Some of Bush's critics had repeatedly questioned whether the administration was using warnings of a possible attack to blunt the political damage from the unpopular Iraq war by shifting the debate to the broader "war on terrorism," which had wide popular appeal.

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He later publicly acknowledged that much of the information underpinning the new alert was three years old, stoking Bush critics' charges of political manipulation.

If President Obama wanted to make political hay about Benghazi he would have done exactly what Bush did, and try to scare the living bejeezus out of the American people right before the election. But that's not what he did. He and spokespersons for the Administration went out and told he truth as they knew it at the time. It was an evolving narrative as is always the case in times of conflict. First reports are rarely completely accurate and the facts become clearer after the dust settles.

The funny thing is the Republicans know that the Administration was being candid and was not hyping the incident as they know Bush would have done. They knew that his demeanor during this time was a strength, exuding a combination of confidence, compassion for the victims, and resolve. It was the calmness that the American people needed.

So they did what they always do? They attacked this strength. This is what they have done throughout his Presidency. They know he is a gifted orator so they attack his use of tele-prompters. They know he is brilliant and extraordinarily well read so they raise bogus questions about his educational background. They know he is very popular in one on one settings so they attack him for being aloof.

They did and are continuing to do the same with Benghazi. They know he was truthful and the tone and tenor were spot on so they attach him for not hyping an al Qaeda connection and cynically argue that if he had done so his re-election would have been doomed, when, if anything, it would have been further bolstered.

Well, the American people didn't fall for that in 2012 and four years of age aren't going to make it a more successful line of attack in 2014 or against Hillary in 2016.

But it isn't just about 2014 or Hillary. It started out as an attack on the President's legitimacy and continues to this day. In Republican minds the 2012 election had nothing to do with the forty-seven percent. It hinged on only one issue - Benghazi. If the Benghazi truth had been told he would have lost in a landslide.

In the Republican mind President Obama's first term was illegitimate because he was a Kenyan (not to mention anti-colonialist socialist) who wasn't eligible to hold office. And his second term is doubly illegitimate because he lied his way to re-election by pulling the Benghazi wool over peoples eyes.

Debt Limit Extraordinary Measures Should Be Repealed.

The House is proposing to eliminate the "extraordinary measures" that delay hitting the debt ceiling. Some people think this is a bad idea or a poison pill but it is not. These special procedures started out as a method to give the Treasury flexibility but have turned into something completely different. They have essentially allowed the Republicans to force a delay in when we hit the debt limit by essentially requiring the Treasury to take money from the civil service retirement fund the federal employees 401(k) plan and other sources. In doing so all they have done is delay the inevitable. Moreover, they have added uncertainty to the process, something that increases the danger that the debt limit will be crossed.

Here is the type of announcement the Treasury uses to invoke the special measures:

Today, the United States has reached the statutory debt limit. Secretary Geithner sent the following letter to Congress this morning alerting them to actions that have be taken to create additional headroom under the debt limit so that Treasury can continue funding obligations made by Congresses past and present. The Secretary declared a "debt issuance suspension period" for the Civil Service Retirement and Disability Fund, permitting Treasury to redeem a portion of existing Treasury securities held by that fund as investments and suspend issuance of new Treasury securities to that fund as investments. He also suspended the daily reinvestment of Treasury securities held as investments by the Government Securities Investment Fund of the Federal Employees’ Retirement System Thrift Savings Plan. For more information on these measures, please read this FAQ.

These are but two of the several measures the Treasury uses to delay the day of reckoning. Treasury takes civil-service retirement contributions and instead of investing them in securities, uses them to pay other obligations. It also takes money contributed by federal employees to their 401(k) and instead of investing it, uses that money to pay off other obligations.

It should be noted that this is not what happens with Social Security and other trust funds. This is something totally different and pernicious and it only affects Federal employee money and some other things like the issuance of State and Local Government Series Treasury Securities.

