Obama's ISIS Paralysis

Richard Epstein*

Richard Epstein

Richard Epstein

The recent events in Paris and elsewhere have led the leaders of the civilized world to search for an appropriate response to the barbaric actions of the Islamic State of Iraq and Syria. The toll of deaths, injuries, and property damage all point to a single conclusion: something powerful must be done, and done now. In spite of this, during an intense press conference in Turkey, President Obama doubled-down on his current strategy, despite the pushback from an ever-more skeptical press corps: “The equation,” Jerome Cartillier of AFP said, “has clearly changed. Isn't it time for your strategy to change?” The centerpiece of Obama’s flawed strategy is the refusal to commit American ground troops to more than a marginal role in seeking to drive ISIS from the extensive territories that it occupies in Syria and Iraq.

The President’s policy stems from an emphatic rejection of Pax Americana, or the view that the United States’ military force is the anchor of the free world’s security. Indeed, my own decidedly pessimistic appraisal of the dire consequences of Obama’s ISIS policy sadly underestimated the massive level of dislocation and violence that would follow from the President’s insistence that patience is required before an entity like ISIS is “ultimately” destroyed.

But what horrors must innocent people endure in the interim? How many more of them have to be slaughtered because of their religious beliefs? How many millions of refugees have to be driven from their homes to escape death and subjugation at the hands of ISIS? How many tens of millions of people in Europe, Africa, and the Middle East have to sit on tenterhooks not knowing where or when the next terrorist attack will take place? How long must Brussels stay under lockdown? Of these realities the President says not one word. His current aloofness cannot be defended to an international audience on the pious ground that the likelihood of an immediate terrorist attack on the United States seems to be low.

So what then should be done? At this point, the only reasonable response includes a military option. But, by the same token, the self-imposed restraint that the President places on the use of ground troops is likely to rule out any and all strategies that could take the fight to ISIS. Nor is there any reason to think that Hillary Clinton’s proposal of a no-fly zone would do much to curb ISIS. ISIS does not even have its own air force. The simple truth is that airpower cannot dislodge entrenched people on the ground. That point became painfully clear to the Israelis when, in March of 2002, they had to confront the reality of the Second Intifada. They did so by going door-to-door to root out the terrorists from their nests. There is no guarantee that this strategy can have the same effect in the larger and more complex regions of Iraq and Syria that are now under ISIS control. But the alternative approach of grinding them down slowly, over time through the air, gives them all too much leeway to further establish their own positions on the ground.

The President is reluctant to commit ground forces because of America’s troubled history of involvement in Iraq. The common argument there is that the United States made a foolish decision to invade Iraq with ground forces in 2003. The invasion, the argument goes, ultimately and inexorably led twelve years later to the current situation in Iraq. In the words of Peter Beinart, writing in The Atlantic, the Bush administration held the illusion that “it could shatter the Iraqi state and then quickly and cheaply construct a new one that was stable, liberal, democratic, and loyal to the United States.”

Yet the history of what happened is far more complex than this simple-minded indictment of the invasion suggests. We cannot assume that Iraq and the Middle East would have turned out any better, or into a bed of roses, if the United States had just held its hand. No one knows what the alternative history would have been with Saddam Hussein still in power and the United States on the sidelines. Nonetheless, given the endemic turmoil in that region, it is likely that the next dozen years would have been filled with their own unfortunate twists and turns, some of which could have required American military intervention later on, and perhaps even on less favorable terms.

More importantly, it is a mistake to attribute the current situation to the initial decision to invade, in light of all that followed. There is little doubt, for example, that the decision in 2004 to root out thousands of Baathists from government positions greatly contributed to the internal discord inside Iraq. Even at the time, it seemed that the more sensible strategy was to keep all but a handful of key Baathists in their government positions to avoid creating the resentment that fueled social and political unrest that reached epic proportions by 2006.

At this point, the history turns to a systematic evaluation of the surge that George W. Bush put into place in early 2007, headed by General David Petraeus, which ultimately brought 30,000 new troops to Iraq. At the time, many prominent political leaders, including then Senator Barack Obama, predicted that the surge would be a massive failure. At the time, Senator Obama said: “I am not persuaded that 20,000 additional troops in Iraq is going to solve the sectarian violence there. In fact, I think it will do the reverse.”

But his dire prediction proved false. In retrospect, it was clear that David Petraeus and his key staff organized, in the General’s own words, “a comprehensive strategy.” This strategy included taking the fight to the enemy, but required far more by way of coordination with local allied forces; it also required efforts to embed American troops in the local communities in which the violence was the greatest in order to reassure civilian populations that the United States was on their side. Beyond this, the United States had to walk the tightrope between warring factions of Sunnis and Shiites, and indeed Petraeus chose to bankroll many groups that had previously engaged in attacks against American military personnel and bases. It was a hard slog, but the violence and the casualty rates began to drop toward the end of 2007, and continued to decline throughout 2008, so that by the time President Obama took office in January 2009, many of the major blunders of the early war had been largely corrected.

But Beinart criticizes the surge. He claims that the positive outcomes occurred “fortuitously” because many Sunnis had turned against al-Qaeda’s senseless brutality. But Sunni leaders only had the option of turning against al-Qaeda precisely because they had someone in the form of Petraeus who could back them up with force and other forms of assistance. It is of course true that a meltdown took place once the United States failed to make the Iraqi “government more inclusive.” But the blame for that failure lies squarely on Obama’s shoulders. Even before he took office, his rhetoric was that of a tired loser heading for the exits, which meant that everyone knew that the United States was no longer able to broker, with both promises and threats, the endless tensions between the Shiites and Sunnis.

Obama’s position was always that the United States would back any unified government that emerged in Iraq. But that position got things exactly backwards, for the only way that the unified front could emerge was for Iraqis to believe that the United States would stay for as long as was needed, which would ensure enough stability existed so that the new government could succeed. It is far easier to keep a stable position stable, and thereby to pave the way, as Petraeus envisioned, for a slow drawing down of American troops, than it is to have to mount a major new assault against a hostile enemy from scratch. A proper completion of the initial Bush strategy would not have generated a Middle Eastern utopia, but it would have generated a more stable Iraq—which, in turn, could have blocked the ability of ISIS to conquer much of Iraq over the feeble resistance of the disorganized and demoralized Iraqi army.

There is a clear lesson to take away from the surge: the sustained use of force on the model of Petraeus is not, as Chicago Tribune columnist Steve Chapman claims, some “fantasy” that is necessarily doomed to fail. It is only doomed to fail if our indecisive President employs half measures to take down ISIS. In one sense, an attack on ISIS might prove easier than one on Saddam, who, after all, had all the prerogatives of a nation state. ISIS has no legitimacy in the territories that it controls, in sharp contrast, for example, to the Afghan tribal chiefs who enjoy fierce local support. A coordinated attack against ISIS modeled on the 2007 surge could probably start to have an immediate effect. Of course, it would not neutralize other attacks from outposts in other countries. But so long as those operations are taken from individual safe houses, it should be possible, as has happened in France, for local police and military units to root them out of their hiding places.

At this juncture, the President has to confront the painful reality that the overall security of Europe and the Middle East has declined precipitously since he took office. So too has the prestige and influence of the United States. Nonetheless, his current stand is at once defiant and delusional. He speaks of his “comprehensive strategy using all elements of our power—military, intelligence, economic, development, and the strength of our communities.” But the military component of this program has been about 8,000 airstrikes, which works out over the past 430 days to fewer than 20 sorties per day in a territory that is the size of the United Kingdom.

