Andrew C. McCarthy's Blog, page 23

'Social Darwinism'

After hearing President Obama's hilarious diatribe against the Ryan budget -- a timid document that adds trillions to the deficit, takes a generation to bring the federal budget into balance, and makes zero effort to cancel out the innumerable departments, agencies, and programs that have exploded the federal micromanagement of American life -- I have a question for the community-organizer-in-chief.

In light of his froth over this Ryanesque scourge of "Social Darwinism," does the president favor repealing the laws that prohibit Americans from feeding the animals at the national parks that Obama risibly accuses Representative Ryan of trying to shut down?

You've probably seen the signs -- they befoul the scenery throughout the Grand Canyon, Acadia, Yellowstone, the Everglades, Yosemite, etc. No food for the fauna. The Darwinists at the U.S. Park Service claim that animals must learn to fend for themselves if they are to survive and thrive. When you feed animals, the bureaucrats coldly explain, they become dependents and no longer function as nature intends. They lose their capacity to make their own way. They fill up on foods that are harmful to their digestive systems. There is a dulling of the instincts that help wildlife avoid danger -- they lose the fear of humans and cars, leading many of them to be killed while expecting to find food on the roadside. Some signs are downright mean in admonishing: "A fed animal is a dead animal." 

Mr. President, where is the empathy?

Statism Goes to Court

‘Well, I can’t imagine that that -- that the Commerce Clause would -- would forbid Congress from taking into account this deeply embedded social norm.”

This was Solicitor General Donald Verrilli on Day Two of the great Obamacare case. At issue was Affordable Care Act’s most controversial aspect: the “individual mandate” -- the requirement that Americans purchase health insurance as a condition of living in their country. The SG was being pummeled by Justice Antonin Scalia.

Pummeling was the order of the day for Verrilli. From the moment he rose to deliver the most important argument of his professional life, he seemed tongue-tied; he could barely get through “May it please the Court” without sputtering. It is hard, even for a lawyer as fine as Verrilli, to defend the indefensible. Yet, as he argued with Scalia, the SG grabbed on to a hidden truth: He and his fellow progressives are already way, way ahead. They may not win this skirmish over the individual mandate. But there is the battle, and then there is the war. For statism, the war is still going very well.

#ad#The “deeply embedded social norm” to which the SG referred was another government mandate: The 1986 law demanding that hospitals, without compensation, treat emergency patients who lack insurance or the capacity to pay. It was a telling moment: The hullaballoo over the individual mandate is a case of noticing the barn door open about a quarter-century after the horse has galloped away.

So who are “the uninsured”? They sort into two categories, alternatively emphasized, depending on what the Left is trying to accomplish that day. If the aim is to achieve “social justice” (i.e., the redistribution of wealth from the producers to the takers), they are “the poor.” If the aim is to manufacture social injustice, they are the “free riders” -- “free,” once our coveted condition, is now an epithet. The “free riders” rationally choose not to insure themselves, figuring that they are young, healthy, not likely to need much medical attention, and able to get treatment in the event of an emergency.

There are no free lunches, though. The central planners want to co-opt the aged and the poor, but they cannot afford to seduce them with “free” health care unless they soak the free riders. Meantime, hospitals cannot afford to treat and bear the malpractice risks of non-paying patients unless they recoup by over-charging the paying customers. Since people generally pay by insurance, this drives up the private insurers’ costs. That, in turn, drives up the costs of premiums, which responsible people choose to pay in order to insure themselves against the skyrocketing prices bred by this vicious cycle of coercion.

Thus, Verrilli contended, Congress can force free riders either to buy government-approved insurance or to pony up a government-dictated fine. As he put it, you must “pay for what you get” because you are “getting the health care service anyway as a result of the social norms#...#to which we’ve obligated ourselves so that people get health care.”

Well, no, Justice Scalia countered. There’s a much easier answer: “Don’t obligate yourself” in the first place. After all, if you didn’t coerce the hospitals and the insurers, you wouldn’t need to coerce the citizens.

