Tuesday, January 28, 2014
Monday, January 20, 2014
The following crossed my desk two days ago. The emphases are mine.
The Last Generation of the West and the Thin Strand of Civilization
Had the Greeks lost at Salamis, Western civilization might easily have been strangled in its adolescence. Had Hitler not invaded the Soviet Union, the European democracies would have probably remained overwhelmed. And had the Japanese just sidestepped the Philippines and Pearl Harbor, as they gobbled up the orphaned Pacific colonies of a defunct Western Europe, the Pacific World as we know it now might be a far different, far darker place.
I am not engaging in pop counterfactual history , as much as reminding us of how thin the thread of civilization sometimes hangs, both in its beginning and full maturity. Something analogous is happening currently in the 21st-century West. But the old alarmist scenarios — a nuclear exchange, global warming and the melting of the polar ice caps, a new lethal AIDS-like virus — should not be our worry.
Rather our way of life is changing not with a bang, but with a whimper , insidiously and self-inflicted, rather than abruptly and from foreign stimuli. Most of the problem is cultural. Unfortunately it was predicted by a host of pessimistic anti-democratic philosophers from Plato and Aristotle to Hegel and Spengler . I’ve always hoped that these gloom-and-doomers were wrong about the Western paradigm, but some days it becomes harder.
Over 90 million Americans who could work are not working  (the “non-institutionalized” over 16). What we take for granted — our electrical power, fuel, building materials, food, health care, and communications — all hinge on just 144 million getting up in the morning to produce what about 160-170 million others (the sick, the young, and the retired who need assistance along with the 90 million idle) consume.
Every three working Americans provide sustenance for two who are not ill, enfeebled, or too young. The former help the disabled, the latter take resources from them. The gang-banger has only disdain for the geek at the mall — until one Saturday night his liver is shredded by gang gunfire and suddenly he whimpers (who is now the real wimp?) that he needs such a Stanford-trained nerd to do sophisticated surgery to get him back in one piece to the carjackings, muggings, assaults, and knockout games — or lawsuits follow!
Given that the number of non-working is growing (an additional 10 million were idled in the Obama “recovery” alone), it is likely to keep growing. At some point, we will hit a 50/50 ratio of idle versus active. Then things will get interesting. The percentage of workers’ pay deducted to pay for the non-working will soar even higher. So will the present redistributive schemes and the borrowing from the unborn.
We forget that the obligations of the working to care for the 70-80 million who genuinely cannot work become more difficult, when the 90 million who can work for all sorts of reasons won’t. Note the theme of this essay: the more in humane fashion we provide unemployment insurance, food stamps, subsidized housing, legal advice, health care and disability insurance, the more the recipients find it all inadequate, inherent proof of unfairness and inequality, and always not enough.
Much of the Modern University Output Coarsens American Life
We will hear even more shrillness about “fairness” and “equality.” The more government support, all the more will grow the sense of being shorted. When someone idle receives a free iPhone, he doesn’t thank government for its magnanimity. More likely, he damns it for allowing someone else the ability to purchase an updated, superior model. I have talked to several students about their iPhones; so far not one has said, “Wow, I have more computer and communications power in my palm than a multi-millionaire had  just 15 years ago.” Mostly they wished they had an updated version like someone better off.
An indebted and crippled U.S. has so far survived the second decade of the 21st century largely due to some ingenious engineers and audacious workers who revolutionized the gas and oil industry, at a time when wind and solar merely amused us, when our enemies considered us ripe for perpetual petro-blackmail, and when our wherewithal to pay for more imported energy was increasingly questionable.
A very few people are saving very many. But how thin the strand of civilization hangs — given that the forces of our modern Lotus Eaters (every bit as dangerous in their postmodern imaginations as the Cyclopes are in their premodern savagery) have stopped the Keystone Pipeline, stopped most federal leasing of new gas and oil finds, and are trying to regulate fracking and horizontal drilling out of existence where it might be most vital to the U.S. — as in the Monterey Shale formation in California.