It is pointless for the President to speak about smallish territorial adjustments while ignoring the huge caches of military materiel at the disposal of ISIS, and its millions of dollars of oil revenue from the areas that it controls. It is also a mistake for him to think of humanitarian aid to the refugees as a viable long-term strategy, given that it imposes enormous financial, logistical, and security issues on the sagging economies of Europe and the Middle East. That situation will only get worse unless some strong steps are taken to stop the underlying violence causing the current flow of refugees. His weak leadership is generating major divisions in public sentiment as people are forced to grapple with the difficult trade-offs between compassion on the one hand and national safety on the other.

A president has to play the hand that he is dealt, and not wish that the world were a kinder place. President Obama cannot hope to win the struggle against ISIS with the long game when he is clearly losing the short game. There is no reason to think that the Paris disaster is the last one that will hit Europe, or that a similar attack could not strike the United States. The only way to ensure the security of America and its allies is to commit ground troops against ISIS in the Middle East. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Paris and Freedom

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The tragedy in Paris last Friday has regrettably been employed as a catalyst for renewed calls by governments in western Europe and even in the United States for more curtailment of personal liberties. Those who accept the trade of liberty for safety have argued in favor of less liberty. They want government to have more authority to intrude upon the daily lives of more innocent people. Their targets are the freedoms of speech and travel and the right to privacy. Their goal is public safety, but their thinking is flawed.

The clash between liberty and safety is as old as the republic itself. The United States was quite literally conceived in liberty. In the Declaration of Independence, Thomas Jefferson painstakingly listed the ills and evils of the British government’s administration of the Colonies. There were no complaints about the absence of public safety; rather, Jefferson’s “long train of abuses” cataloged the British government’s interference with the colonists’ personal liberties.

What has made the Declaration so enduring and unique in world history is its unambiguous embrace of the natural law as its explanation of the origin of our rights. The British king thought he reigned by the will of God -- the so-called divine right of kings.

Jefferson, influenced by the British philosopher and political theorist John Locke, turned that belief on its head. He argued that our liberties are natural, even inalienable, because they stem from our humanity, which is a gift from God. How could the same God have given us natural, inalienable personal freedoms and also have given the king the natural right to interfere with those freedoms?

The Declaration’s answer is the profound rejection of the moral legitimacy of any government that lacks the consent of the governed, and its articulation of the Judeo-Christian ethic of valuing human life, and its acceptance of the belief that humans possess inalienable rights “endowed by their Creator.”

Notwithstanding the values of the Declaration of Independence, big government and petty tyranny reared their ugly heads almost at the start of the republic. In 1798, the same generation -- in some cases the same human beings -- that wrote in the First Amendment that “Congress shall make no law … abridging the freedom of speech” also enacted the Alien and Sedition Acts, which punished speech critical of the government. Abraham Lincoln locked people up for speaking out against the Civil War. Woodrow Wilson locked people up for singing German beer hall songs during World War I. FDR locked people up just for being Japanese-Americans in World War II. All of this was later condemned by courts or Congresses -- and surely by enlightened public opinion.

It is in times of fear -- whether generated by outside forces or fomented by the government itself -- when we need to be most vigilant about our liberties. When people are afraid, it is human nature to accept the curtailment of liberties, whether it be speech or travel or privacy, if they become convinced that the curtailment will somehow keep them safe.

But if Jefferson and all the history and tradition of American cultural and legal thought have been correct, these liberties are natural rights, integral to all rational people. I can sacrifice my liberties, but I cannot sacrifice yours. Personal liberty is subject only to due process, not majoritarianism. Stated differently, we can only morally and legally and constitutionally lose our personal liberties when our personal behavior has been adjudicated as criminal by a jury after a fair trial; we can't lose them by a majority vote of our neighbors or our representatives in government or a presidential executive order.

Moreover, the Paris killings, the Fort Hood massacre, and the Boston Marathon killings are all examples of the counterintuitive argument that the loss of liberty does not bring about more safety. It does not. Rather, it gives folks the impression that the government is doing something -- anything -- to keep us safe. Because that impression is a false sense of security, it is dangerous; people tend to think they are secure when they are not. In fact, the government's reading everyone’s emails and listening to everyone’s telephone calls is making us less safe because a government intent on monitoring our every move suffers from data overload.

Because government is buried in too much data about too many folks, it loses sight of the moves of the bad guys. Add to this the historical phenomenon that liberty lost is rarely returned -- as a new generation accustomed to surveillance attains majority, surveillance seems the norm -- and you have a dangerous stew of tyranny. Just look at the Patriot Act, which permits federal agents to bypass the courts and write their own search warrants. It has had three sunsets since 2001, only to be re-enacted just prior to the onset of each -- and re-enacted for a longer period of time each time.

Since the Charlie Hebdo massacre in Paris in January, the police in France have been able legally to monitor anyone’s communications or movements without a warrant and without even any suspicion. Today they can break down any door and arrest whomever they please, and this past weekend, the French Cabinet declared that authorities can confiscate all firearms in Paris. All that gives law enforcement a false sense of omnipotence over the monsters.

Only good old-fashioned undercover work -- face to face with evil, what the professionals call human intelligence on the ground -- can focus law enforcement on the bad guys. And an armed citizenry strikes terror into the hearts of would-be killers and even stops them before they complete their horrific tasks. But don’t try telling that to the French government.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Spineless Leadership at Yale

Richard Epstein*

Richard Epstein

Richard Epstein

When Barack Obama was elected President in 2008, my many progressive friends frequently reassured me that his presidency would mark a transformation of race relations in the United States. That prediction has proved half true. Things have surely changed in the last seven years—but for the worse. Racial tension and discord has gone way up, resentments have increased, and the levels of violence, confrontation, incivility, and ill-will have risen, taking an immense toll on our political and social institutions. Throughout all of this turmoil, the President has largely remained aloof, even though strong leadership is urgently needed to stand up against the radicals attacking our social institutions.

Yet another example of how not to handle race relations came recently from Yale University, where I attended law school some fifty years ago in another period of national racial tension and unrest. The incidents surrounding the wearing of Halloween costumes at Yale has been well critiqued, but needs to be set into a larger perspective.

The incident began with an email from Yale’s Intercultural Affairs Committee, which advised students to be aware of the risk of “cultural appropriation and misrepresentation” by such acts as “wearing feathered headdresses, turbans, wearing ‘war paint’ or modifying skin tone or wearing blackface or redface.” The letter goes on to pay lip service to freedom of speech even as it decries these various forms of social insensitivity. A letter of this sort from an official body carries more than a hint of official disapproval of actions that do not toe the line.

That letter in turn provoked a thoughtful response from Erika Christakis, the associate master of Silliman College: “I wonder,” she wrote, “if we should reflect more transparently, as a community, on the consequences of an institutional (which is to say: bureaucratic and administrative) exercise of implied control over college students.” She goes on: “As a former preschool teacher, for example, it is hard for me to give credence to a claim that there is something objectionably ‘appropriative’ about a blonde-haired child’s wanting to be Mulan for a day. Pretend play is the foundation of most cognitive tasks, and it seems to me that we want to be in the business of encouraging the exercise of imagination, not constraining it.”

Her e-mail provoked a fierce reaction on campus by some students. At least one Yale student cursed out her husband, Professor Nicholas Christakis, the Master of Silliman College, for his wife’s temerity to challenge the received wisdom. Colleges, we are now told, are to be “safe spaces” for students who are keenly aware of “microaggressions” and other perceived slights against their personal identities. This, too, was the argument the Yale student bombastically made to Christakis. Students like her want universities to protect them from any unpleasant thought or idea that may upset them. They of course can lash out against others from their “safe spaces,” but everyone else must back-peddle or face the consequences.

