Monthly Archive for May, 2011

Yesterday Mitt Romney made an impassioned defense of his Massachusetts health reform law and attempted to explain away the obvious similarities between his state reform effort and Obamacare.

About his own plan, he spoke of the moral responsibility of government to help uninsured people get coverage; of the need for an individual mandate to force free-riders to contribute to the system; for subsidies for lower income people; for regulations barring insurers from discriminating.

As Jonathan Cohn notes in his review of the speech, no one but Romney disputes that these provisions match almost exactly the framework used for Obama’s national reform:

Both set up insurance exchanges for people without access to employer insurance. Both require insurers to provide coverage to anybody, at the same price. Both have an individual mandate. Both have subsidies. Both expand Medicaid coverage. Both seek to cover most, if not quite all, residents. Both set requirements for what insurance must cover.

Romney spent a lot of time distinguishing between his reform and Obama’s by appealing to federalism: that a state-based solution to help people get insurance is not the same as the federal government imposing a solution on the whole country. Basically, state-based coercion to improve human welfare is proper and moral, but federal coercion toward the same end is improper, and in fact is some sort of unique imposition on liberty. This is a very nuanced view which I don’t think is going to resonate with many people. There is actually some philosophical coherency to this federalism argument, but not enough to please or convince anyone, left or right. To wit:

The National Review editorialized against Romney’s speech by noting that it’s not the state/federal coercion distinction that bothers them, but the existence of the coercion itself:

[W]hen conservatives argue that Obamacare is a threat to the economy, to the quality of health care, and to the proper balance between government and citizenry, we do not mean that it should be implemented at the state level. We mean that it should not be implemented at all.

I don’t agree with this, but I find it a much more coherent view than Romney’s delicate needle-threading. If you’re an individual rights purist, it shouldn’t much matter whether the mandates come from the state house or the White House; they’re all bad.

The liberal critique is also more coherent. Romney defended his Massachusetts law as both successful centrist policy and an important moral imperative that improved the lives of hundreds of thousands of previously uninsured residents. He said the Mass. reforms worked. Since the federal law relied on the exact same mixture of Romney-approved reforms, why won’t it work also? Romney is either saying that it WILL work, but that he doesn’t care because it’s just too freedom-killing. That upholding his idiosyncratic view of the Commerce Clause or the 10th Amendment is more important than giving the rest of America access to his (in his view) wildly successful reforms. Or else he is saying that it simply won’t work nationally; that his state-based reforms are just incapable of being scaled up for some reason, and that it’s not even worth a try to replicate his Massachusetts miracle. If that is his position, I haven’t heard him make an argument for it.

I said the federalist position had some coherency, but when it comes to health care I really don’t think it holds up. In his presentation Romney hit all the federalist themes: States are the laboratories of democracy, the hotbeds of policy experimentation; that our foundational social contract biases decentralized state-based solutions over federal dictates. Essentially he and other opponents of the Affordable Care Act are arguing that health care/insurance is not a national problem; and so to impose a national solution violates the spirit of the constitution, and perhaps the letter as well.

This idea that health care is not an issue fit for national consideration, and in fact that federal involvement represents some sort of unique death of liberty, is really bizarre to me. There is already broad consensus that the federal government should be deeply involved in the provision of health care to military personnel, all veterans, everyone over 65, poor children, disabled people; am I missing anyone? And of course we think health insurance is so important that we give a giant federal tax subsidy to all people who get their insurance through their employer. Randian free-enterprise state of nature, this ain’t. Even the Republicans’ favorite reform idea, and echoed by Romney yesterday—the ability to buy insurance across state lines—implicitly concedes that the issue transcends a strict state-by-state treatment.

Why can’t Republicans just admit that the federal government already either provides for, regulates, or subsidizes the health insurance of nearly every American? That the ACA doesn’t represent some brand new attempt by Washington to finally get its claws on Americans’ health care. That in fact it’s this system, with the feds already deeply enmeshed in every stage of health care provision and payment, that Republicans fought so hard to preserve, and are fighting now to reinstate. Once we accept the banality of the idea of federal involvement in health care, it seems beyond sensible to say that it might be a good idea to introduce some efficiencies into this crazy state/federal patchwork arrangement featuring fifty different systems, which costs twice the price, and still manages to leave tens of millions uninsured throughout the country.

It is always maddening to recall that this point used to be uncontroversial, even to Republicans. In fact, most of the ACA’s key provisions are formerly Republican ideas; it really makes me wonder what we’d be arguing about if a President McCain had enacted a similar bill. Mitt Romney would probably be his HHS Secretary, overseeing the implementation of the conservative health care triumph which covered nearly every American while promoting individual responsibility, encouraging competition, and preserving the private market.

Instead we are stuck in this dysfunctional partisan tribalist nightmare in which a sensible, smart, very well-informed man has a fatal political problem because of his track record of actually getting things done to improve people’s lives. That sort of governing accomplishment isn’t welcome in today’s Republican Party.