How ironic is the Sierra Club Bay Area grandee who finds light when he flips on his office switch, and would find no light were his utopian ideas about wind, solar, and biomass to come to full fruition . Only what he despises  — radioactive uranium, messy drilling rigs, and unnatural dams — for now continue to bring him what he must have. Again, the theme: the more the green activists empty reservoirs to save a bait fish, or stop fracking, or prevent salvage logging, the angrier they sigh that it is not enough and the more they must count on someone ignoring them to provide them with what they must have.
The universities were the great backbone of the West, from the Academy and Lyceum to medieval Pisa and Oxbridge to the great 18th- and 19th-century founding of American campuses. Not necessarily any longer . Too many are bankrupt morally, economically , politically, and culturally.
The symptoms are terrifying: one trillion dollars in student debt (many of these loans accruing at higher than average interest rates and even before students have graduated); a small Eloi class  of rarefied elites who teach little and write in runes that no one can decipher; a large Morlock class of part-timers and oppressed lecturers who subsidize the fat and waste of the tenured and administrative classes; graduates who are arrogant but ignorant, nursed on –studies ideology without the liberal arts foundations to back up their zeal; and a BA/BS brand that no longer ensures better-paying jobs, if any jobs at all.
In sum, apart from the sciences and medicine, most of the university coarsens rather than enlightens American life.
The current campus is unsustainable and we are beginning to see its decline, as online courses and for-profit tech schools usurp its students. The liberal arts are not nurtured and protected for another generation in the university. Instead, their umbilical cords have become cut with the cleaver of race/class/gender no-nothingism. Again the theme: the more bloated, exploitive, and costly the university, the more it lashes out it that it is short-changed, the victim of philistine budget cuts, and the last bastion of civilized life.
Civilization Seems to Be Losing
Popular culture is likewise anti-civilizational . Does anyone believe that Kanye West, Miley Cyrus, and Lady Gaga are updates to Glenn Miller, jazz, Bob Dylan and the Beatles? Even in the bimbo mode, Marilyn Monroe had an aura  that Ms. Kardashian and Ms. Hilton lack. Teens wearing bobby socks and jeans have transmogrified to strange creatures in our midst with head-to -oe tattoos and piercings  as if we copied Papua New Guinea rather than it us. Why the superficial skin-deep desire to revert to the premodern? When I walk in some American malls and soak in the fashion, I am reminded of National Geographic tribal photos of the 1950s.
Again the theme: the more we borrow to provide iPads to our supposedly deprived youth, the more in theory they can access in a nano-second the treasures of their culture and heritage, and in fact the more likely it is that they have no clue what Gettysburg was , who Thomas Jefferson was , or who fought whom over what  in World War II. Our managers in education, terrified of confronting the causes of ignorance, believed that the faster youths could transmit nothingness, the more likely they might stumble onto somethingness.
The fourth-century Greeks at the end pasted silver over their worthless bronze coins — “reds” being the protruding noses and hair of the portraiture that first appeared bronze-like, as the silver patina rubbed off. The bastardization of the currency fostered many books on Roman decline. More worthless money for more people was a sign of “crisis” — analogous to our own quantitative easing and $17 trillion in debt.
Once more the theme here is not just that we are insolvent, but that we are so insolvent that it is now a thought-crime to talk of dissolution, bankruptness, and irresponsible spending — all damned as symptoms of “callousness” to the poor, proof of “social injustice”, and “obsessions” with deficits. The medicine of austerity always becomes worse than the disease of profligacy.
What do I mean about the “thinning strand of civilization”?
A shrinking percentage of our population feeds us, finds our energy, protects us, and builds things we count on. They get up each morning to do these things, in part in quest for the good life, in part out of a sense of social obligation and basic humanity, in part because they know they will die if idle and thrive only when busy, and in part simply because “they like it.”
