Monthly Archives: April 2012

Why the United States Should Impose Sanctions on Bahrain

Yesterday’s Grand Prix in Bahrain marked a new low for Formula One racing.  I cannot understand why popular brands such as Red Bull, which normally go to great lengths to protect their reputations, voluntarily associate themselves with a government that practices widespread discrimination against the majority of their people.  The race did provide the opposition with a public stage on which to demonstrate that little has improved since the government crackdown of last year.  It also offered an unintended contrast to today’s decision by President Obama’s to impose additional sanctions on Syria and Iran.  The contrast is not flattering to the Administration.

The Arab Spring needs to be seen as an international phenomenon.  From the beginning two competing narratives have competed to explain it.  The first is that, in country after country, ordinary citizens have gradually risen up to rebel against corrupt and stagnant regimes and to demand more freedom for themselves.  In doing so they have seldom shared a united vision of what type of government should replace the one they have.  That has been a problem for another day.  Displacing decades of oppression has been a hard enough job.  Although the national movements have been largely separate, they draw inspiration and momentum from each other.  Victories in one country offer hope to demonstrators elsewhere that their sacrifices will be worthwhile.  Although this narrative has threatened some traditional U.S. allies, it is strongly in our favor.  It affirms our values and promises to tilt the balance of power in the region strongly in our favor.  It offers the chance to put countries like Tunisia and Egypt  on the slow path toward higher livings standards and a more plural society.  Just as important, the momentum has placed enormous strain on the Syrian regime.  If Syria falls, the Iranian regime, together with its allies Hezbollah and Hamas, will come under intense pressure.

The competing narrative is that this is all one big sectarian conflict that has nothing to do with democracy and everything to do with whether Shiites or Sunnis rule each country.   Not surprisingly, threatened regimes have been the largest advocates of this theory.   So far there has been little evidence to back it.   Protestors have been largely peaceful, nonsectarian, and focused mainly on removing the ancient regime rather than replacing it with anything in particular.  The greatest danger to the Middle East is that it may slowly becoming true.  Unfortunately, the Obama Administration’s tendency to treat each country in isolation and to react to events rather than follow a proactive strategy increases this risk.  That is why U.S. strategy toward Bahrain is so important.

The gradual militarization of the conflict in Syria threatens to eclipse the peaceful cries for universal rights and draw in combatants on both sides who are more interested in the spoils of power and the settling of scores.  These parties have a strong interest in seeing the war in sectarian terms.   It may be too late for the U.S. to influence this trend except on the margins.  However, by pressing hard on Bahrain  as it is on Syria to make meaningful democratic reforms in  the next six months, the U.S. could give an important boost to the democratic narrative.  In Bahrain a Sunni minority is using torture and massive force to oppress a Shiite majority.  The Obama Administration mildly condemns this while imposing sanctions on Syria for similar behavior.  Using our full influence, including the presence of the Fifth Fleet, would send a clear signal to the Middle East that the United States is willing to support any population fighting for its freedom.  Progress in Bahrain would hearten Sunni protestors in Syria as well as Shiite protestors in Iran.

On a broader scale it would help if the Administration announced a series of principles that would guide its policy in the region: 1) the U.S. will offer moral and logistical support to any people that peacefully protests for the extension of basic human rights; 2) we will apply gradual but escalating sanctions to any regime that consistently refuses to extend these rights to its people; 3) working with other established democracies, we will respond to any requests for technical assistance on building the civil institutions that are critical to democratic societies; and 4) if a population democratically elects a government that pursues policies that are fundamentally hostile to the United States (as arguably has happened in Venezuela, Gaza, and Iran), we will defend our interests appropriately.  These principles, if strongly pursued on a consistent basis offer the best hope of sustaining the democratic narrative and maintaining its momentum against all oppressive regimes in the Middle East.