Heaven forefend! Why, government coercion is the beating heart of our “free” society. It is -- all together now -- a “deeply embedded social norm.”

#page#In the abstract, Verrilli’s case on the individual mandate is specious. The Commerce Clause empowers Congress to regulate interstate commerce that free people choose to engage in. It does not authorize Congress to create commerce by compulsion, to coerce Americans into engaging in individual commercial transactions that -- thanks to New Deal alchemy -- are feverishly imagined to jolt interstate markets, activating the hair-trigger of federal regulation. This is why the SG labored mightily to claim that the mandate does not so much fabricate new commerce as regulate ongoing commerce. Bootstrapping mandates to mandates, Verrilli theorized that we are all in the health-care market already, whether we realize it or not, because accident or disease could strike at any moment -- and when it does the “free” emergency room is here for us.

Still, we don’t live in abstractions. Ours is a landscape of statist excess, enabled by 80 years of Supreme Court jurisprudence. Verrilli was thus at his strongest talking not about the Commerce Clause per se but about its unrecognizable remains. Just look at the “reforms” already enacted, the SG urged: not just the mandate that hospitals must treat ER patients but mandates that force insurers to cover people despite “preexisting conditions” and mandates that “require ‘guaranteed issue’ and ‘community rating’” -- euphemisms for prohibitions that bar insurers, when setting premiums, from accounting for factors, such as age, sex, and health status, that common sense says are highly significant to the risk being assumed.

#ad#Then Verrilli dropped the hammer: For all their caterwauling about the individual mandate, the states that brought the Obamacare suit did not, and do not, dispute Congress’s Commerce Clause power to impose these other long-established health-care “reforms.”

The premise of the states’ challenge to Obamacare is that, in taking direct aim on the whole citizenry, the individual mandate crosses a new threshold. The claim is not without merit, and it seemed to resonate with several of the justices. Addressing Verrilli, Justice Anthony Kennedy, the presumptive swing vote, admonished, “You are changing the relation of the individual to the government in#...#a unique way.”

But how unique, really, is the Obamacare mandate? Assuming we are still a free society, of course it is offensive for government to coerce citizens into buying health insurance. But is it not equally offensive for government to coerce private hospitals to treat patients for free? For government to coerce private insurers regarding whom they must cover and what they must cover them for? To dictate that, in making these determinations and calculating their risks, insurers must ignore palpably pertinent information? In the law, a contract is a voluntary bargain. What we’ve tolerated for a very long time, however, are adhesive arrangements of involuntary servitude. The law’s usual word for that is extortion.

And health-care extortion, by the way, is not Obama’s doing. It is our longstanding, bipartisan, Big Government condition. To take just one example, here is an excerpt from the vaunted “Pledge to America” that House Republican leaders touted during the 2010 campaign:

Ensure Access For Patients With Pre-Existing Conditions: Health care should be accessible for all, regardless of pre-existing conditions or past illnesses. We will expand state high-risk pools, reinsurance programs and reduce the cost of coverage. We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition, eliminate annual and lifetime spending caps, and prevent insurers from dropping your coverage just because you get sick. We will incentivize states to develop innovative programs that lower premiums and reduce the number of uninsured Americans.

No, President Obama did not invent this stuff. He is simply fast-forwarding to the next logical steps.

Health care, like most things, should not be a federal concern at all. If people at the state or local level think everyone should be entitled to emergency medical care, that’s fine -- they ought to raise taxes and pay the hospitals to provide it. If they think sick or high-risk patients who can’t get affordable private medical insurance ought to have their treatment paid for nonetheless, they ought to raise taxes to pay for that, too. It is great to be noble, but it’s not noble to throw around other people’s money. Your choices ought to be your costs. And that goes for insurance-company executives, too: If they take premium payments, then fraudulently wriggle out of the consequent obligations, they ought to be prosecuted, sued for damages, and put out of business. The state’s legitimate role is limited, but it is essential.