We can stack the deck against them with ever higher taxes, ever more regulations, ever more obligations to others, and they may well continue. But not if we also damn them as the “1%” and call them the agents of inequality and the fat cats who did not build what they built or who profited when they should not have.
You cannot expect the military to protect us, and then continually order it to reflect every aspect of postmodern American sensitivity in a risky premodern world. Filing a lawsuit to divert a river’s water to the sea during a drought is a lot easier and cleaner than welding together well-casings at sea. Last week, an off-duty armed correctional officer in Fresno intervened in a wild carjacking, shooting and killing the gang-member killer and thus limiting his carnage to one death and two woundings rather than five or six killings — at the very moment Harvey Weinstein — of guns-blazing Kill Bill and Pulp Fiction fame and profits — promised to destroy the NRA . These contrasts say everything about the premodern, the postmodern and the innocent who pay the tab in-between.
Each day when I drive to work I try to look at the surrounding communities, and count how many are working and how many of the able-bodied are not. I listen to the car radio and tally up how many stories, both in their subject matter and method of presentation, seem to preserve civilization, or how many seem to tear it down. I try to assess how many drivers stay between the lines, how many weave while texting or zoom in and out of traffic at 90mph or honk and flip off drivers.
Today, as the reader can note from the tone of this apocalyptic essay, civilization seemed to be losing.
In this essay, Dr. Hanson has come to the edge of acknowledging that through their own efforts (through their own sanction, one could say) the decreasing few are servicing the supposed needs of the increasing many. As this immoral balance seems to tip every month we come closer to the philosophical core of Ayn Rand's novel Atlas Shrugged--where altruism, collectivism, and statism finally drive the producers underground, leaving the parasites who fed on them to fend for themselves. Indeed, as Dr. Hanson observes, "civilization seem[s] to be losing." A central question is "how much is too much." It is not apt to be long before we find out.
Sunday, January 19, 2014
January 19, 2014
Beyond Bridgegate: Ignoring the Elephant in the Room
By Janet Levy
Muslims & Political Influence in New Jersey
New Jersey has the second-largest Muslim population of any state, after Michigan. Paterson, the county seat of Passaic County, is home to a controversial Hamas-linked mosque, the Islamic Center of Passaic County (ICPC), and contains the largest population of Palestinian Muslims in the United States. The Muslim community in South Paterson is referred to as "Little Ramallah."
This past year, Paterson's mayor, Jeff Jones, was the first U.S. city official to host a "Palestinian-American Day," with a Palestinian flag hoisted over City Hall on Israeli Independence Day. Astonishingly, the event organizer, Khader Abuassab, a convicted criminal who pled guilty to fraud and swindling, is on record telling local Muslims not to cooperate with law enforcement. Further, Abuassab served on the Paterson Board of Education, ran for City Council, and now serves on Governor Christie's Muslim Outreach Committee.
Christie & Mohammed Qatanani
But Christie's record of political support for Muslims dates back to his days as U.S. attorney. It was then, in 2006, when he came to the aid of a radical Muslim imam, Mohammed Qatanani, who was on the verge of being deported from the United States for failure to disclose terrorist affiliations.
The little-known details are that Qatanani arrived in the United States in 1996 to take over the ICPC, one of the largest mosques in the state. Housed in a former synagogue, the ICPC was founded in 1989 by Imam Mohammed El-Mezain, a convicted Hamas operative and fundraiser who publicly boasted of raising close to $2 million for the organization. In 1996, Qatanani arrived to succeed El-Mezain.
Given the mosque's affiliations, it's not surprising that Qatanani also has a background littered with terrorist associations. He was arrested and convicted in Israel in 1993 as a self-admitted member of Hamas. As a Muslim Brotherhood operative, he had provided financial support for terrorist activities and continued to send large cash transfers to the West Bank once he arrived.
These activities raised suspicions by the Department of Homeland Security (DHS), which in 2006 began attempts to deport Qatanani for failure to disclose his 1993 arrest in Israel for involvement with a terrorist group. Despite the charges for his terrorist activities and very real security concerns about the Hamas-affiliated imam, a spokesman for Qatanani, Aref Assaf, called the deportation effort "vindictive," implying that the investigation was ill-conceived and baseless.