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A Look at the Unemployment Numbers

One of the key factors in this year’s presidential election will be the state of the economy.  Everyone knows it was bad when Obama took office.   The question is whether he put into place the policies needed to help it recover.  If the economy continues to lag through November, Obama’s chances for reelection look dim.  If, however, voters believe that an economic recovery is underway they may decide to give him four more years.  That is why economic statistics such as GDP growth and the unemployment rate are so important.  Unemployment is a lagging indicator.  We would normally expect to see it fall well after economic growth had picked up.  The significant decline in the unemployment rate over the past six months is therefore surprising.  Does it signal that the economy is better off than we think?

Today’s jobs numbers were not good.  On the surface 120,000 new jobs were created and the unemployment rate dropped to 8.2 percent.  But a deeper look at the numbers shows significant problems.  Although 120,000 new jobs is very good for an economy running at full employment its far below what we would hope for in a recovery, especially after such a steep recession.

But the government actually releases two surveys, one of households and one of establishments.  The household report shows that the number of employed workers fell by 31,000.  That points to a deeper mystery.  According to the household survey, the civilian noninstitutional population (those 16 years or older and not in an institution or on active duty) grew by 169,000 in March.  Despite the loss of jobs and the growing number of workers, the number of unemployed persons fell by 133,000.  If none of these people got jobs, where did they go?  They apparently left the workforce.  The number of people over 16 not in the work force rose by 333,000 last month.  As a result the labor participation rate fell slightly to 63.8.  Yet the number of these people who currently want a job actually fell by 79,000.  So while the establishment data point to a mediocre rise in jobs, the household data indicate that we lost jobs and that people may be leaving the workforce for an indefinite period.  Some of these may never return.  Others may be in school or taking time off.  But it is not a good trend.

There is one very important caveat.  The numbers above are adjusted for seasonal variations.  If we use unadjusted numbers the number of employed workers actually rose by 728,000 the unemployed fell by 526,000 and those not in the labor force fell by 34,000.  So the true picture depends a lot on the accuracy of the government’s seasonal adjustments.

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Thoughts on Obama and the Supreme Court

It is perhaps understandable that President Obama is a little testy as he waits for the Supreme Court to decide on the constitutionality of the Patient Protection and Affordable Care Act.  There is a good reason it is called Obamacare: the president invested enormous amounts of time and political capital into the legislation during his first 14 months in office.  This at a time when many Americans thought the first priority should be dealing with the financial crisis and loss of jobs.

So Obama perhaps had not fully thought through his comments last Monday of this week when he strongly criticized the Supreme Court’s right to declare his law unconstitutional.  The comments came at the end of an otherwise pretty reasonable answer to a question about the pending court decision at a joint press conference with the leaders of Canada and Mexico.  Obama probably was hoping to talk about other issues.  The fact that he backed away from those comments the next day tempts me to give him a pass.  However, what presidents say matters and Obama did after all teach Constitutional Law earlier in his career.  Moreover, if the statements presage a strategy of attacking the Court’s legitimacy should it strike down part or all of the health care law, it is good to deal with the issues now.

Here is what Obama said at the end of his answer to a question about the Court’s possible decision against the law:

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.  So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this.  And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.  And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.

The next day at an Associated Press lunch he somewhat qualified these remarks:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.  Right?  So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this.

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.  I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.  As a consequence, we’re not spending a whole bunch of time planning for contingencies.

So what should we make of this?  That Obama should not even think about going down this road.

First, Obama is wrong in asserting that the mandate is necessary to ensure that people with preexisting care get coverage.  There are at least two other ways; a single payer system in which everyone is covered by the same government plan and a program of individual subsidies that ensure give each individual the purchasing power to buy coverage on their own.  Obama did oppose the mandate during the election.  Still there is little question that striking down the mandate would have a significant effect on the health care act even if the Court left large parts of it intact.

First, Obama is right in his clarifying remarks to affirm that it is the Supreme Court and not the President of the United States, that determines the Constitutionality of federal laws.  It has been so ever since Marbury v. Madison.  Although the Constitution did not squarely deal with the issue, it is hard to see how it could be otherwise in a strong Constitutional system.  Having either Congress or the President pass on the Constitutionality of the laws that they themselves pass and sign would severely weaken the power of Constitutional protections, including the Bill of Rights.