This approach is ruinous to the intellectual and moral development of students, and leaves them ill-prepared for life’s challenges. If only on educational grounds, it is critical to rise up and challenge these students by insisting that the exchange of views, often hostile and disagreeable, is essential for the cultural and intellectual health of a university. It was just this position that my University of Chicago colleague, Professor Geoffrey Stone, took in his recent post on free speech at Mizzou and Yale, which cited the balanced and nuanced report of the University of Chicago’s Committee on Freedom of Expression. The report noted that “the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago.”

Unfortunately, Yale University President Peter Salovey does not share this belief in the importance of freedom of expression. In his message to the Yale community responding to the Christakis affair, he claimed that Yale had somehow failed and that “we must act to create at Yale greater inclusion, healing, mutual respect, and understanding.” Further, “Yale must be a place where each person is valued automatically, without having to demand or labor for that recognition.” So much for the idea that respect must be earned. At the end of his politically correct tribute to sensitivity and inclusion, Salovey tipped his hat to free speech, writing, “Our community also shares a commitment to free expression and an open exchange of ideas free from intimidation.” The “also” says it all.

There are two major problems with his announcement. The first has to do with the issue of freedom of speech. The second concerns the moral leadership needed in times of racial tension. It is clear that the First Amendment guarantee of the freedom of speech does not apply to Yale, which is a private institution. With respect to speech, Yale can adopt whatever rules it wants concerning the use of offensive and inappropriate language spoken on its campus. But its ostensible commitment to freedom of speech places sharp limitations on the restrictions that it ought to impose if it is to be true to its own ideals.

In a famous free speech case arising from the civil rights movement in Birmingham, Alabama in the 1960s, New York Times v. Sullivan, the late Justice William J. Brennan wrote that “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” And further, “the constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered.”

It is just that toughness of mind that should prevail at universities. New York Times v. Sullivan involved a defamation case brought by a public official against a media defendant, but the general notion that free speech involves the right to say remarks that others find deeply offensive is much engrained in the law. That impulse undergirds, for example, the constitutional protection afforded for the desecration of the American flag for political purposes. As Justice Brennan also wrote in the 1989 case of Texas v. Johnson, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

There is good logic behind this decision. Let us start from the willingness to accept the famous harm principle of John Stuart Mill: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” The soundness of that principle depends critically on its definition of harm. Thus that principle properly applies to any use or threat of force by one person against another, for to allow those kinds of behavior is to risk wholesale social disorder. It applies as well to the use of fraud in ordinary human affairs, which, if left unchecked, could undermine much voluntary cooperation. Guarding against these two forms of harm ensures that the state power is used to back improvements in social welfare. Thus, when the state gives either private remedies or public sanctions against these behaviors, the rectification of wrongs between two private parties is aligned with overall social welfare.

The key calculations turn radically when harm is said to include offense at what other people say and do. Now, two undesirable consequences unfold. First, people have a strong incentive to become indignant and outraged at activities and ideas that they do not like. Shrug off the offending thought, and you have no rights. Rise up in righteous wrath, and you can demand that the state intervene to vindicate your interests in domestic tranquility. Unfortunately, offense and outrage is a game that anyone can play; in the end, the proliferation of claims forces the state to do one of two things. Either honor them all, at which point we turn into a police state, or honor only some of those claims, at which point the government picks sides in the war of ideas.

The second great defect of the offense principle follows from its selective application. The term “microaggression” is relevant here. Now the need to ramp up indignation is tempered, for in its place some people can veto the actions and thoughts of others simply by announcing their own offense. But these same people will insist that the notion cannot be universalized, so once again the government gets involved in making the application of the law turn on the identity of the speaker—a content-rich standard that opens the door to political favoritism and abuse.

In response, it can and should be noted that the university is not the state, so it can have rules about decorum and civility that the state cannot impose. After all, students and faculty who do not like what is done can transfer. The point here is that intermediate institutions should have greater power to regulate speech and other forms of behavior on campus because their ultimate penalty is only expulsion, not tort liability or criminal sanctions. They are, moreover, limited by the knowledge that their internal excesses can cost them the respect and financial support of their key constituencies.

Unfortunately, universities can also lose their souls. It is here where the Salovey statement falls so short. At no point in his letter does he stand proud for Yale’s accomplishments in academic research and social life. At no point does he condemn students for heaping abuse on Christakis, whom Salovey should praise for his fortitude and judgment in the face of senseless provocation. And most regrettably, his words seem to signal his acceptance of the grave and groundless charge that Yale—Yale!—has somehow failed its students and is guilty of some insidious form of institutional racism.

As an alumnus of Yale, I want its president to resist with all of the words at his command the groundless charges brought against it by righteous students and commentators. But Salovey unfortunately lacks the courage to tell the critics that their indictment of the university is deeply flawed. By assuming a position of weakness, Yale is inviting its harshest critics, both inside and outside the school, to tee off against faculty and students with whom they disagree. The only way to get responsible discourse is to stand up for what you hold dear in the face of reckless charges. There is a desperate need for reconciliation at Yale, but the institution can only begin to heal if its critics face the same relentless scrutiny that they heap on the university.

Sadly, these issues go beyond Yale. There’s a similar story to tell about Ferguson. Though an official report of the Department of Justice fully exonerated officer Darren Wilson for his use of force against Michael Brown, the Obama administration issued a second report that excoriated the Ferguson Police Department on other matters, which obscured the central message of the first report. The problem at Yale and in the Obama administration is that our national and university leaders refuse to defend their institutions, even when those institutions have worked well. It takes years to build up public and private institutions of excellence. It takes shockingly little time to rip them down.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The President and the Rule of Law

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Earlier this week, a federal appeals court in New Orleans upheld an injunction issued by a federal district court in Texas against the federal government, thereby preventing it from implementing President Barack Obama’s executive orders on immigration. Critics had argued and two federal courts have now agreed that the orders effectively circumvented federal law and were essentially unconstitutional.

Though the injunction on its face restrains officials in the Department of Homeland Security, it is really a restraint on the president himself. Here is the back story.

President Obama has long wished to overhaul the nation’s immigration laws to make it easier for people who are here illegally to remain here and to make it easier for them eventually to acquire the attributes of citizenship. He may have a bighearted moral motivation, or he may have a partisan political motivation. I don’t know which it is, but his motivation has driven him to use extraconstitutional means to achieve his ends.

During his first term in office, he attempted to have federal laws changed -- quite properly at first -- by offering proposals to Congress, which it rejected. That rejection left in place a complex regulatory scheme that is partially administered by DHS and partially by the Department of Justice. It left about 11.3 million people unlawfully present in the United States.

The conscious decision of Congress not to change the law in the face of such a large number of undocumented people here left those people, adults and children, exposed to deportation. It also left them entitled to financial benefits paid for by the states in which they reside.

Deportation is a lengthy and expensive process. The courts have ruled that all people subject to deportation are entitled to a hearing, with counsel paid for by the government. If they lose, they are entitled to an appeal, with counsel paid for by the government. The government has teams of prosecutors, defense counsel and judges who address only deportations. The highest number of people the government has successfully deported in a year is about 250,000, which was done in 2013. If you add removals without trial (many are voluntary) and rejections at the border, the number swells to 438,000 a year.

While awaiting deportation, those people here unlawfully and not confined are entitled to the social safety net that states offer everyone else, as well as the direct benefits states make available to citizens, such as public schooling, access to hospital emergency rooms, and housing and personal living assistance.

Frustrated that Congress thwarted his will, President Obama -- resorting to his now infamous and probably regretted one-liner that he can govern by using a pen and a phone -- issued a series of executive orders in 2012 to various federal agencies, directing them to cease deportation of undocumented people if they complied with certain standards that the president wished of them. The standards, compliance with which would bar deportation, were essentially the same as those that the president had sought and Congress had rejected.

Can the president write his own laws or procedures?