Then, then-U.S. Attorney Chris Christie came to the aid of the imam. In response to a 2008 DHS court filing, Christie defended the imam as a "man of great goodwill" and sent his assistant U.S. attorney, Charles McKenna, to court to serve as a character witness. As a result of Christie's efforts, Qatanani was granted legal permanent residency.
Christie & Sohail Mohammed
In 2011, as governor, Christie aggressively endorsed and appointed Qatanani's lawyer, Sohail Mohammed, as a New Jersey Superior Court judge. Some speculated that the post was a payoff to Imam Qatanani for ICPC and Muslim community support for his gubernatorial campaign.
Sohail Mohammed is a board member and general counsel of the American Muslim Union (AMU), an organization co-founded by a former executive for the Council on American Islamic Relations (CAIR), a Muslim Brotherhood front and unindicted co-conspirator in the Holy Land Foundation trial, the largest terrorism funding trial in U.S. history. Several AMU executives have held leadership positions at the Hamas-linked ICPC. Sohail Mohammed publicly defended convicted terrorist and Palestinian Islamic Jihad (PIJ) leader Sami Al-Arian and criticized the U.S. government for shutting down the Holy Land Foundation for its support of Hamas.
During the trial of the Fort Dix Six, who conspired to attack U.S. military personnel at the base, Mohammed was quoted as stating, "If these people did something, then they deserve to be punished to the fullest extent of the law. But when the government says -- 'Islamic militants,' it sends a message to the public that Islam and militancy are synonymous. Don't equate actions with religion."
But such statements are not a reasoned plea for objectivity and independent thought; rather, they are simply subterfuge and whitewashing of Islam. That's because Koran-sanctioned terrorism or jihad is an integral, doctrinal part of Islam. In the name of Islam, more than 20,000 deadly terrorist attacks have been committed worldwide since 9/11, underscoring that it is not individuals, but the essence of Islamic militant beliefs that sparks terrorism.
In other disturbing actions, Mohammed had criticized the television series 24 for depicting Muslims as terrorists. In 2005, he called for a "bias crime" investigation of the Coptic community for its anti-Muslim sentiment following the slaying of a Coptic family in Jersey City. As an American lawyer no doubt familiar with the Constitution and the First Amendment, Mohammed doubtless knew that his request constituted a threat to the Coptic community's freedom of speech by attempting to muffle their vocal suspicions of Muslim involvement in the crime.
Christie & Muslim Outreach Committee
In 2012, Gov. Christie called for an investigation into the New York Police Department's counterterrorism procedures. He objected to their surveillance of mosques and a Muslim Brotherhood-sponsored student group, the Muslim Student Association (MSA). When the New Jersey attorney general concluded that the NYPD had acted lawfully in pursuing terrorist activities, Christie formed the Muslim Outreach Committee, an effort to mollify the outrage expressed by local Muslims. All the individuals chosen for the committee who were to act as liaisons between the Muslim community and state officials, including top security personnel, were associated with the Muslim Brotherhood, including the beleaguered Imam Qatanani.
Clearly, support for a known Hamas operative like Qatanani is a serious threat to national security. According to a report by the Investigative Project for Terrorism, Qatanani publicly supported payments to families of suicide bombers and condemned Christians to "eternal hellfire." As a former prosecutor, Christie must have had access to this information.
That same year, Christie hosted a Ramadan dinner at the Governor's Mansion and invited Imam Mohammed Qatanani, referring to him as a "friend," "a force for good in his community," and someone who has been helpful to New Jersey law enforcement. No mention was made of the imam's extensive terrorist ties, radical sermonizing, and law-breaking activities.