We hope that judges do not decide cases based on pure political ideology or the identity of the parties in a particular case.  But it is inevitable that they bring with them personal views about the role of the Constitution, the permissible power of the Courts, and the relative strength of the competing legal principles that necessarily conflict in the most difficult cases.  We abide by their decision not because they are right, but because they are chosen by a political process widely regarded as fair and because abiding by their decision and moving on is better than fighting endlessly over the merits of the case.

In this case the Court must deal directly with the federal government’s power over our economy.  Despite the demurs of its proponents, if the health care act is upheld, it is hard to see what effective limits the Constitution puts on the Commerce Clause.  Some people may not be bothered by the lack of limits.  Others are.  It is an important question.

It is worthwhile to look at the cases that support Obama’s views.  In Lochner v. New York (1905), the case Obama cites, the Supreme Court struck down a New York law that prohibited bakers from working more than 10 hours a day or 60 hours a week.  Given that many people work these hours today at some point in their careers, such a law might strike many Americans as an infringement of personal liberty.  In Wickard v. Filburn (1942) the Court upheld the federal government’s power to punish someone for growing wheat for their own consumption.  This has always struck me as Orwellian, but it is a logical outcome of denying the rationale in Lochner that individuals have an inherent right to engage in contracts that have at most de minimus effects on those around them.   The exercise of such power can only be driven by a belief that Congress is better able to shape large sectors of the economy than are millions of individuals voluntarily interacting to pursue their own interests.

During oral arguments the Administration was not able to articulate a clear line that would limit federal commerce powers if the health care law was upheld.  A decision striking down the law would asset that there is a limit to the federal government’s ability to control the economy.

The partisan nature of Obama’s comments can be seen by comparing his position on this law to his confusing position on the Defense of Marriage Act.  The health care act passed the House of Representatives by 219-212 and the Senate by 60-39.  No Republican voted for it.  Despite over two years of effort, the public still opposes the bill.  The Real Clear Politics average of polls taken between February 14th and April 1 shows the margin of opposition is 9.3 percent.  According to a National Journal poll, 66 percent of the public thinks that the federal government should not be able to require individuals to purchase health insurance.  Only 28 percent support the mandate.  According to a Gallup poll, 72 percent of Americans, including 56 percent of Democrats think the mandate is unconstitutional.  We do not decide Constitutional issues by popular poll, but if the Court does strike down the law, Americans are unlikely to express outrage.

Compare this to the Defense of Marriage Act, a bill passed in the heat of a political moment which will surely go down as being on the wrong side of history.  The bill, which defines marriage for federal purposes as the union of a man and a woman, passed the House 342-67 and the Senate 85-14 and was signed by President Clinton.  This was not a party line vote, 188 House Democrats and 32 Democratic Senators voted for it.  Obama, who is still making up his mind about gay marriage, has adopted the curious position that Section 3 of the law is unconstitutional and, despite his Constitutional obligation to uphold the laws of the land, refuses to defend it against court challenges.  In fact, his administration recently filed a brief arguing that the federal courts should strike it down.  Obama will, however, enforce the law until that happens.  Apparently.

Section 3 of the Defense of Marriage Act simply exercises the ability of Congress to interpret its own laws.  It cannot possibly be held unconstitutional unless the Supreme Court makes homosexuality a protected class, which it may do.  If it does, it is hard to believe that Obama will regard it as “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  Does anyone think Obama would be outraged if the Court struck down this law?

Finally, it is worth looking at what constitutes judicial activism.  The conservative arguments against judicial activism are not directed solely at justices who strike down laws.  It arose mainly out of an era where federal judges took it on to themselves not only to declare explicit segregation illegal but to take an active role in designing busing plans for cities like Boston.  There is a big difference between courts striking down laws they think are unconstitutional and courts enforcing laws they thing legislators should pass.

In a recent editorial, Mark Penn advised Obama to make the best of an adverse Court decision rather than using it as a pretext to attack the Court’s legitimacy.  It is good advice.

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