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Feb 21 2015

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Obama’s Tenuous Legacy

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Consent of the Governed Matters...

Consent of the Governed Matters…

In the seventh year of his presidency, and with an eye on both the door and the history books, Barack Obama’s legacy is suddenly looking precarious.

Obamacare:

In March, the Supreme Court will again take up the issue of Obamacare in King v. Burwell.  The Court will hear oral arguments to decide whether the Affordable Care Act (ACA) allows the IRS to provide tax subsidies to citizens in states that did not set up healthcare exchanges, but rather rely on the federal exchange to compare and offer health insurance.

The plain language of the law makes clear that subsidies were designed to flow only to those states that created their own healthcare exchanges. Jonathan Gruber – the “architect” of Obamacare – has helpfully pointed out that this construction was not a drafting error, but a key design component. The great minds behind Obamacare wanted to use the subsidies as an inducement to states to create their own healthcare provider networks.

However, once the bill became a law, 34 states ultimately chose not create their own healthcare exchanges, relying instead of the federal exchange. By the plain text of the law, citizens in those states were not eligible for health care subsidies.  But the Administration has rarely let the law get in the way of its policy objectives, and thus the IRS issued regulations providing subsidies to all eligible citizens, regardless of which type of exchange they use.

If SCOTUS rules in favor of the clear language of the law, the hubris of Gruber and others will have ironically been Obamacare’s undoing. Subsidies to individuals would immediately stop in 34 states. And as penalties against companies in those 34 states – which are the foundation of the employer mandate (covering companies with 50 or more full-time workers) – are tied directly to the ability of employees to access healthcare subsidies through the exchanges, Obamacare effectively begins to collapse upon itself. For those still in the exchanges after the ruling, the actuarial damage will be immediate and daunting, with premiums skyrocketing as subsidized individuals can no longer access their original policies.

There is little doubt, even among the law’s most ardent supporters, that a ruling upholding the plain text of the law would be catastrophic for Obamacare.

Climate Change:

Even during the heady days of President Obama’s first term, when Democratic majorities reigned supreme, there was little real chance that a comprehensive climate change bill would make it to POTUS’ desk.  Even in 2009, there were too many energy-state Democrats in Congress to allow the kind of bill that would have found favor with POTUS and the environmentalists. Republican control of the House after 2010 (and the full Congress today)  eliminated any possibility of the kind of energy production-crushing law the President would want to sign.

But the Administration has never been one to let something as meddlesome and irritating as the popular vote get in the way of an overarching policy objective. By virtual fiat, POTUS had the Environmental Protection Agency (EPA) virtually manufacture tenuous authorities from existing statutes to advance a climate change agenda without any congressional approval.

Last year, the Administration asserted that the EPA had the authority, under the Clean Air Act  to regulate carbon emissions from power plants, requiring reductions of 30 percent by 2030. The implications on the power sector, cost of electricity, and the reliability of the US electric network would be significant, and all without explicit congressional permission.

12 states sued and the case will be heard before the DC Court of Appeals on April 16th.

When Harry Reid used the “nuclear option” to end the 60 seat threshold for sub-SCOTUS judicial appointments, he did so primarily to allow the Obama administration to pack the DC Court of Appeals with reliably liberal judges.  From the beginning of Obama’s term, the DC Court has been a judicial thorn in his side, limiting unilateral actions and expansive interpretations.

Thus, while a favorable decision on the EPA’s power plant regulations are a strong possibility, the case will then immediately be appealed to SCOTUS, probably tying up the regulations until after Obama’s term.

Illegal Immigration:

Only hours after the GOP swept the 2014 midterms, establishing majorities from local to the federal level not seen since 1929 and serving as a utter rebuke to Obama and the Democrats, the President decided to act unilaterally on illegal immigration, bypassing Congress with an extortion threat – pass a comprehensive immigration bill that encompasses my Executive Orders and there will be no need for me to act.

Not so fast.

 With moxie and elan, a Circuit Court judge in Texas this past week tore apart the legal rationale for President Obama’s new, excessive and ultimately unconstitutional action to unilaterally end deportation and grant limited rights and benefits to up to five million illegal immigrants through executive fiat.

The judicial “stay” on the order, implemented by the Department of Homeland Security (DHS), effectively halts the program before it can begin actively processing illegals. The Justice Department announced yesterday that it will appeal the “stay” (unlikely) while it makes the case for an expedited appeal before the Fifth Circuit Court of Appeals in New Orleans, traditionally a more conservative court. Win or lose, the case will almost certainly end up before SCOTUS.  As with the EPA, on-going litigation will likely prevent implementation of the immigration order until after the next presidential election, when it will be up to the new POTUS to decide.

Conclusion:

What then, is the Obama legacy?

Ironically, three, nearly certain accomplishments during Obama’s term have little to do with him personally, and are issues which he actively campaigned against in 2008 – marriage equality, marijuana legalization, and energy independence via fracking.  Beyond that, the pickings are slim.

The Stimulus was an $800 billion failure. The clean energy loans were an expensive, crony-capitalist boondoggle. The rich became richer on a Fed-subsidized acid-trip of wealth inflation, while the middle class lost ground. The work force was hollowed out as millions of Americans dropped out of the work force entirely. While the economy returned to growth in Q3 of 2009, this has been the worst economic recovery since the Great Depression; largely due to Administration policies that undermined the organic economic growth that POTUS claims to want.

Overseas, it has been one unforced error after another – in Russia, in Iraq, in Syria, in Libya. As international crises multiply, as China grows stronger and the face of terror becomes even more lethal and radical, the Administration has seen the defense budget decline to a percentage of GDP not seen since before Pearl Harbor.  When the Japanese attacked Hawaii the US Navy had 330 ships.  Today’s fleet has 284.  The decline in American power and influence is real and tangible, compounded by a persistent “punyliteralism” exercised through leadership incompetence.

Take away Obamacare, Climate Change and Immigration, and Obama has virtually no record at all.

But no record does not mean no lesson.

Candidate Obama came to office promising change. But that was never a kind of change which was rooted in popular support and legislative coalitions that would have – critically – included the opposition party. It was an uncompromising ideological change where, sadly, the means justify the ends – where victory was possible, but almost always, ephemeral.

Obamacare was a hollow victory. The only piece of social policy legislation in American history that was passed on a party line vote – utilizing extraordinary legislative procedures – in contravention of the wishes of a continuing majority of the American people. It is no wonder that the Act remains divisive and in litigation.

Only one person deserves responsibility for that – President Obama, who continued to push for passage of Obamacare even after Scott Brown won Ted Kennedy’s Senate seat in deep blue Massachusetts on a campaign based in opposition to healthcare legislation.

Contempt for voters. Contempt for elections. Contempt for the separation of powers between the Executive and Congress. In legacy, the democratic process was constructive for POTUS only to the point where it supported him or his goals. After that, it became an irritating obstruction.

Which leads to one, final observation.

It is through the Obama presidency that the American system demonstrated its durability and resiliency. It is neither fast nor efficient, but eventually the system will catch up with every president intent on having their own way regardless of the circumstances.

A motto for the bookends of POTUS’ presidency?

“Obama fought the law and the law won.”

 

 

 

 

 

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