That is how a sensible, private, cost-effective system would work. To the contrary, the ruling class of both parties embraces a central planning scheme of “deeply imbedded social norms”: Politician A and lobbyist B get together to decide what service-provider C is going to be forced to do for interest group D. Adam Smith, Frederick von Hayek, and Milton Friedman told us why this never works, but by now we should know from our own experience. Coercion begets coercion: If you’re going to force the hospitals, then you have to force the insurers; if you’re going to force the insurers, then you have to force the citizens.

Donald Verrilli had a tough go of it at the high court this week. The individual mandate may be on the ropes, as, perhaps, is the whole 2,700-page Obamacare monstrosity -- although I wouldn’t bet on it. But if we were in the wagering business, what do you figure is more likely: The statists regroup and put us on a surer legal path to a “single-payer” system of socialized medicine; or Republicans seize the moment, roll back more noxious federal mandates, and forge a path back to free-market health care? I’m not sure how solicitor general Verrilli will grade out come Judgment Day in early July, but, alas, I like his team’s chances over the long haul.

— Andrew C. McCarthy is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

What Conservative Judicial Revolution?

Sorry to be out of pocket, folks: I'm in Book-Writing Hell for next few weeks.

Meanwhile, read John Yoo in the WSJ today -- I'm with John, which is always a good place to be.

Don't Stay the Course

He couldn’t name a single one.

In this tense campaign season, al-Qaeda is very much in the front of the Obama administration’s mind. In fact, administration officials can’t remind you often enough that Barack rubbed out Osama -- which you may see as a no-brainer, but which, to hear them tell it, was actually the greatest single act of executive courage in half a millennium. Yet, when ABC’s Jake Tapper recently asked White House press secretary Jay Carney, “When’s the last time U.S. troops in Afghanistan killed anybody associated with al-Qaeda?” Obama’s mouthpiece went mum.

This was not a concession that the Afghan mission is pointless. It was a powerful indication that the Afghan mission has already been accomplished.

#ad#The Carney-Tapper exchange was worth bearing in mind while perusing the fanciful op-ed published in the Washington Post this week by Senators John McCain, Joe Lieberman, and Lindsey Graham. The senators insist that we must stay the course in Afghanistan.

In advertising, the disclaimer always warns that “past performance does not guarantee future results.” From the senators’ perspective, let’s hope that’s true. Their last memorable joint op-ed, about how we could not allow Moammar Qaddafi “to consolidate his grip” on Libya, came hot on the heels of their joint support for U.S. aid that helped Qaddafi consolidate his grip on Libya. On that past performance, we’d expect to find the senators regaling us a year from now with another op-ed about how we suddenly need to “drop a bomb” on today’s favorite flavor, Hamid Karzai.

In Afghanistan, there are presently about 99,000 U.S. troops, the lion’s share of a 130,000-strong NATO contingent. Senators McCain, Lieberman, and Graham worry, for good reason, that American tolerance for that state of affairs has been exhausted by a series of atrocities that demonstrates Afghan contempt for the West. The senators gingerly describe these incidents as “examples of the few Afghan soldiers who despicably turned their weapons on Americans.”

Sorry, gentlemen: Quite apart from the murderous riots over accidental Koran burnings, American and coalition forces are the targets of an unrelenting assassination campaign by Afghan security forces. Michael Yon puts the number at 200 coalition members killed in nearly 50 documented incidents. That, moreover, does not count Mohammed Merah, the self-proclaimed al-Qaeda jihadist who killed seven people in Toulouse this week -- after being sent back to France by U.S. forces who captured him in Afghanistan, where he’d naturally gone to hone his craft.

This is to be expected. Afghan “security” forces are rife with jihadists. Not just Taliban sympathizers, either: This is a fundamentalist-Islamic country, and its military and police would teem with Islamists even if there were no Taliban.

And about those security forces: The senators claim that “hundreds of thousands of Afghans fight every day as our faithful allies in a common battle against al-Qaeda and the Taliban.” The inference is that you need to put the deadly sabotage against our troops in perspective, but it is the senators who have lost theirs.

