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The Daily Debate - 7/9/2013

By Robert Tracinski

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July 9, 2013

1. The Day ObamaCare Died

2. Liberty and Anarchy

3. Dispatches

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1. The Day ObamaCare Died

It has taken a week to really grasp the implications, but July 3 is looking like the day that ObamaCare died.

That was the day the administration announced that it was delaying the employer mandate for a year. Since the information was put out in a news dump at the beginning of a long holiday weekend, it has taken a while to assess its significance. But basically what this did was to break open the dam and cause a lot of people to admit that ObamaCare has serious problems.

It gets worse. It turns out the administration has known for months that major parts of ObamaCare couldn't be implemented, and White House spokesman Jay Carney won't say if there's more bad news coming.

But while his signature initiative proves impossible to implement, President Obama has launched a new initiative for "smarter government."

Elspeth Reeve points out that we're now having the debate over ObamaCare that Republicans wanted to have.

"We are now going to have the campaign over Obamacare that we would have had during the 2012 election if anyone but Mitt Romney had been the Republican nominee. Because Obamacare was modeled on health care reform that Romney passed as governor of Massachusetts—individual mandate and all—the presidential campaign wasn't focused on the most controversial legislation of President Obama's first term. In the months before major parts of the law finally kick in, we're going to have that fight. With campaign ads in swing states and everything."

Yes, she really means it about the campaign ads. But she's not quite right about the debate. We've been having this debate all along. How many times have you heard one of ObamaCare's defenders report that the president is launching yet another new push to sell the public on the merits of his law? It seems like the debate over ObamaCare has never ended. The real difference is that this time, the manifest failure of key provisions of the law is causing the case against ObamaCare to be taken a more seriously.

Brit Hume speculates that the whole law could collapse, dissolving on contact with the reality of implementation.

"The problem is we're dealing with two laws, we're doing the health care law and the law of unintended consequences. And the unintended consequences abound here. Nina just mentioned one of the important ones is that, you know, businesses are changing their hiring practices to try to avoid having enough employees to be under the mandate. So you're getting part time work, an explosion in the hiring of part-time workers. Well, this is certainly not what the administration intended or the Democrats in Congress who rammed the bill through intended. So this is a situation where the law as written probably can't work. Pieces of it sort of fall away or be postponed or whatever. So, you know, some legislative changes in effect, or I think the whole thing may simply collapse."

But Philip Klein suggests that if this doesn't happen, Republicans should force the issue and make the law collapse by targeting the crucial failures announced so far.

"[A]s originally envisioned, Obamacare's new insurance exchanges were supposed to be able to quickly verify information provided by applicants against multiple databases before providing beneficiaries with taxpayer subsidies to purchase insurance. But under the gun to get the exchanges up and running by the Oct. 1 deadline, HHS decided to substantially weaken the requirements and rely increasingly on applicants' personal claims about their income level and insurance status, thus increasing the likelihood of fraud.

"If Republicans were smart, they'd draft a bill based on the following mantra: 'No Subsidization Without Verification.' That is, they should take a stand that nobody can receive subsidies through Obamacare before the government has a system in place that can independently verify the information as accurate.

"If such a piece of legislation becomes law, it would effectively delay one of the central provisions of Obamacare indefinitely, because after more than three years, the government has not been able to figure out a way to meet the technological challenge of verification. As stated in the HHS rule published Friday: 'After reviewing and considering the appropriate public comments and completing a technical analysis, we have concluded that the service described in the proposed rule is not feasible for implementation for the first year of operations. This service would involve a large amount of systems development on both the state and federal side, which cannot occur in time for October 1, 2013.'

"For Republicans, this strategy will have the effect of either delaying a big chunk of Obamacare indefinitely or further exposing that it is unworkable by forcing Democrats into an embarrassing and indefensible position."

In doing this, Republicans wouldn't so much be sabotaging the law as forcing the administration to live up to it—to all of it, and not just the parts that they can get working.