Under normal circumstances all trust fund accounts, whether Social Security, Medicare, Highway Trust Fund, Civil Service Retirement Fund, et al., are invested in special issue Treasury instruments and are part of the national debt. They are under the heading of Debt Not Held By The Public.

But there is a law that applies to Civil Service Retirement Trust funds that allows Treasury to cancel the instruments in the CSRS fund when it reaches the debt ceiling. Once those instruments are cancelled, the national debt is reduced by that amount and the money can be spent for expenses, like Boehner's salary. The law requires the money to eventually be paid back, but for now the instruments are gone. This debt cancellation cannot be done with the Social Security or most other trust funds.

The Thrift Savings Plan (TSP) funds can also be raided under these procedures. The TSP is a 401k administered by a separate board. Federal employees have many choices of where to invest their funds including, stocks, bonds, real estate and Government Securities. This law applies only to money in the G Fund and it allows Treasury to cancel those government securities and spend the money. Also new money designated for the G Fund can be directly spent. Again, the law says it must be redeposited later, but right now the debt is cancelled, and that is why it doesn't it isn't part of the national debt.

Congress should eliminate the authority for these special measures. What started out as something to be used rarely and only in extraordinary circumstances has now been used every time we reach the debt limit and has merely delayed when the final day of reckoning arrives. These extraordinary measures hurt the process by adding uncertainty and confusion and creating the impression the Treasury has some magical tricks that can prevent debt limit catastrophe. And once again it is federal employees who are the victims of Congress' incompetence.

The President Restates That There Are No 14th Amendment Tricks Around The Debt Ceiling

At todays press conference the President restated what he said in January that there are no tricks around the debt ceiling, such as the 14th Amendment, gigantic coins or script.

And I know there's been some discussion, for example, about my powers under the 14th Amendment to go ahead and ignore the debt ceiling law. Setting aside the legal analysis, what matters is -- is that if you start having a situation in which there -- there's legal controversy about the U.S. Treasury's authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn't be sure. It'd be tied up in litigation for a long time. That's going to make people nervous.

So -- so a lot of the strategies that people have talked about -- well, the president can roll out a big coin and -- or, you know, he can -- he can resort to some other constitutional measure -- what people ignore is that ultimately what matters is, what do the people who are buying Treasury bills think? And again, I'll -- I'll just boil it down in very personal terms.


If you're buying a house, and you're not sure whether the seller has title to the house, you're going to be pretty nervous about buying it. And at minimum, you'd want a much cheaper price to buy that house because you wouldn't be sure whether or not you're going to own it at the end. Most of us would just walk away because no matter how much we like the house, we'd say to ourselves the last thing I want is to find out after I've bought it that I don't actually own it.

Well, the same thing is true if I'm buying Treasury bills from the U.S. government, and here I am sitting here -- you know, what if there's a Supreme Court case deciding that these aren't valid, that these aren't, you know, valid legal instruments obligating the U.S. government to pay me? I'm going to be stressed, which means I may not purchase. And if I do purchase them, I'm going to ask for a big premium.

So there are no magic bullets here. There's one simple way of doing it, and that is Congress going in and voting. And the fact that right now there are votes, I believe, to go ahead and take this drama off the table should at least be tested. Speaker Boehner keeps on saying he doesn't have the votes for it, and what I've said is, put it on the floor. See what happens. And at minimum, let every member of Congress be on record. Let them -- let them vote to keep the government open or not, and they can determine where they stand and defend that vote to their constituencies. And let them vote on whether or not America should pay its bills or not. And if, in fact, some of these folks really believe that it's not that big of a deal, they can vote no.


And that'll be useful information to -- for voters to have. And if it fails and we do end up defaulting, I think voters should know exactly who voted not to pay our bills, so that they can be responsible for the consequences that come with it.

These positions are not new. In a January 14, 2013 press conference he said "There are no magic tricks here, there are no loopholes." This reiterated what the President, through the Treasury, stated a few days earlier that he will not use the platinum coin option. Both statements echoed his decision in 2011 that he would not use the 14th Amendment option.