In an interview with The Blaze in 2013, Qatanani called for limits on free speech to protect Islam from criticism. Expressing views in accordance with Islamic blasphemy laws or sharia, Qatanani stated that although Americans have freedom of speech, they "have no right to [talk about Muslim] holy issues" because to do so will incite "hatred or war among people." He went on to explain that criticizing Islam poses a national security threat to the United States and recommended that those responsible be investigated by the DHS. He advocated Islamic blasphemy laws that criminalize criticism of Islam and maintained that mocking Jesus or Moses is acceptable for Americans, but it is forbidden to mock Mohammed.
Christie & Sharia
Besides actively seeking political and personal working relationships with Muslims linked to terrorism, Gov. Christie has ignored concerns about the application of sharia, or Islamic law, in the United States. In the face of findings by an in-depth 2011 study initiated by the Center for Security Policy to the effect that 23 states had already used sharia as a factor in their deliberations, and despite the fact that sharia contradicts the U.S. Constitution, requires gender and religious apartheid, denies freedom of speech and religion, and promotes cruel punishments, Christie has state that "[t]his sharia-law business is crap...and I'm tired of dealing with the crazies."
This, even though in 2009, the year Christie was elected governor and after he spent six years as U.S. attorney in New Jersey, a New Jersey judge actually referenced sharia law in his decision. The case involved the judge's refusal of a temporary restraining order for a divorced Muslim woman who had been raped and assaulted by her ex-husband, who maintained that Islamic doctrine requires wives to comply with all of their husbands' sexual demands. Under current New Jersey law, non-consensual sex between married persons is considered rape. Fortunately, the decision was overturned 13 months later, but no thanks to any action by Christie.
In another instance, Christie placed the sensitivity of Muslims above the constitutional rights of a New Jersey Transit worker. When Derek Fenton was fired by the transit authority for burning pages of the Koran at the planned site of the Ground Zero mosque on the 9th anniversary of 9/11, Christie approved his termination. Fenton, who was not in uniform and was on his own time, was clearly exercising his constitutional rights. But Christie dismissed the ACLU's criticism of Christie's utter disregard for the First Amendment, saying of Fenton's actions, "That kind of intolerance is unacceptable."
The significance of Bridgegate, however extensive, pales in comparison to Christie's deeply troubling relationships with terrorist-sympathizers and supporters in the New Jersey Muslim community. He has sheltered known Islamists from law enforcement, excused their hateful rhetoric, ignored threats to national security, criticized legitimate law enforcement activities, and dismissed constitutional rights -- all to pander to a Muslim constituency.
That someone of Christie's leanings could wield the power of a U.S. attorney and then a governor is concerning enough. To imagine him at the helm of the country is a frightening prospect.
Thursday, January 16, 2014
Someone recently called to my attention that Paramount Pictures apparently posted the “trailer” to Eye for an Eye on YouTube. I saw it for the first time yesterday, and was pleased to see that it captured the essence of the movie quite well. http://youtu.be/WJjRn_GH9R8
Here is the link to the full movie available for rent or purchase: http://youtu.be/J1uFNu_N0O4
Thursday, January 9, 2014
In my January 5, 2014 post (“Hush Rand, Please!!) I accused Senator Rand Paul of grandstanding by bringing a lawsuit against the National Security Agency.
Two days ago, Paul’s grandstanding morphed into a crude attempt to mine email addresses and raise money for his RANDPAC. The Kentucky United States Senator is asking ten million Americans (!!) to lend their names to his case and, of course, to send money.
Putting aside what his saber-rattling, fund-raising scheme says about Senator Paul, the legal fact is that his lawsuit is frivolous in the extreme. And he and/or his Dream Team of lawyers must know it.
Writing on January 8, 2014 in in National Review Online about another current frivolous grandstanding lawsuit—by Wisconsin United States Senator Ron Johnson, challenging Obamacare—Andrew C. McCarthy explains why Johnson’s case, and by analogy Senator Paul’s, are constitutionally improper and impractical (and, I would add, hypocritical).