There are only about 170,000 soldiers in the whole Afghan army -- not “hundreds of thousands.” Even if you inflate their numbers by throwing in about 130,000 Afghan police, the picture the senators paint of hordes of “Afghan patriots” is hyperbole -- especially when their performance is factored in. The security forces are said to be somewhat better than they once were, but drug use, absenteeism, and corruption are notoriously rampant -- as is infiltration by Taliban and Haqqani forces, as well as a disturbing propensity to sell their weapons to the highest bidder when not pointing them at American soldiers. To mention the Afghans in the same sentence as our troops is absurd.

#page#It is also part and parcel of a preposterous narrative. To listen to the senators is to think everything was just as placid as could be in and around the Hindu Kush until the Taliban came along, put out the welcome mat for al-Qaeda, and sent Afghanistan spiraling into civil war.

To the contrary, al-Qaeda was born in Afghanistan, during the pre-Taliban jihad against the Soviets. The nascent terrorist organization was nourished by powerful warlords like Gilbuddin Hekmatyar, who later became Afghan prime minister. Though a virulently anti-American Islamist, Hekmatyar got a sizable chunk of the $3 billion lavished on the mujahideen by the CIA (through our cut-out, the treacherous Pakistani intelligence service). Simultaneously, the Saudis matched that largesse, dollar-for-dollar, bankrolling up-and-comers like Osama bin Laden, who were summoning Muslims the world over to join the jihad.

#ad#When the humiliated Russians pulled out in 1989, so did the covert American operatives. What followed was years of anarchic, internecine barbarism -- the default Afghan condition. The Taliban did not cause this infighting; they arose from it, in 1994. They are Islamic fundamentalists who prevailed because then, as now, they had very strong support, particularly among the dominant Pashtuns. They were also acclaimed by such widely respected figures as the Karzai family. “They were my buddies,” war correspondent Steve Coll recounts Hamid Karzai saying of the Taliban’s leaders. “They were good people.”

This is what Afghanistan is. We probably could not change that if we stuck around for a thankless century. That is not going to happen. According to Carney, President Obama thinks the “original objective” of our mission “should not have been to build a Jeffersonian democracy in Afghanistan” -- and since Obama is not exactly a fan of Jeffersonian democracy in America, I’m willing to take him at his word on that one. The mission in 2001 was to defeat al-Qaeda after we were attacked.

We did that. Carney was unable to say when we last killed an al-Qaeda operative in Afghanistan -- a problem he would not have with, say, Yemen, where without a single American soldier on the ground we’ve killed dozens in just the last few weeks. Furthermore, Obama’s spokesman did not dispute the assessment from two years ago by then–CIA director (and now defense secretary) Leon Panetta, that in all of Afghanistan, there are fewer than a hundred al-Qaeda operatives.

The senatorial trio talks about “our common [with the Afghans] battle against al-Qaeda and the Taliban.” The administration, however, tells us al-Qaeda is gone and, “critically,” that “the Taliban is not per se our enemy,” to quote Vice President Joe Biden’s remarks (later reaffirmed by Carney on Obama’s behalf). No one is trying to vanquish the Taliban -- our government’s modest goal is now a negotiated settlement in which the Taliban are reconciled with their erstwhile “buddy,” Karzai.

Even if the Taliban were our enemy, the strength of its militant forces is pegged at 20,000. The Taliban punches above its weight because it is sponsored by elements of the Pakistani government, and because a sizable percentage of Afghans either like the Taliban or are cowed by it. The latter problem is a function of the contempt bred in the population by increasing familiarity with Karzai. But it has also been exacerbated by the continuing presence of U.S. troops. Non-Muslim occupying forces are anathema under sharia -- the Islamic law that the Taliban exemplifies and that rules Afghanistan, no small thanks to the new constitution the State Department helped write.

#page#I’m confident that even the State Department, clueless as it can be, did not want a sharia constitution for Afghanistan. They abided one, just as they did in Iraq, because Islam -- a word the senators do not mention in their thousand-word op-ed -- is the central fact of Afghan life. The people would have accepted nothing less.