All of all these issues are discussed in this post and here is a summary.

It has been argued the President could use the authority to mint a platinum coin in a trillion dollar denomination and use those funds to continue to pay the Treasury's bills. The second alternative was to use his authority to issue scrip that would be used to pay the debts of United States until the debt limit that could be raised and real dollars borrowed. The third option was for the President to simply say that he has the authority under the 14th Amendment, or some other constitution provision, to issue debt notwithstanding the fact that the issuance would exceed the amount of the debt limit law.

The President will not choose the first two options because, whether or not one thinks he has the legal authority to issue a platinum coin or issue scrip, the President knows that both internationally and domestically taking either of those actions would be viewed as a gimmick, a magic trick. They would at the least raise significant legal issues that would call into question the validity of any debt that is issued. Also, either of those actions would merely be kicking the can down the road. They would be giving the Congress an excuse to not raise the debt limit because the President would have continued to keep the country operating and the Republicans would have been let lose to fight the President in the courts and through impeachment hearings.

The third option was for the President to assert that the 14th Amendment gives him the authority, if not a requirement, to avoid default notwithstanding the debt limit. But this assertion would not only raise the legal and practical issues of the first two, but also create a significant Constitutional crisis, a crisis between the President and the Congress as well as between the President and the Supreme Court.

Asserting this position is not the same as a conflict between two statutes, where the President interprets one statute as overriding another. Many people have suggested this possibility by arguing that the Congress has passed Appropriations Acts and that they require the President to spend the money appropriated, a requirement which conflicts with the debt limit law. That argument has little merit. There is no statute that says money that is appropriated must be spent if there is no money available. In fact, if you look at every Appropriations Act the lead off language is ,

"That the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, . . . . . "

"Any money in the Treasury." Very soon if Treasury cannot borrow money and put it in the Treasury, there will only be two dollars in the Treasury for every three dollars of bills coming due. Appropriations acts simply do not authorize let alone require the expenditure of funds that the Treasury does not have. There is no conflict between Appropriations Laws and the Debt Limit law. One tells Treasury how to spend money in the Treasury, the other limits how much can be borrowed to put money in the Treasury. This question is totally different than the question of whether the President can refuse to spend appropriated funds when such funds are available, which the Supreme Court has ruled to be unconstitutional.

Simply put we are talking about the President asserting the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President. Except for Nixon no President has done that, in this way, since Lincoln suspended the Habeas Corpus provisions of the Judiciary Act of 1789. The action was challenged by a prisoner but Lincoln ignored a court decision which ruled the action Unconstitutional. Eventually, however, Congress essentially ratified his action.

The President would be effectively declaring the debt limit built to be unconstitutional because it conflicted with his 14th amendment powers. He would be declaring unconstitutional a law that was passed many decades ago and has been amended scores of times since then. A law which during all that time no President has ever declared to be unconstitutional or in any way inconsistent with the President's powers under the 14th amendment.

The President has made clear that he will not take these actions. He knows they do not solve the underlying problem and run the risk of chaos over an extended period of time in the international financial markets and damage to the standing of the United States that may take a long time to fix. And it goes without saying that the political chaos this would create domestically would ruin any chance of his being able to achieve anything in his second term.

President Obama May Be About To Achieve His Syria/Chemical Weapons Objectives

Congress is considering a resolution that would authorize the President to use force against Syria for a limited period of time and restrict the force that could be used by excluding ground troops. Recent developments suggest that the resolution will soon be amended. Secretary Kerry stated that one way for the Assad regime to avoid military strikes was to relinquish its chemical weapons stockpile. Apparently Kerry has suggested this in the past to his Russian counterpart, Lavrov, but made little progress in getting Russian agreement, something that is critical to getting Syria to act. Now the Russians are jumping on the idea and Lavrov offered a proposal for Syria's chemical weapons to be turned over to an international body. The Assad regime has given its initial support to the Russian initiative.