* * *
Ron Johnson’s Frivolous Obamacare Lawsuit
It is not constitutionally proper or practical for a legislator to sue the president over a public-policy dispute.
By Andrew C. McCarthy
Back in October, Ron Johnson of Wisconsin slammed his fellow Republican senator Ted Cruz of Texas for what he portrayed as Cruz’s flawed strategy of attempting to defund Obamacare. But it soon became painfully apparent that Johnson had no strategy of his own to mount any meaningful opposition to the law. He had no answers, and barely a coherent thought, when grilled on the matter by Mark Levin. Now, as reported Monday in Alec Torres’s post and outlined in the senator’s own Wall Street Journal op-ed, Johnson has decided that filing a lawsuit is the way to go. . . . thereby demonstrating that he still has no serious strategy — other than to engage in the very sort of grandstanding the Republican establishment accused Cruz of.
Johnson says he will file a complaint in Wisconsin federal court. The point, apparently, is to try to have a judge affirm that it is illegal for President Obama to exempt members of Congress and their staffs from the full financial burden of purchasing insurance through an Obamacare “exchange.”
The senator is right when he says the risibly entitled Patient Protection and Affordable Care Act (PPACA) does not permit this — just as it does not permit various other exemptions, waivers, and actions our would-be emperor-in-chief deems himself empowered to order.
The PPACA provides that people who earn salaries above a certain threshold are not eligible for taxpayer subsidies to defray the cost of health insurance purchased on the new exchanges. It also requires members of Congress and their staffs to obtain insurance through the exchanges. Previously, those members and staffers were covered under the Federal Employees Health Benefits Program (FEHBP), under which taxpayers picked up the tab for nearly three-quarters of their premiums. Federal law enabled this cushy arrangement only for the FEHBP; if Congress wanted to similarly subsidize its own exchange-purchased policies, it needed to write a law saying so.
With Obamacare, Congress failed to do that. As John Fund notes, the resulting loss of premium support would amount to an annual pay cut of between $5,000 and $11,000 per annum for members and staffers (depending on whether they had individual or family coverage under FEHBP). That is, congressmen and their staffs would be experiencing the same pain Obamacare is inflicting on everyone else. But facing mutiny — and realizing that if enough Democrats revolt, Obamacare could be massively amended or repealed — President Obama came to the rescue. His White House Office of Management and Budget purported to “interpret” the PPACA to allow the subsidies to continue. In effect, Obama rewrote Obamacare to spare lawmakers and their staffs.
All that said, however, it is no more constitutionally proper or practical for a legislator to sue the president over a public-policy dispute than for the president to violate valid laws. As I’ve observed before (most recently, here), the Framers gave Congress two tools to rein in a lawless chief executive: the power to cut off funding and the impeachment power. These tools are powerful, but they have serious political ramifications, and thus elected officials shy away from using them. But they are the only tools available, and politicians cannot forever evade accountability. After all, not using these powers has ramifications too, such as encouraging rampant presidential lawlessness.
That puts Beltway pols in a bind: They cannot afford to be seen as doing nothing about Washington self-dealing, but they lack the fortitude to take serious constitutional action. So they get creative when it comes to otiose stunts that give the illusion of action: e.g., parliamentary gimmicks that allow them to appear to oppose bad legislation while ensuring that it passes; resolutions that “censure” or hold “in contempt” lawless officials they lack the nerve to impeach; and, on occasion, big-wind, no-rain lawsuits.
The latter species of gamesmanship is not in Congress’s constitutional arsenal precisely because political accountability is the foundation of representative self-government. Public-policy matters — such as, who should be entitled to subsidies in a convoluted central-planning scheme — must be decided by elected officials who answer to the voters, not by politically unaccountable judges. In the absence of some constitutional defect (and there is nothing inherently unconstitutional about the political class’s inveterate practice of insulating itself from the effects of the crummy laws it enacts), the “political question” doctrine requires courts to butt out. The reasons for this are practical as well as legal.