In the litigation that came to a head early this week, 26 states, led by Texas, sued the federal government. In that lawsuit, the states argued that they would be made to endure unbearable financial burdens if the undocumented folks stayed where they are and if the states continued to make the same social safety net available to them as they make available to their lawful residents. Thus, the states argued, the president forced the states to spend money they hadn’t budgeted or collected to support a legal scheme that Congress had not only never authorized but expressly rejected.

Can the president write his own laws and procedures?

The states also argued in their lawsuit that if the DHS and DOJ complied with the president’s executive orders, those federal departments would be exceeding their authority under the statutes because the president was exceeding his authority. This is a president who has argued dozens of times in public that he is not a king and that he lacks the ability to recast the laws as he wishes they had been written.

Can the president write his own laws and procedures?

In a word: No. The president can issue executive orders to officials in the executive branch of government directing those officials to enforce the laws as the president wishes them to be enforced -- within the letter and spirit of those laws. But those executive orders cannot write new laws or revise old laws or ignore existing laws that the Congress clearly expects to be enforced. That is just what a federal district court judge ruled earlier this year and just what a federal appellate court ruled in affirming the district court earlier this week.

All people who embrace the rule of law -- whether they are for open borders or for an impenetrable border wall -- should embrace these rulings because they keep the president within the confines of the Constitution, which he has sworn to uphold.

Under our constitutional system of supposedly limited government, all legislative power is vested in Congress. The president enforces the laws; he doesn’t write them. His oath of office commits him to preserve, protect and defend the Constitution, and it further commits him to enforce the federal laws "faithfully" -- meaning whether he personally agrees with them or not.

The clash between the president and the courts is as old as our republic itself. Courts are traditionally loath to interfere with the business of Congress or the president. Yet when the behavior of another branch of government defies core constitutional norms, it is the duty of the courts in a case properly before them to say what the Constitution means and to order compliance with it.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Common Law in the Supreme Court

Richard Epstein*

Richard Epstein

Richard Epstein

Much of the Supreme Court’s work is devoted to interpreting statutes and regulations generated by the modern regulatory state. Increasingly, the common law tradition seems to be of little relevance to resolving the great disputes of our time. In my view, relegating common law principles to the back-bench constitutes a major source of confusion in the Supreme Court’s constitutional jurisprudence. The reason is that modern statutory law is heavily parasitic on the common law. A clear understanding of the uses and limits of common law principles is often the only way to see to the bottom of the well in many Supreme Court disputes.

The importance of common law is illustrated by Spokeo Inc. v. Robins, which was just argued before the Supreme Court. InSpokeo, the plaintiff sought to bring a class action suit on behalf of all individuals who had been injured by inaccurate reporting under the Fair Credit Reporting Act (FCRA), which attaches a fine between $100 and $1,000 for each offense. In the particular case, the plaintiff Thomas Robins had alleged that the defendant’s credit report had misstated the plaintiffs’ marital status, income, and educational levels in ways that made it more difficult for him to gain employment. The District Court held that the plaintiff did not have standing under Article III of the Constitution to maintain that claim on the ground that he did not allege that he had suffered “any actual or imminent harm” that could support the case. The Ninth Circuit found that such injury did exist, and the matter should be allowed to go forward. The Supreme Court took the case to address the following issue:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

Oral argument revealed much confusion about common law principles. Justice Sonia Sotomayor, for example, managed to mangle one thousand years of history by stating, “I mean most of the common law rights, like property rights are given to you by statute. They are not given to you by the common law.” Justice Kagan stated with undue confidence that “Congress is better than we are [in] identifying concrete harms,” thereby establishing the requisite standing under Article III. But the resources of the common law were on this point far deeper than Justice Kagan recognized.

The best way to unpack these mistakes is to begin with the common law of defamation. The standard definition of defamation is set out in § 559 of the Second Restatement of Torts, which reads:

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

The key to understanding how this definition works is to link its two clauses together. Standing alone, the notion of reputation is unduly abstract and appears not to be connected to what Justice Kagan called “harming people in real-world ways.” It was never thus at common law. The harm from defamation is made clear in the second prong of the Restatement definition: defamation is always directed to one or more third persons, and the source of the harm lies in their unwillingness to associate with the plaintiff once the false information was revealed to them.

Blackstone understood the point perfectly when he wrote in his Commentaries that slander, i.e. spoken defamation, “may endanger a man in law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust, an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen.” And the same principle applied with even greater force to written communications, where their effect is usually greater.

These principles apply in Spokeo. The defamatory words are clear, but their causal effect to the loss of some business or social opportunity still has to be demonstrated. In some cases, the plaintiff may do so by proving special damages, e.g., by naming the third person induced by specific false words not to offer a job to the plaintiff, not to vote for him in an election, nor to extend an invitation to join a club.

The traditional law of defamation also recognizes that in some cases it is not possible for the defamed person to identify the source of his business loss. In 1938, in Ellsworth v. Martindale-Hubbell Law Directory, the North Dakota Supreme Court allowed an attorney to sue for general damages when his legal ability had been misrepresented in Martindale-Hubbell, a major legal directory to which people looked in order to find lawyers in distant locations. The plaintiff could not identify the potential trading partners who declined to do business with him because of the errors in Martindale-Hubbell. Nonetheless, the North Dakota court said that potential clients could hardly be expected to call him out of the blue to say that they would not hire him. It therefore remanded the case to the trial court to give the plaintiff the opportunity to prove whether his decline in business income was attributable to the defendant’s publication of the false report.

Spokeo is therefore a modern variation on that ancient theme. The plaintiff believes that the false report has hurt him, and thus wants damages for that loss. However, he faces serious difficulties in showing that some harm actually occurred. It is very difficult to link up his failed job search with the entry errors. If tried, an astute defendant’s lawyer would list all sorts of independent reasons why the plaintiff came up dry. The examination would go through each failed job candidacy to try and pinpoint why the plaintiff was not chosen: bad interview, other strong candidates, bad fit for the job, and so on. The uphill climb is far steeper than in Ellsworth, where all action took place at a distance.

It is now possible to see how legislation might help fill the gap. The huge factual uncertainties may make it impossible to prove general damages at common law, but should they shut him out altogether? Against this backdrop, Congress does not need to identify concrete harms that elude common law judges. But it does have a decided institutional advantage in being able to come up with a statutory range of general damages precisely to overcome the shortfall. What the statute does is to liquidate in advance all uncertain claims of this sort. The plaintiff now needs to prove much less to make his case, but by the same token he receives much less in damages for that weakened claim.

At this point, the statutory scheme starts to make sense. Accordingly, the constitutional debate about standing now becomes a distraction. No longer is it necessary to moot the question of whether a bare statutory violation counts as a “concrete harm.” General damages at common law are meant to remedy a concrete harm. Nor does this issue pose any special difficulty under the standing requirement of Article III, which states that “The judicial power shall extend to all cases in law and equity.” Standing is nowhere mentioned in the text of Article III. So long therefore as general damages are allowed at law, the case is actionable at law, just as it would be in any state court. Whether class actions should be allowed is a separate question of judicial administration under the Federal Rules of Civil Procedure.

The moral is clear: It is not possible to keep common law conceptions out of modern statutory cases, nor is it desirable. Both the briefs and the oral argument in Spokeo show why it is important to get this right. Spokeo’s reply brief, for example, takes a confused, if extended, tour of common law principles to explain why concrete injury is suffered in other contexts, but not here. It notes that the concrete injury requirement was satisfied in an instructive case where the plaintiff was allowed to sue for assault when the defendant, who had been unable to get wine from the plaintiff’s tavern at night, struck at her with his hatchet, but did not touch her. That brief and the oral argument also made reference to the famous 1703 decision of Chief Justice Holt in Ashby v. White, where he famously declared that “the want of this privilege [of being barred from voting] occasions great loss and damage.”