Michael McConnell presents a powerful historical case for why the administration can't simply decide what parts of ObamaCare it will implement and when.

"Article II, Section 3, of the Constitution states that the president 'shall take Care that the Laws be faithfully executed.' This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

"This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that 'the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.'...

"Democrats too may acquiesce in Mr. Obama's action, as they have his other aggressive assertions of executive power. Yet what will they say when a Republican president decides that the tax rate on capital gains is a drag on economic growth and instructs the IRS not to enforce it?"

This is why the July 3 announcement was so important. It is important because it demonstrates that it isn't just Republicans who are trying to undermine ObamaCare. It is being undermined by its own inner logic and by the inescapable realities of its implementation.

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2. Liberty and Anarchy

I have been somewhat torn by the Edward Snowden saga. On the one hand, I am glad someone blew the whistle on the full scale and scope of federal surveillance of American citizens. On the other hand, Snowden's travel itinerary to seek refuge among the world's dictatorships—he may finally end up as a guest of the reactionary Chavistas in Venezuela—indicates a motive that is less pro-freedom than anti-American.

Now, I've come across two articles making the case against Snowden more clearly.

Jonathan Tobin reacts to a new interview with Snowden and argues that his goal is not to blow the whistle on intelligence abuses, but rather to cripple American intelligence gathering as such.

"[H]is interview in this week's issue of Der Spiegel is new proof that what he and his supporters in the press and elsewhere are attempting to do is something a great deal more ambitious than curbing the overreach of a government body. By discussing the cooperation of various foreign intelligence agencies and specifically talking about the joint efforts of the United States and Israel to thwart Iran's quest for nuclear weapons, he has crossed yet another line that shows his true intentions. His is not a war to protect privacy. It's a war against intelligence and American foreign policy goals.

"Snowden's decision to expand his revelations from the NSA's monitoring of calls and emails to Stuxnet—the computer virus that was reportedly employed to try to sabotage Iran's nuclear program—is highly instructive. If Snowden's leaks were solely about brushing back the spooks' snooping on Americans, he might have refused to talk about the NSA's efforts directed at Iran. By choosing to wade into specific intelligence efforts that have nothing to do with individual privacy issues, Snowden is making it clear that for all of the talk about his heroism or his defense of constitutional rights, what he is most interested in doing is making the world a little safer for those whom American intelligence is tasked with stopping."

Similarly, Wayne Merry argues that Snowden's leaks (and those of Bradley Manning and Wikileaks) cannot be justified on the basis of libertarianism.

"What Manning and Snowden allegedly did is not whistleblowing; it is anarchy. To expose mountains of classified information and entire programs of national security is not to seek rectification of abuses but the destruction of important institutions created by law to defend the Republic. If the wisdom or utility of public policies is at issue—as such matters often should be—then the appropriate response is to challenge the law or policy. Poor law justifies reform, but not gross lawlessness."

Merry is wrong in one respect: anarchy has been an element of the libertarian movement from the very beginning. And when it comes to foreign policy, many libertarians have always taken their cues from the "blame America first" crowd on the far left.

Snowden's journey, which ends with him fighting for liberty by becoming the puppet of authoritarian regimes, is a cautionary tale about the contradictions of this libertarian anarchism.

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3. Dispatches

Is Syria going to be Iran's Vietnam?

Iran is losing out in Egypt, too.

The evidence so far in the George Zimmerman trial has pretty much demolished the key claims of the case against him.

We need unskilled immigrant labor, too.

In an irresistible bit of poetic justice, Eliot Spitzer will face off against his former madam in the New York City comptroller race.

Check out a moving story about a reporter helping two young athletes to overcome disability and poverty.

Also read the story of one farmer's crusade against the destructive levies of a government Raisin Reserve—a story that reads like it was taken from a comic version of Ayn Rand's Atlas Shrugged.

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—Robert Tracinski

The Daily Debate

edited by Robert Tracinski

Brought to you by RealClearPolitics.

Robert Tracinski is also editor of The Tracinski Letter.

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