Courts have no power to enforce their rulings. They are completely dependent on the executive branch to see that their writs are obeyed. If a court were foolish enough to entertain Senator Johnson’s lawsuit, what would happen if it ruled in his favor? Presumably (and presumptuously), the court would direct the president to enforce its ruling against . . . the president. Good luck with that. President Obama does not just flout statutes that impede his agenda; he ignores and undermines court decisions, too (see, e.g., here, here, here, here, and here). He’s an equal-opportunity outlaw.
The political-question doctrine ensures that public-policy controversies are settled politically — ultimately at the ballot box. That is as it should be. Unlike the judiciary, Congress has real power to stop the president’s Obamacare malfeasance. Lawmakers need not content themselves with ineffectually declaring subsidies illegal; they can actually cut off the public funding that pays for the subsidies.
Senator Johnson claims that this constitutional response is unavailing because Democratic majority leader Harry Reid won’t allow such legislation to come to the floor. That, however, is a political problem, not a legal one. Reid is using the muscle that Senate rules give the majority. It is up to Republicans to do a competent job of spotlighting the subsidy scandal and forcing Reid’s hand. Johnson and Republicans have innumerable ways of gumming up the legislative works to retaliate for Reid’s obstinacy and put Democrats in the politically dicey position of defending Washington privilege. But legislative losers do not get to use the courthouse to refight their Capitol Hill defeats.
The sad truth is that GOP opposition to the subsidies is not as full-throated as it ought to be because the political class is benefitting from the subsidies. And one ruefully recalls that it was as much Republicans as Democrats who excoriated Cruz when he made a riveting case against the manifold depredations of Obamacare. The GOP has only itself to blame for its political impotence.
But the point is that Johnson and other lawmakers have real power to undermine Obama’s malfeasance. Judges have no such power. If a court orders the president to do something, and the president scoffs at the order, the court has no recourse and looks weak. Judges do not like to look weak. Nor should we want them to. Ordered liberty depends on the perceived legitimacy and finality of judicial rulings. That is why our system reserves those rulings for real disputes in which the judicial writ will actually be dispositive.
The political-question doctrine — like the related prohibition against issuing advisory opinions — relieves courts of the burden of intervening in legislative debates. When our system functions properly, public-policy questions are decided in the political process by elected officials who answer to the voters; the judicial power is reserved for real cases and controversies involving truly aggrieved people.
That limitation on court intervention is called the “standing” doctrine. It holds that there is no justiciable case unless the claimant has suffered a concrete injury resulting in quantifiable damages as the result of some alleged violation of the law. Senator Johnson seems to grasp that he has no case unless he establishes some such harm. At the end of his op-ed, he breezily rationalizes that he has standing because:
The OPM ruling forces me, as a member of Congress, to engage in activity that I believe violates the law. It also potentially alienates members of Congress from their constituents, since those constituents are witnessing members of Congress blatantly giving themselves and their staff special treatment.
This is fatuous. No one is accusing Johnson of violating the law, much less forcing him to violate it. The Obama administration has construed Obamacare to allow the subsidy. The construction may be invalid but no one will be sued or prosecuted by the Obama Justice Department for following it, and Johnson can decline the subsidy if he does not want it. The bit about alienated constituents, moreover, is just the kind of theoretical, speculative, incalculable claim of harm that the standing doctrine precludes from court adjudication.
If Senator Johnson is really worried about his constituents becoming alienated by congressional self-dealing and Obamacare’s lawlessness, he should be joining in, rather than lambasting, legislative efforts to defund the PPACA. He and his fellow Republicans should also be using their considerable privileges under Senate rules to block appointments and legislation until Senator Reid relents on his refusal to allow a vote on amendments to end the special subsidies for Congress — to say nothing of ending President Obama’s other lawlessness in the implementation of Obamacare. Republicans should be teeing the subsidy scandal up as a powerful 2014 campaign issue.
Those are proper uses of a lawmaker’s legislative power. The same cannot be said for clogging the courts with frivolous lawsuits.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.