The defendants also quoted Blackstone incorrectly for the proposition that “injurious effects” are needed to support an action. But his full sentence reads: “But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action”—in contradistinction to the situations for special damages, mentioned earlier in the same paragraph as set out in the passage quoted above.

Understanding common law principles is equally important in dealing with key constitutional cases as well. Thus, in the stolen valor case United States v. Alvarez, a divided Supreme Court held unconstitutional the Stolen Valor Act that imposed criminal sanctions against persons “falsely” claiming that they had received decorations and honors from the United States—including the Medal of Honor. The dangers presented by the false and knowing misrepresentation of credentials are parallel to those in defamation cases. It facilitates fraud against innocent parties, which, like general damages, is difficult to detect and prove in individual case. The same logic that allows a liquidated damage claim under the FCRA explains why criminal sanctions for these knowing wrongs make sense.

Speaking more generally, public remedies are needed to fill the gap when private rights of action for fraud do not function effectively.  Here, as in Spokeo, there are no short cuts to answering difficult questions of statutory or constitutional law. Like it or not, the common law is ubiquitous, and no lawyer or judge who deals with complex statutory and constitutional matters can afford not to master its principles.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Mistress of Deception

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The self-inflicted wounds of Hillary Rodham Clinton just keep manifesting themselves. She has two serious issues that have arisen in the past week; one is political and the other is legal. Both have deception at their root.

Her political problem is one of credibility. We know from her emails that she informed her daughter Chelsea and the then-prime minister of Egypt within 12 hours of the murder of the U.S. ambassador to Libya, J. Christopher Stevens, that he had been killed in Benghazi by al-Qaida. We know from the public record that the Obama administration’s narrative blamed the killings of the ambassador and his guards on an anonymous crowd’s spontaneous reaction to an anti-Muhammad video.

Over this past weekend we learned that her own embassy staff in Tripoli told her senior staff in Washington the day after the killings that the video was not an issue, and very few Libyans had seen it. We also know from her emails that the CIA informed her within 24 hours of the ambassador’s murder that it had been planned by al-Qaida 12 days before the actual killings.

Nevertheless, she persisted in blaming the video. When she received the bodies of Ambassador Stevens and his three bodyguards at Andrews Air Force base three days after their murders, she told the media and the families of the deceased assembled there that the four Americans had been killed by a spontaneous mob reacting to a cheap 15-minute anti-Muhammad video.

Clinton’s sordid behavior throughout this unhappy affair reveals a cavalier attitude about the truth and a ready willingness to deceive the public for short-term political gain. This might not harm her political aspirations with her base in the Democratic Party; but it will be a serious political problem for her with independent voters, without whose support she simply cannot be elected.

Yet, her name might not appear on any ballot in 2016.

That’s because, each time she addresses these issues -- her involvement in Benghazi and her emails -- her legal problems get worse. We already know that the FBI has been investigating her for espionage (the failure to secure state secrets), destruction of government property and obstruction of justice (wiping her computer server clean of governmental emails that were and are the property of the federal government), and perjury (lying to a federal judge about whether she returned all governmental emails to the State Department).

Now, she has added new potential perjury and misleading Congress issues because of her deceptive testimony to the House Benghazi committee. In 2011, when President Obama persuaded NATO to enact and enforce a no-fly zone over Libya, he sent American intelligence agents on the ground. Since they were not military and were not shooting at Libyan government forces, he could plausibly argue that he had not put “boots” on the ground. Clinton, however, decided that she could accelerate the departure of the Libyan strongman, Col. Moammar Gadhafi, by arming some of the Libyan rebel groups that were attempting to oppose him and thus helping them to shoot at government forces.

So, in violation of federal law and the U.N. arms embargo on Libya she authorized the shipment of American arms to Qatar, knowing they’d be passed off to Libyan rebels, some of whom were al-Qaida, a few of whom killed Ambassador Stevens using American-made weapons. When asked about this, she said she knew nothing of it. The emails underlying this are in the public domain. Clinton not only knew of the arms-to-Libyan-rebels deal, she authored and authorized it. She lied about this under oath.

After surveying the damage done to his regime and his family by NATO bombings, Col. Kaddafi made known his wish to negotiate a peaceful departure from Libya. When his wish was presented to Clinton, a source in the room with Clinton has revealed that she silently made the “off with his head” hand motion by moving her hand quickly across her neck. She could do that because she knew the rebels were well equipped with American arms with which to kill him. She didn’t care that many of the rebels were al-Qaida or that arming them was a felony. She lied about this under oath.

My Fox News colleagues Catherine Herridge and Pamela Browne have scrutinized Clinton’s testimony with respect to her friend and adviser Sidney Blumenthal. Recall that President Obama vetoed Clinton’s wish to hire him as her State Department senior adviser. So she had the Clinton Foundation pay him a greater salary than the State Department would have, and he became her silent de facto advisor.

They emailed each other hundreds of times during her tenure. He provided intelligence to her, which he obtained from a security company on the ground in Libya in which he had a financial interest. He advised her on how to present herself to the media. He even advocated the parameters of the Libyan no-fly zone and she acted upon his recommendations. Yet she told the committee he was “just a friend.” She was highly deceptive and criminally misleading about this under oath.

It is difficult to believe that the federal prosecutors and FBI agents investigating Clinton will not recommend that she be indicted. Inexplicably, she seems to have forgotten that they were monitoring what she said under oath to the Benghazi committee. By lying under oath, and by misleading Congress, she gave that team additional areas to investigate and on which to recommend indictments.

When those recommendations are made known, no ballot will bear her name.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Abortion and the Supreme Court

Richard Epstein*

Richard Epstein

Richard Epstein

The Supreme Court will soon decide whether to review two cases, both from the Fifth Circuit, that reach diametrically opposed conclusions about abortion. In Jackson Women’s Health Organization v. Currier, a panel of Fifth Circuit judges stopped Mississippi from enforcing a law that required all physicians performing abortions to have admitting privileges at a local hospital. In Whole Woman’s Health v. Cole, a different panel of Fifth Circuit judges refused to stop the enforcement of two key abortion restrictions in Texas law H.B.2. The first requires that the physician performing the abortion has admitting privileges to a hospital located within 30 miles of the place where the abortion was to be performed. The second provision requires that all abortion clinics comply with the applicable standards for ambulatory surgical centers.

The Mississippi legislation would have shut down the only abortion clinic in the state. The Texas legislation would shut down about three-fourths of the 40 abortion clinics within the state. The two cases are in obvious tension with each other.

The Supreme Court would do well to hear both cases, and to affirm the Mississippi decision in JWHO and overturn the Texas decision in WWO, so that all of the restrictions are struck down. That is evidently the position of those who support Roe v. Wade, which I criticized strongly in 1973, and about which I retain serious reservations today. In the current disputes, however, my qualms with Roe are water under the bridge. The only issue presented in these two new cases is whether either the Mississippi or Texas restrictions comport with the current legal test for examining statutory limitations as set out in the much mooted 1992 Supreme Court decision of Planned Parenthood v. Casey, whose basic rule reflects the deep ambivalence about the constitutional status of abortion. Casey provides that the regulation of a pre-viable abortion is constitutional if the law satisfies two conditions:

 (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.

It takes little imagination to see that this formulation is just asking for trouble. The first prong does not address the difficulties in having abortion rights turn on viability. Nor when it does so can it make up its mind whether “purpose or effect” matters, or both. Nor does it give any clear guidance as to how purpose should be decided when restrictions on abortion, such as the two laws raised here, are passed in the name of safety.