Update: The Onion, of course, got there first.

There has been hardly any controversy over the issue of whether it was kosher for U.S. special operations forces to shoot Osama bin Laden in the face when he was unarmed and not explicitly resisting. This is as it should be: as Matt Yglesias notes, this was about as legal as it gets.

In the New Yorker, Raffi Khatchadourian runs through the military rules of engagement governing the bin Laden operation, as well as the more general face-shooting guidelines for combatants, insurgents, and terrorists abroad. He explains that there are two classifications for potential targets. First, so called “combat-based targets,” those who “act in a hostile manner or display hostile intent.”

Had bin Laden been armed and shooting at the time of the raid, he would have very easily met the standard of a combat-based target, and could legally have been killed. But as Jay Carney, the White House spokesperson, said the other day, “Resistance does not require a firearm.” Bin Laden could have been legally killed if he were holding a weapon and not firing—or if he were holding no weapon at all. Any soldier seeing bin Laden and recognizing him could make a reasonable assumption that he had “hostile intent.”

The military is supposed to act proportional to the threat, but there is some leeway built in for fluid combat situations where hostile intent is often difficult to divine; if bin Laden had been waving a can opener at the Seal team that probably would have been fine grounds to take him out.

But we don’t even need the hostile manner/intent standard when it comes to bin Laden:

For many years [under the Rules of Engagement], soldiers have also been permitted to kill people because of who they are, rather than what they are doing—such people are “status-based targets.” […] A status-based target can become a non-combatant (that is, illegal to kill) only if he is wounded to the point where he no longer poses a threat, or if he is in the process of surrendering…. In such a circumstance, the law suggests that the onus is on the target to immediately revoke his combatant status. Soldiers do not have to wait.

And if that doesn’t work for you there is also a host of international law statutes on the right of national self-defense in the context of counterterrorism.

So bin Laden was certainly face-shootable by any definition, but lest we forget, in addition to being a war combatant and a military target, he was also a criminal who had been indicted twice by grand juries in U.S. civilian courts. Both indictments came in 1998: the first in connection with a 1995 truck bombing in Riyadh that killed 5 Americans, and the second for his role in the U.S. embassy bombings in Tanzania and Kenya. President Bush famously put him atop the FBI Most Wanted list after 9/11, and though the promotion was in response to 9/11, bin Laden was only wanted on the basis of the previous indictments.

The point is, the question of whether this terrorism struggle is a long war or a criminal conspiracy has always been a false choice. Even when it comes to the worst terrorist in the world, classifications are murky and not mutually exclusive. Throughout bin Laden’s ignominious career, sometimes he was a warrior, sometimes a criminal. Sometimes we appealed to his host governments to arrrest and extradite him to answer charges; sometimes we send in the face-shooters in the middle of the night. If he showed any hint of hostile intent, he’s fair game for military killing. But if he really, really wanted to surrender, the top U.S. law enforcement official said we would have had to apprehend him, which presumably would have led to some manner of judicial review down the road.

This brings us back to the case of Anwar al-Awlaki, the American cleric hiding in Yemen who is said to have helped orchestrate or at least inspire the Fort Hood shooting, the Christmas Day bombing attempt, and the failed Times Square attack. I say he is “said to have helped” not to imply that he is innocent, but because he has never been indicted for any crime, nor has there ever been any public evidence presented against him. What happened was that the president, Leon Panetta, and the NSC decided amongst themselves that an American citizen is to be targeted for assassination abroad without any due process. I have struggled mightily with this issue before, most extensively here and here.

Awlaki would certainly seem to fit the status-based target criteria, and the same presumption of hostile intent applied to bin Laden could surely be applied to Awlaki. So am I hypocritical in advocating face-shooting for the former but not the latter? No, I say use the same standard in both cases. Just like bin Laden, Awlaki is sometimes a combatant, sometimes a terrorist, sometimes a criminal. If there is evidence enough to condemn him to death, then there is evidence enough to indict him in a court of law, just as we did for bin Laden.

The Obama administration has entertained none of this, and has refused to submit its decision to target Awlaki to any judicial oversight whatsoever. It is a breathtaking assertion of executive power; in fact the most solemn of powers, the state-sanctioned killing of citizens. That nothing will come of this minimally burdensome legal process is beside the point. The form matters. If Awlaki gets the face-shooter treatment in the course of his attempted apprehension, so be it. But this precedent, whereby the president and a few of his advisors can order the extrajudicial killing of a U.S. citizen on the basis of evidence which they refuse to submit to any legal review, is just terrifying to me. (It’s a good time to remember that our executive branch has a rather appalling record when it comes to detaining innocent people and denying them any legal recourse for years.)

The level of deference to executive authority this implies is equally troubling. The world would indeed improve some if Awlaki were to follow bin Laden into the sea. But there ought to be at least a wisp or fragrance of a constitutional process here. If only we had a system of governance in which a co-equal branch of government might demand one.