It remains to be seen whether either the Russians or Syria are serious about this but the concept is a useful one that could be included in the resolution for the use of military force. For that reason look for the resolution currently under consideration to be be amended to include some form of trigger that would allow Syria to avoid military action by relinquishing its chemical weapons stockpile to international control. How that is worded and what form the trigger will take is yet to be seen. But there is a reasonable possibility that the resolution will take this form in the coming days.

From the beginning of the Syria conflict President Obama has opposed United States intervention. Initially he opposed giving even non-lethal aid to the Syrian rebels and was only committed to aiding the countries that were taking in Syrian refugees. As the pressure from war hawks mounted and as the conflict became more intense he decided to start giving non-lethal aid to the rebels. Then, after the initial reports of possible gas attacks,but which were convincing not sourced well enough to justify a firm response, the President warned Assad against further use and agreed to provide lethal aid to the Syrian rebels. Finally, after the August 21st chemical weapons attacks in Damascus, attacks which the intelligence community gave its highest rating of probability as having been conducted by the Syrian government, the President decided that the only way to deter further use was to launch a limited military strike.

But the goal of the military strike has always been clear - to deter the Assad regime from using chemical weapons, to degrade their ability to use such weapons and to reinforce the international norm against the use of such weapons. While are the goals it was also recognized that a side affect of the military attacks would be to degrade Syria's overall military capabilities and by extension, benefit the Syrian rebels.

The President's attempts to get Congress to pass a resolution authorizing the limited use of force for this limited purpose have been met with considerable opposition. Some of the opposition has been based on totally valid reasons and some has not.

Valid reasons for opposing the resolution include the belief that it will not achieve its objective; general opposition to the use of force under any circumstances; overall war weariness; and the belief that chemical weapons do not deserve special treatment. This reasoning holds that if we were unwilling to act when 100,000 people were killed using bullets and bombs, the death of an additional thousand people through chemical weapons should not change that equation.

Invalid reasons include the position that anything this President proposes must be opposed because of who he is, or that since the resolution does not provide for full scale war against Syria it is insufficient and therefore limited strikes will not be supported.

But with this new development the level and nature of the opposition to a Syria resolution may now change. There will of course be some persons who will continue to oppose any resolution, including one that enables Assad to avoid military action by ceding control over his chemical weapons. But for others it may well make a difference. Those are the people who, notwithstanding their war weariness and their determination to avoid our getting directly involved in the Syrian conflict, believe that chemical weapons truly are different. They believe that it is critical that the United States and the international community do more than pay lip service to the international norm against their use.

In connection with this amended Congressional resolution, there is a likelihood that we will see an effort to pass resolution out of the United Nations Security Council that condemns the use of chemical weapons and establishes a framework for Assad's weapons to be turned over to international control. The United States may also try to see if it can convince the Russians to include a specific condemnation of Assad and the type of trigger that would authorize the use of military force in the event Bashir Assad does not comply. It will be interesting to see if the Russians continue to object to this last element. It is also unknown how the Chinese will respond.

What is arguably most important about this new development is that it will focus all this discussion on chemical weapons and enable the President to achieve his twin objectives of deterring the further use of chemical weapons in Syria and reinforcing the international norm against such weapons.

Assad Gassed His People, Even Opponents Of Syria Resolution Agree. Question Is What To Do

The Senators and Representatives who have seen the classified materials agree that Assad gassed his people. That includes those who are strongly against intervention. The debate is over what if anything should be done.

Here are some samples of statements by opponents of intervention on the question of whether Assad perpetrated the Damascus attacks:

Senator Tom Udall (D-NM)

I want to repeat that I am horrified by what Bashar al-Assad has done to his own people. He has committed a heinous act and a violation of the Geneva Convention no doubt about it. However, I still believe this proposal is the wrong course of action for the United States and its military.

I am voting no because this policy moves the United States toward greater American conflict and increasing regional conflict.