The second requirement tries to measure the fit between the means chosen and the purported end, so that “only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”

As is routinely the case with constitutional law, the outcome of the analysis under Casey will depend critically on the level of scrutiny that the court applies to the proposed legislation. Indeed, it was on just this question that JWHO and WWO parted company. In JWHO, the court took a close look at the potential impact of the regulation on the practices in question and found that the admitting privileges requirement did little to advance the safety of the procedures and much to shut down the availability of abortion care. The court was quite pointed that Mississippi could not deny the undue burden of its restrictions by showing that women could receive abortions from out-of-state providers, any of whom might change their own rules. They had to make sure that local clinics were available.

WWO took a very different approach. It first held that it was not the duty of the Court to “second guess legislative fact finding,” because “the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment.” At this point the actual size of the burden no longer matters. Under this standard, the state has wide discretion to decide what safety standards are necessary to guarantee that women getting abortions receive the highest standard of health care, wholly without regard for how much they were at risk of adverse health consequences under the prior legal regime.

And it is now permissible to note that the out-of-state alternatives available to women (no matter what their safety levels) insulate the law from attack. The WWO’s blistering petition for certiorari details the evidence that the District Court assembled showing that the Texas restrictions were far more likely to increase the risk of abortions notwithstanding the willingness of the Fifth Circuit to take at face value the claim that the “State truly intends that women only receive an abortion in facilities that can provide the highest quality of care and safety—the stated legitimate purpose of H.B.2.”

As a matter of simple constitutional interpretation, the rational basis test should not be allowed to eviscerate the painful compromises wrought in Casey. The commonly used test gives undue credit to legislative wisdom on this highly charged political issue. Indeed, the weaknesses of this lax standard of constitutional review are not confined to the abortion cases, but are universal in any case that applies this highly deferential standard. The term “conceivable” appears in no constitutional text anywhere, but too often is the death knell to any and all constitutional challenges.

Nonetheless, that word was invoked with telling effect in the 1984 decision in Hawaii Housing Authority v. Midkiff, as the Supreme Court held that “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” The upshot of that opinion was to uphold a transparent scheme whereby the lets tenants take their landlord’s interest in property by putting in advance into public escrow the dollars necessary to pay for the transferred property. That outright transfer was now magically justified as a way to combat the supposed “economic evils of a land oligopoly” which was in reality no economic oligopoly at all.

The Court’s deferential standard of review approach used in Midkiff was reflected in its evaluation of a trade secret case of Ruckelshaus v. Monsanto Codecided that same year. At first look, Ruckelshaus seems to have nothing to do with WWO because it only asked whether the United States could publicly disclose trade secret information about a pesticide that the company owned, when the owner supplied the information for the government’s evaluation of the product’s health and safety risks. Justice Harry Blackmun’s incoherent argument anticipated the Fifth Circuit’s argument in WWO, when he foolishly wrote that “Monsanto could decide to forgo registration in the United States and sell a pesticide only in foreign markets”—just as women could travel outside Texas to get an abortion.

Blackmun’s argument in Ruckelshaus was that the advance notice of the regulation left Monsanto choices for how to minimize its risk. True enough, but the residual risk is all too great. Quite simply, no firm is entitled to ask for state aid to force its competitor to divulge its secrets. The United States has a legitimate interest in making sure that products dangerous to health and safety do not reach the market, but it has no legitimate interest in upsetting the sound competitive balance that existed prior to the regulation. It is therefore not proper for the government to give Monsanto the unduly restrictive choice between registering with full release of its trade secrets or foregoing the U.S. market.

The basic point easily generalizes. It is always wholly improper for the government to defend its forced removal of choice A by pointing out that a private party may still choose between B and C. This position applies not only to cases involving economic liberties, but also to social issues of deep concern to the feminist and liberal groups rightly condemning WWO.

The point arises most clearly in connection with two sets of cases that arise under the First Amendment’s protection of the free exercise of religion, which is now under attack. Unlike the dubious constitutional pedigree of the right to an abortion, the free exercise clause gives explicit protection to religious liberty, subject only to the restraints that are properly imposed on all other forms of liberty, such as the use of force and fraud against outsiders. It therefore should be clear that neither the federal nor the state government should be allowed to impose an undue burden on religious freedoms

Most feminists and liberals are united in their deep hostility to the recent Supreme Court decision in Burwell v. Hobby Lobby, in which a bitterly divided court struck down the HHS mandate that would have required “closely held corporations [to] provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners.” Under the rational basis test adopted in WWO it is all too easy to give these owners the choice of going out of business, or of denying their employees all forms of health coverage, if they decide not to honor the mandate. After all, reproductive freedom is important to women’s participation in economic markets. But so long as alternative sources of contraception are available in competitive markets, a firm shouldn't be forced out of business for exercising its own religious beliefs. Rational basis is as inappropriate here as in WWO.

The same analysis applies to the aggressive efforts of various state civil rights commissions to subject small photographers and bakers to the hard choice between serving same-sex couples in ways inconsistent with their religious beliefs or going out of business. The undue burden of analysis that should have been applied in WWO works equally well here.

There is a constant temptation on the part of judges and scholars to avoid this conclusion by splitting the constitutional universe between those individual rights that merit serious protection and those that do not. One famous way of framing that distinction is to say that the higher protection is given to “discrete and insular minorities” who are unable to protect themselves in the political process. However, fundamentalist Christian groups surely are unable to protect themselves in states that have adopted strong civil rights laws. Nonetheless, the application of this test inspires people to do rhetorical handstands to announce themselves as politically vulnerable in order to gain an additional leg up in contentious constitutional adjudications.

The correct approach is to scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes. The need to increase judicial scrutiny when any test involving undue burdens is implicated is not confined to the abortion cases, but runs the full length of constitutional law. The Supreme Court should stop the charade in WWO, and do so in an opinion that rejects the rational basis test across the board.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Midwife to Chaos and Her Perjury

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The New York Times’ Maureen Dowd captured the moment last weekend when she referred to former Secretary of State Hillary Clinton as “the midwife to chaos” in Libya. Dowd apparently came to that conclusion after watching Clinton bobbing and weaving and admitting and denying as she was confronted with the partial record of her failures and obfuscations as secretary of state, particularly with respect to Libya.

The public record is fairly well-known. In March 2011, President Barack Obama declared war on Libya. He did this at the urging of Clinton, who wanted to overthrow Libyan strongman Col. Moammar Gadhafi so she could boast of having brought “democracy” to the region.

She and Obama conspired to do this even though former President George W. Bush and former British Prime Minister Tony Blair had publicly praised Gadhafi as an ally in the war against terrorist groups and even though the U.S. was giving the Gadhafi government more than $100 million a year in foreign aid.

Obama did his best to avoid constitutional norms. He deployed American intelligence agents on the ground, not troops, so he could plausibly deny he had put “boots” on the ground. He did not seek an American national consensus for war because Libya presented no threat whatsoever to the U.S. He did not obtain a congressional declaration of war as the Constitution requires because he couldn’t get one. And he did not seek United Nations permission, which is required to attack a fellow U.N. member.

He did obtain a U.N. embargo of the shipment of weapons into Libya, and he secured a NATO-enforced no-fly zone over portions of Libya. In order to enforce the no-fly zone, NATO sent jet fighters over the skies of Libya. The jets were guided and directed by American intelligence agents on the ground to bomb Libyan planes on the ground, which had been paid for by American taxpayers.

To pursue her goal of a “democratic” government there, Clinton, along with Obama and a dozen or so members of Congress from both houses and both political parties, decided she should break the law by permitting U.S. arms dealers to violate the U.N. arms embargo and arm Libyan rebels whom she hoped would one day run the new government. So she exercised her authority as secretary of state to authorize the shipment of American-made arms to Qatar, a country beholden to the Muslim Brotherhood and friendly to the Libyan rebels and a country the U.S. had no business arming -- unless the purpose of doing so was for the arms to be transferred to the rebels.