Is it any wonder that Islamists are vastly more popular than we are in Afghanistan? That is not going to change -- which is why the Afghan army’s 9:1 numerical advantage over Taliban forces, even compounded by 130,000 coalition troops and another 130,000 Afghan national police, is unable to win the day, despite the prohibitively costly decade our troops have spent struggling to train them.

#ad#Before or after American forces leave, the Taliban -- whether by negotiated settlement or brute force -- may take over the country. Or, more likely, the Afghan civil war, which neither we nor the Taliban started, will simply continue. The Taliban and Haqqani will go on vying with Karzai’s regime, Hekmatyar’s Hizb-e-Islami, and the rest of Afghanistan’s motley assortment of warlords and tribal rivals.

We do not need the Taliban to lose. We need those factions that capture territory to be deeply discouraged from inviting al-Qaeda to return, set up shop, and launch attacks against the United States. The senators are wrong to insist that this requires a continuing, weighty presence of American forces in a hostile place. We currently face this same challenge in several Islamic countries absent occupation by thousands of ground troops.

Can it really be that the United States -- which with no ground forces helped defeat the Soviet empire in Afghanistan, and which with only 5,200 troops routed al-Qaeda there a decade ago -- needs to have tens of thousands of forces in-country in order to intimidate a non-enemy into stiffing an enemy that has disappeared?

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

French Teacher Holds Moment of Silence to Honor Mohammed Merah

It's only fair, right? Cycle of violence and all that. Moment of silence was being held throughout France to honor the victims killed, so the least the unidentified teacher in Rouen could do was hold a similar tribute the killer -- also a victim, whose al-Qaeda tie was manufactured by Sarkozy and the media, according to this splendid educator. Also from the YNET report:  Mo's older sibling, Abdelkader Merah, says he's "very proud" of his brother.

Pro-Mitt Argument of the Day

... comes from our loyal reader and commenter, Colonel Travis. In response to my post last evening on the Obamacare "tax or penalty" issue, he writes:

Like a lot of others, I suspect if Obamacare is declared unconstitutional it will be a 5-4 decision. But I have to say I'll be really disappointed if it is 5-4 because of the absolutely ridiculous amount of power those 4 idiots will have said Congress could have over the citizenry. There's gotta be at least one moron leftist judge who says - this is simply too much.

This is why I can't stand things like Santorum who said electing Romney will be like electing Obama again. What an idiot. There is no way Romney would nominate a legal doofus like Sotomayor. If we lose the presidency I don't think people really understand how royally *bleeped*-up America will be if three more Sotomayors get on the Supreme Court.

Now Rick Santorum is very far from being an idiot, but what he said in this instance was idiocy of near Etch A Sketch dimensions. We are going to have our issues with Mitt. He and his campaign are gaffe-prone -- although I'm pretty sure he knows the difference between a corpsman and a corpse-man. More to the point, he will often have to be pushed in a more conservative direction -- Dan Henninger diagnosed this with characteristic brilliance several months ago, Rush has pointed out that the primary campaign appears to have had exactly this effect, and to hear Governor Romney speak after he won Illinois the other night was to conclude that this all is to the good. 

But whatever you think of Romney, whatever understandable suspicions you have about his conservative bona fides, we can't lose our perspective here: He is so much better than President Obama that it is like comparing last year's Green Bay Packers (a playoff team with some glaring flaws) to the ’76 Tampa Bay Bucs (an unmitigated disaster). At times when the intensity and sleepless nights of a tough campaign prevent Rick from seeing that, he needs to lie down and get a grip. 

Mitt is not the ideal candidate (no one in the GOP field is), but he's got Bob Bork advising him on judges and John Bolton advising him on foreign policy. You think you're gonna get originalist judges and Bolton grit from Obama? And I'm as worried as anyone about whether Romney and the GOP establishment are committed to do something consequential about what could be our death-spiral of spending and debt; but I also think the Bush years are over -- thanks to the Tea Party and other conservative leaders, the right is no longer going to roll over for a Republican president inclined to do Progressive-Lite. I think Jonah is right that "a President Romney would be on a very short leash." 