Senator Chris Murphy (D-CT)

Bashar al-Assad’s use of chemical weapons against the people of Syria is a human rights atrocity and a blatant violation of international law. It’s impossible to see the horrific images of death and suffering in Syria and not feel compelled to act in some way. But there is not always an American solution to every international crisis. For me, today's vote was a close call, but in the end, I voted no because I believe that the downside risks of military action, both for U.S. interests and the Syrian people, outweigh the potential benefits.

Senator John Barrasso (R-WY)

“Over the last two years, the Assad regime has committed terrible atrocities against thousands of innocent men, women and children in Syria. I join the rest of America in strongly condemning these awful acts of violence.

“This past week, I’ve participated in both open and closed hearings with the Administration about the President’s call for military strikes in Syria. Like most folks back home, I am concerned about the Administration’s willingness to commit to military action without providing an ultimate objective and an overall strategic plan in Syria.

Rep. Jeff Duncan (R-SC)

“I don’t see where any imminent threat to the United States is evident,” he said. “I do believe that chemical weapons were probably used in Syria but I don’t understand and don’t see a way that we involve the United States in this. So I plan on voting no.”

Michael McCall (R-TX)

I think what gives Congress great pause, and the American people great pause, is there's no good outcome here. They don't see a good side versus a bad side. They see Assad as a bad actor who's used chemical weapons. There's no question about that. But then who is the other side? Who are the rebel forces?

Ted Yoho (R-FL)

The use of chemical weapons is deplorable and should be decried as such by the rest of the world, yet for some reason some people think it is the United States alone who must enforce the world’s outrage. The philosophy that the United States should be the world’s police is one that will lead to our own demise.”

The members of the House and Senate of both parties who have seen the materials agree on two things - there was a gas attack on Damascus and Assad's troops did it. They disagree on the response.

This is not Bush and Iraq, and bogus intelligence to support a war that was unjustified even if the intelligence had been accurate. This is a question of Assad using gas increasingly over several months until the last usage was so egregious that some response is warranted.

When earlier uses were suspected but not conclusively confirmed, Assad was warned directly, and through intermediaries like Russia, that he needed to cease. Instead he escalated. The only debate now is what, if anything, that has not already been tried should be done.

Congressional Letter On Syria AUMF

The following was sent to my Members of Congress, Senator Bennet, Senator Udall and Representative Tipton.

"I urge you to Vote for the Syria Joint Resolution to "Authorize The Limited And Tailored Use Of The United States Armed Forces Against Syria." It is absolutely essential that the United States take action to respond to the use of chemical weapons by Syria. The last time we faced this issue in the Iran-Iraq war we did nothing when Iraq killed tens of thousands of Iranians with chemicals weapons.

To put my position in perspective I view this as analogous to the naked aggression of Iraq against Kuwait, which is why I supported the Gulf War resolution. Similarly, I supported the Afghan resolution because it was a response to aggression. On the other hand I opposed the Iraq AUMF resolution because it was not in response to anything and was based on ridiculous assertions of a future threat to the United States.

I do not believe the United States should be actively engaged in the Syrian Civil War. But I also believe that unless we respond to this use of chemical weapons there will be two consequences. First, Syria will be emboldened and will continue to use chemicals weapons realizing that there will be no consequences. Second, for all intents and purposes there will be no enforceable international norms on any issue moving forward. Rights without remedies are not rights. And prohibitions without penalties are not prohibitions. It is time to make clear that the rules against indecency and inhumanity will be enforced."

Why Did Assad Use Chemicals? We Finally Have A Plausible Answer

On August 30 I heard an interview on NPR with retired General Jack Keane that had the effect of prospectively fleshing out an important part of Secretary Kerry's presentation that was made a few hours later. I did not write about Keane's NPR interview at first because, although thought provoking, I had never heard it before. While Keane often has good inside information I'm a real skeptic when it comes to his policy judgements and recommendations. But confirmation came for me in Secretary Kerry's speech. With that I think I'm officially off the fence.