Once this plot was hatched, Clinton and her fellow conspirators realized that some of these rebel groups were manned by al-Qaida operatives; and selling or providing arms to them is a felony -- hence the reason for months' worth of missing and destroyed Clinton emails. How could someone running for president possibly justify providing material assistance to terrorist organizations in the present international climate?

Flash-forward to Clinton’s public testimony before the House Benghazi Committee last week. Clinton had three audiences to address. Her immediate audience was the committee, whose members generally did not know how to ask questions of a witness trying to hide the truth. Her second audience was the American people, who will recall little more than 15-second sound bites and general impressions of her testimony. Her third (unseen) audience consisted of the FBI agents and federal prosecutors who are investigating her.

That audience was looking for perjury, misleading statements and what federal law calls “bad acts.” Perjury is lying under oath. Misleading Congress is criminal and consists of testimony that employs deceptive language so as to create an untruthful impression. Bad acts constitute repeated behavior demonstrating moral turpitude -- usually a pattern of deception.

The FBI agents surely heard Clinton mislead Congress when she answered a hard question about arms going to rebels by saying “I think the answer is no” and again when she answered a question about arming private militias by saying it may have been considered but wasn't “seriously” considered. And they heard her directly commit perjury when she was asked whether she knew about our country's supplying arms to Libyan rebels directly or indirectly and she answered, “No.”

How could she answer "no"? She not only knew about the sending of arms to rebels but also personally authored and authorized it. How could she answer "no"? The FBI and CIA advised her -- in documents that are now public -- that U.S. arms were making their way to known al-Qaida operatives. How could she answer "no"? This reached a crisis point when some of those operatives used their American-made weapons to murder U.S. Ambassador Christopher Stevens at the U.S. Consulate in Benghazi.

Then the cover-up began. At the same time Clinton was telling her daughter and the Egyptian prime minister within hours of Stevens’ death that al-Qaida killed him and after the CIA told her the plot to kill Stevens had been hatched 12 days earlier, she told the public that Stevens was killed by spontaneous demonstrators angered about a cheap anti-Islam video, the producer of which she vowed to “get.” She later angrily dismissed questions over this cover-up by arguing, “What difference, at this point, does it make?”

The difference it makes goes to the heart of the American electoral process. Every four years, we entrust awesome power to a person who swears to protect the Constitution. How could we give that power to a consistent public liar who, for personal political gain, midwifed terror and chaos in a country that was our ally and whose words and behavior have continually demonstrated that she is utterly unworthy of belief?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Is Obamacare Sustainable?

Richard Epstein*

Richard Epstein

Richard Epstein

It has been over five years since the Patient Protection and Affordable Care Act (ACA) was passed into law on March 23, 2010. Today, the major legal challenges are over. In 2012, the Supreme Court sustained the power of Congress to enact the law inNFIB v. Sebelius. Three years later, it held that the ACA allowed for the payment of subsidies for all applicants who enrolled through either the state or federal exchanges. Chief Justice Roberts wrote both decisions. They will not be overturned.

But if the legal battle over Obamacare is over, the economic battle over Obamacare has just begun. The issue here is simple enough. Can the plan, which has weathered the legal challenges, survive in today’s highly dynamic economic market? The prospects are uncertain to say the least. Some clear signposts indicate the answer is no. The ACA cannot succeed simply by securing first-time enrollments in its exchanges. Insurance policies are subject to annual renewals. The first year of operations will give information about how the second year will go.

On the insurer side, it has proved unclear whether the premiums collected have been sufficient to cover the incurred losses. No one yet knows how the various new types of coverage required by the ACA will be priced going forward.  For plans now running a deficit, belts have to be tightened.

On the insured’s side, a year’s experience could lead many customers to think that they pay too much for benefits they would rather not have. The point is especially true of people who are both healthy and young, from whom Obamacare exacts a heavy cross-subsidy that they won't pay year after year. Market rate insurance will always contain differentials that reflect these risk differences.  Liberals may decry the supposed inequity, but in so doing they overlook the decisive advantage of market rate plans.  They are stable in ways that Obamacare is not, because customers will not leave plans from which they derive a net benefit unless they can get a better alternative.

These forces are now exerting tectonic pressures in many, but not all states.  Across the country, many insurance companies are increasing their rates between 25 and 35 percent as they adjust to the “shock waves set off by the Affordable Care Act” in the marketplace. But the full story is necessarily far more complicated because a lot more goes into providing an insurance policy than setting the annual premium. Equally critical are the rules on coverage, how high the deductibles and copays are, where the plan facilities are located, and what the options are in the choice of physicians. And, of course, there is the tantalizing question of whether the current round of increases are one-shot adjustments, or whether they represent the onset of a consistent trend that will replicate itself in future years?

Without detailed information, it is not possible to access the peculiarities of the individual plans. But it is possible to predict that the slow death of Obamacare has become more likely. Most obviously, any premium increases within the exchanges can lead potential and current enrollees to direct their healthcare dollars elsewhere, perhaps by doing without any insurance at all or by signing up for Medicaid. Ironically, it will be hard to win these defectors back with advertisement or improvements in plan coverage, because these options are tightly constrained by Obamacare, which by design limits competition only to the choice of various care levels. Ordinary markets allow for innovation on all dimensions of service, and thus have a resilience that is all too lacking in Obamacare.

Here are some instructive results. As of early June, some 1.5 million people dropped out of the exchanges by failing to pay premiums, reducing the number covered from a February 2014 high of 11.7 million enrollees to 10.2 million four months later. That figure was still a substantial increase over the 6.3 million people insured at the end of 2014. But in the next three months, the downward trend continued so that by September 2015, the number of enrollees tumbled to 9.9 million, which was still above the administration’s goal of having 9 million on the rolls by the end of this year. But the current negative trend line is all the more striking given that some 8.3 million subscribers receive a subsidy of about $270 per month, which works out to a program wide subsidy of about $224 billion per year.

At this point, most of the gain in coverage, about 71 percent of the total, has come through the expansion of Medicaid, which in general offers inferior care to that provided by private insurance carriers. The decline in enrollees on the exchanges represents a displacement of ordinary people from insurance plans that they chose for those which come with a government stamp of approval.

The second straw in the wind is the looming failure of the private co-op plans that were intended in 2010 to offer some stiff competition to the commercial healthcare plans that were otherwise expected to dominate the overall system. The most recent casualty—the ninth to date out of a total of 23—has been Tennessee’s Community Health Care Alliance, with some 27,000 subscribers now forced once again to find coverage in order to stave off payment under the Obamacare individual mandate. Most, if not all, of the remaining 14 plans are also likely to go belly up.

The recent pattern of events raises two questions. First, how did we get here? Second, where do we go next?

The difficulties in the healthcare exchanges can be traced back to the original design choices of Obamacare. Its fundamental conceit was that a federal program could allow for the delivery of higher quality care at lower cost than could be obtained from ordinary private health insurance carriers. To make good on that claim, the centerpiece of the ACA was its benefits package, which offered a list of ten essential benefits covering ambulatory, emergency, laboratory, pediatric, preventive and wellness services, maternal and newborn care, mental health and substance abuse disorder, prescription drugs, rehabilitative and habilitative services, and devices. Some of these items, like mental health coverage, are exceedingly hard to provide because of the difficulty of measuring and monitoring diagnosis and cure. Others, like habilitative services, were rarely if ever offered in the voluntary market.

It is, however, one thing to prepare a list of services. It is quite another thing to specify the level and types of care required in each of the separate categories. Today, officials at the Department of Health and Human Services who have no bottom-line responsibility make those choices. Their tendency is to aim for the moon by requiring coverage that private firms would never offer voluntarily. After all, private firms respond to adverse selection, whereby people who are in greatest need of coverage will flock to the richest plans. They are also attempting to control moral hazard, which implies that the availability of insurance increases the likelihood of the occurrence of the insured event. The government takes it as an article of faith that private plans are inefficient. But that unfortunate mindset leads to additional government oversight. The upshot is reduced business flexibility coupled with an additional layer of administrative costs.