In his presentation on Syria Kerry stated,

We know that the regime was specifically determined to rid the Damascus suburbs of the opposition, and it was frustrated that it hadn’t succeeded in doing so.

But the details of what Kerry was saying were not included in his speech. As it turns out that detail had been provided earlier in the morning by Gen. Keane in his NPR interview.

Keane said that Assad's regime has been trying to clear the rebels from this Damascus suburb for some time without success using aircraft. Then a few weeks ago the rebels received a shipment of arms from Saudi Arabia that included shoulder fired antiaircraft weapons. Using those weapons the rebels shot down two of Assad's aircraft. Since then, no aircraft have flown. Instead, Assad tried continual barrages of conventional artillery but had no luck in dislodging the rebels. That is why he decided to use chemical weapons.

I have thought that the use of chemical weapons would be suicidal for Assad and that most regimes are not suicidal. That is why I was highly skeptical that Assad had use these weapons, believing it equally likely that this was a disinformation campaign. This had the feeling of a Syrian version of the Iraq curveball exercise , where the anti-Hussein factions used every conceivable form of deceit to dupe us into invading. However, it is not suicidal to use chemical weapons when they are your only choice in defeating an enemy. That is why Saddam Hussein use them when he was losing the war against Iran and apparently that is why Assad is using them now.

As a general matter I agree that "dead is dead." Generally it makes no difference what the means of your demise is. But chemical weapons are different in the sense that their affects are usually indiscriminate. And in this case they are being used deliberately against civilian targets. Additionally, the method of death can be important if it is one that causes long periods of extended suffering. That is what chemical weapons do. They often don't kill but leave the victims maimed. In the case of blister agents, they also leave the victims horribly disfigured and in terrible agony.

Since Assad has apparently decided that he can use chemical weapons I am now convinced it is incumbent upon someone, anyone, and if no one else, the United States, to tell him no. You are violating international norms and you will be held to account. You must understand that he cannot adopt a strategy of using chemical weapons against his people.

I believe the President makes this decision very reluctantly. I suspect that he may see it as the moral equivalent of Rwanda or maybe trying to undue the precedent of the US ignoring Iraq's use of chemical weapons in the Iran/Iraq War. But while he makes this decision reluctantly, I'm certain he feels he has no other choice.

Don't Further Privatize National Security

There are proposals in Congress that would prohibit NSA from collecting communications metadata. If enacted this would have the effect of further privatizing intelligence gathering and national security. This is a bad idea. The intelligence community is already using far too many contractors, such as Booz Allen, to conduct what are essentially government functions. The last thing we need is more privatization of the government.

The Senate held an informative hearing on the NSA metadata collection program this morning. The purpose was to identify problems in the program and possible legislative changes. This article addresses one of those issues - Who should maintain the data.

By way of background here are links to the three documents that were declassified today regarding this program. 1) 2009 Report to Congress 2) FISA Court Primary Order 3) 2011 Report To Congress

Here's the issue. If the intelligence agencies have identified a phone number that they have a reasonable, articulable suspicion belongs to a person who has engaged in terrorism or is otherwise an enemy of the United States they investigate further. Most people believe that the Government should do something with that information, not just sit on it. The logical thing for them to do is see whether that phone number has contacted any phone numbers in the United States or any other country. At this point they do not know if there have been any contacts within the United States let alone who those contacts may be or where they may be located. Therefore they need to do as broad a search as possible to determine whether that phone number shows up in the call data of phone calls in the United States. To do that, intelligence agencies must have access to phone numbers in the United States that could have been contacted by that foreign number.

There are three ways to go about this. The United States can collect the phone call data from all of the phone companies and combine it in a way that enables the Agency to quickly do a search on the entire database. Keep in mind that at this point the only thing the government is trying to do is identify domestic phone numbers that communicated with the foreign phone number and, potentially, numbers that those people may be calling. That is what is currently happening.

There are two other ways to do this. Rather than collecting the data, the United States could require that the phone companies maintain the databases themselves. Then, when the agency wishes to see if a phone number that is linked to a terrorist has been in contact with any phone numbers in the United States it could send its agents to each of the phone companies and do separate searches of the individual databases to see if there are any contacts. Alternatively the United States could request that the phone company employees do the search and provide the information to the government.

For the system to work if the Government doesn't maintain the data, laws would have to be enacted which require the phone companies to keep the records for some period of time beyond what their pure business purpose is. The government generally likes to keep these records for up to five years whereas many phone companies may only keep them for a year or less. There will also be some other requirements. The phone companies will have to comply with government requirements for security. The data will have to be maintained in a way that is searchable for intelligence purposes, separate from the companies business purposes. In addition the phone companies will have to employ persons who have the proper security clearances and laws will have to be enacted similar to those applicable to government employees, which criminalize the unauthorized use of those phone data logs. And since all of these requirements will cost money the Government will have to pay the companies for carrying out these activities.

Also, the United States is going to have to feel good about having to ask China Mobile, Verizon, AT&T, and all of the other phone companies, whether domestic or foreign, that do telecon business in the United States, to carry out our foreign intelligence activities, essentially handing over an essential government function to private companies including foreign companies.

Most people, including me, have concerns about the way the current NSA program is being conducted. There are real concerns about transparency, monitoring and controls. But we need to think carefully before embracing alternatives. Turning each American phone companies let alone foreign companies into privatized NSAs is not a good idea. We need to address the concerns about transparency by addressing those concerns directly, not by privatizing the activity. We need to address the concerns about the FISA court directly, not by thinking they will go away if the databases are maintained and queried by private companies as opposed to the NSA.

One thing is certain. The American people will never accept a situation in which the US government obtains intelligence about potential terrorism in the United States and does nothing about it. It is hard to imagine many Americans, let alone Members of Congress, who would advocate ignoring actionable intelligence. Here is an excerpt from the 2011 memorandum that explains why:

Prior to the attacks of 9/11, the NSA intercepted and transcribed seven calls from hijacker Khalid al-Mihdhar to a facility associated with an al Qa'ida safehouse in Yemen. However, NSA's access point overseas did not provide the technical data indicating the location from where al-Mihdhar was calling. Lacking the originating phone number, NSA concluded that al-Mihdhar was overseas. In fact, al-Mihdhar was calling from San Diego. California. According to the 9/11 Commission Report (pages 269-272):

"Investigations or interrogation of them [Khalid al-Mihdhar, etc], and investigation of their travel andfinancial activities could have yielded evidence of connections to other participants in the 9/1] plot. The simple fact of their detention could have derailed the plan. In any case, the opportunity did not arise."

Today, under FISA Court authorization pursuant to the "business records" authority of the FISA (commonly referred to as "Section 215"), the govemment has developed a program to close the gap that allowed al-Mihdhar to plot undetected within the United States.

When overseas contact information is developed the first action is always to see whether a phone number of a suspected terrorist has been in contact with phone numbers in the United States or elsewhere in the world. That will not stop. The issue before the Congress now is to ensure that it is done in the most effective and efficient manner, that is as protective as possible of the privacy rights of Americans.


There are many good ideas that are being discussed in connection with the administration of the NSA's phone data collection activities. Clearly the issue of transparency is one that needs to be worked on. Also, there may be ways to make people have more confidence in the activities of the FISA court. But turning our private phone companies into arms of the federal government makes no sense at all. It is not only a logistic and operational nightmare but it furthers the process of turning government activities into corporate activities. We have been going down this road for many decades whether in the area of prisons, defense contracting, and virtually anything else you can name. In virtually every instance the result is higher cost, lower quality, and less accountability.

For people who are concerned about accountability of the government, imagine what happens if Verizon and China Mobile are storing the data and conducting searches. One can guess that most people will come to the conclusion that this is not the way we want to go.