In principle, the burdens could become lighter over time as firms learn how to adjust to the government programs. But if the government continues to push hard, that won’t happen. It is therefore disheartening to know that Obama’s response to the high premiums is the following: “If commissioners do their job and actively review rates, my expectation is that they’ll come in significantly lower than what’s being requested.” Idle talk like that from a ratemaking amateur will only aggravate the problem. It is precisely the risk of insufficient rate hikes that undermines the stable healthcare environment needed for these markets to work. The only way in which to reverse these pressures is to go for partial deregulation.

The only difficulty with a proposal for market liberalization is that it cannot happen in an Obama administration. Given its inflexible commitment to high government involvement in the healthcare market, the likely response of the Obama administration to its own failure is to renew its call for a single-payer plan that the less radical Democrats of 2010 were not prepared to endorse. But the utter decimation of the centrist bloc of the Democrats in Congress means that the new claim will be that the exchanges and co-ops failed because they did not go far enough. Sadly, however, any single-payer plan will fall prey to all the pathologies of over-ambition, given that monopoly government agencies cannot manage complex businesses that have frustrated the implementation of the more modest Obamacare plan.

In the absence of any meaningful market role for private healthcare insurers, it will be no longer possible to benchmark public norms to sensible standards of private behavior. But on this issue, progressives believe in the one-way ratchet: When markets fail, turn to government regulation. When government regulation fails, turn to more government regulation.

In the midst of this chaos, the fundamental truth about the superiority of competitive markets is effectively shielded from view. Markets work because they match supply with demand. Consumers vote with their feet and their wallets. They fully know that there is never a perfect balance between the amount paid and the package of benefits secured. But they also know, or at least intuit, that relevant trade-offs between price and quality of service—whether in the choice of doctors, locations, coverage, or deductibles—must be made at the margin. Governments are tone deaf to marginal adjustments.

There is, however, this ray of hope: The high level of deductibles and the reduced level of coverage could help stronger market institutions emerge from the ashes of today’s government failures. As mandated health plans start to crash, people will be left to their own devices in the marketplace. Some will opt for concierge care, whereby they cut out the government middleman and pay a direct monthly fee to doctors for the privilege of having direct personal relations. As with all such models, as the usage increases, the price starts to drop to the point where it could easily make sense to avoid government plans altogether.

And if that does not work in all cases, there are all sorts of new walk-in clinics like City MD that offer cheap and efficient healthcare with plans that anyone can understand: “Need A Doctor? Just Walk In. No Waiting & Open 365 Days A Year. Over 40 Locations. No Appointment Needed. See A Doctor Immediately.”

Back in 2010 no one thought that healthcare markets were perfect. But we took the wrong fork in the road. Instead of opting for systematic deregulation in healthcare and insurance markets, we opted for cradle-to-grave regulation. We need to have the courage to recognize and correct that mistake now.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Questions for Hillary Clinton

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

At long last, Hillary Clinton testifies on the 2012 terrorist attacks in Benghazi, Libya, and her emails as secretary of state. Here are some suggested questions. Although these suggestions are based on the public record, we need to assume that the members of the House Benghazi Committee have seen far more than the public has. I have framed the questions in traditional cross-examination style, though I doubt that the politicians on the committee will have the self-discipline to adhere to it.

The theory of cross-examination -- particularly of a high-profile, intelligent, belligerent or ruthless witness -- is for the questioner to tell a story by asking questions that suggest answers that challenge the witness’s version of events or impeach the witness’s credibility. The questioner’s version of events must be based on credible evidence. In a courtroom, the questioner’s audience for his version of the events is the jury. In a congressional hearing, the audience is the American people.

I have publicly advised members of Congress that they should not ask any questions of Clinton; instead, they should have a prominent attorney who is her equal in intellect and knowledge of the law yet is a fierce, experienced cross-examiner do so. But the lure of TV cameras will probably cause the committee members to reject my advice. As well, some of the committee members are lawyers, and the committee's chairman, Rep. Trey Gowdy, is a former federal prosecutor.

Anyway, here goes…

Mrs. Clinton, when you first became secretary of state, you were briefed on the proper use of emails, right? And you were informed of your obligation to preserve all governmental records that came into your possession and not destroy any of them, right? And you also were briefed on the proper handling of classified materials, weren’t you? In fact, Mrs. Clinton, you were presented with a written government oath that every federal employee who handles classified materials receives and must sign, correct? Isn’t it also true, Mrs. Clinton, that you never signed that oath?

Didn’t you pay a State Department employee -- not an outside vendor -- to install a private email server in your home in New York? And when you did that, you knew the practical effect of it would be to divert all your emails -- governmental and personal -- away from the government, right? And you used, did you not, that email system your employee in the State Department installed in your home as your exclusive email source during your tenure as secretary of state? And that email system was directly connected to the Internet, right?

Isn’t it true that you received and sent emails on your personal system that included satellite photos of foreign surveillance; intercepts of telephonic and email communications of foreign agents; travel plans of U.S. Ambassador to Libya Christopher Stevens, who was killed in the Benghazi attacks; and the true name of a CIA agent operating under deep cover in the Middle East?

Isn’t it true that you were probably too busy to read all the emails you received before storing them or sending them on to others? Isn’t it true that you treated all emails alike, whether they contained delicate or personal information or not?

Mrs. Clinton, haven’t you stated a few dozen times that you never sent or received emails marked “classified”? Now, Mrs. Clinton, you were the country’s chief diplomat for four years, right? Don’t you know that nothing is marked “classified” -- that the national security markings are “confidential,” “secret” and “top secret”?

Mrs. Clinton, isn’t it true that you asked President Obama to let you hire your friend and colleague Sidney Blumenthal as a special assistant to you in the State Department? Isn’t it true that the president declined your request? Didn’t you then have your family’s foundation hire Mr. Blumenthal, and didn’t you then treat him as your assistant without telling the president?

Mrs. Clinton, didn’t you communicate with Mr. Blumenthal about political and national security matters on a regular and consistent and often-daily basis? Didn’t he provide you with confidential information from his own sources? Didn’t you pass confidential information on to him?

Mrs. Clinton, you knew that the war you were waging against Moammar Gadhafi was causing great instability in Libya, right? And you knew that instability had led to the need for private security firms to protect Libyans and Americans in Libya, correct? And didn't you also know that your friend and confidant Mr. Blumenthal had a financial interest in one of those firms while he was advising you? You didn’t see anything illegal about an employee of your family's foundation's receiving secret data from you while he was advising you and trying to get business for his security firm in Libya, did you?

Mrs. Clinton, isn’t it true that you put the travel plans of Ambassador Stevens onto nongovernmental Internet venues? Isn’t it true that at the time you did that, he asked you for more security in Libya and you did not provide it? Mrs. Clinton, isn’t it true that to fight your secret war against the government of Gadhafi, you sent American arms into the hands of his opponents? And you did this without a congressional declaration of war, right?

Didn’t you know that many of Gadhafi’s opponents were al-Qaida operatives, who are America’s sworn enemies? Weren’t you reckless in getting arms to them? Didn’t you realize that you were arming the very people against whom your ambassador was seeking more protection?

Mrs. Clinton, do you know it is a felony to provide arms to terrorist organizations? Do you know that Ambassador Stevens was murdered by al-Qaida operatives using American arms and American bullets?

Mrs. Clinton, do you think anyone but the most hardened Democrats and your husband’s old friends could trust you in public office?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.