I've said here a number of times since I foolishly played the primary endorsement game in 2008 that I don't think it's worth it -- not for NR and not for writers of any ideological bent who try to write objectively about the campaign. But if Mitt wins the nomination, as seems very likely, I will enthusiastically support his candidacy.

For my friends who have hesitation on that score, I'd just ask you to keep four things in mind: Justice Scalia just turned 78, Justice Kennedy will turn 78 later this year, Justice Breyer will be 76 in August, and Justice Ginsburg turned 81 about a week ago. We wish them all well, of course, but the brute fact is that whoever we elect as president in November is almost certainly going to choose at least one and maybe more new members of the Supreme Court -- in addition to hundreds of other life-tenured federal judges, all of whom will be making momentous decisions about our lives for decades to come. If you don't think it matters whether the guy making those calls is Mitt Romney or Barack Obama, I think you're smokin’ something funky.

Which brings us back to Colonel Travis's point. The Supremes are about to hear the huge health-care case. How worried would you be about it if we had a Supreme Court whose last two justices, instead of being Sotomayor and Kagan, had been chosen by a guy getting advice from Bob Bork -- by a guy beholden to the same conservatives whose near-mutiny forced President Bush to appoint Justice Sam Alito?

Only a Tax . . . But For What?

Jonah is quite right that much of the argument over Obamacare's constitutionality will hinge on whether the individual mandate is a "tax" or a "penalty." Not to be too much of a broken record on this, but I think that's unfortunate: It assumes that Obamacare is a proper exercise of federal power if the mandate is a tax. The more profound question, and the one that, regrettably, the Supreme Court won't touch is: For what purposes should the federal government be able to impose taxes in the first place.

The reason this is an issue is the General Welfare clause in the preamble of the Constitution's Article I, Section 8. Congress can only impose fines or penalties in conjunction with one of its enumerated powers. The one at issue in Obamacare is the power to regulate interstate commerce. Obamacare is an unprecedented expansion of the commerce power because it compels Americans to buy a commodity. That is why many experts think the Court will say it goes too far and strike it down. (for what it's worth, I do agree that it goes too far, but I do not believe this will prevent five justices on the current Court from doing the wrong thing.) The point is that if Obamacare does not pass muster under the Commerce Clause, Congress has no authority to fine people for non-compliance.

That is not the end of the story, though, because the Court has held that the General Welfare clause is a broader grant of congressional authority than the Commerce Clause. How much broader? We don't know . . . and that's the problem.

In my mind, if you buy the progressive theory of the General Welfare clause (as not only Democrats but the vast majority of Republicans in government do), there are virtually no limits at all. That is why I thought that, rather than asking Mitt Romney and the other GOP candidates about the constitutionality of contraception bans that no one is actually seeking, it would have been worthwhile to ask these champions of limited government what, if any, limits there are on Congress's power to tax and spend for the "general welfare."

As far as the Supreme Court is concerned, this was an open question until 1936. There were two schools of thought. Hamilton argued that the preamble's reference to a power to tax to "provide for the . . . general Welfare of the United States" was a separate, substantive source of authority, empowering the government to tax for any purpose so long as it arguably benefited all Americans -- i.e., it had to be "general," not for the good of some at the expense of others. Madison countered that this would defeat the purpose of the rest of Sec. 8 -- which, following the preamble, exactingly enumerates Congress's powers. For Madison, the preamble simply made clear that Congress could tax and spend for the purpose of carrying out these limited grants of authority to regulate interstate commerce, establish Post Offices, establish lower federal courts, etc. Otherwise, the federal government could grow into an uncontrollable monstrosity that spends trillions more than the trillions it takes in in taxes. (Oh, right ...).

I think Madison was correct, but the New Deal Supreme Court sided with Hamilton in United States v. Butler (1936) (more on this here). Alas, it appears commentators on the right have little stomach to revisit this conclusion because it would be tantamount to arguing that the welfare state is unconstitutional. Gov. Romney, for example, took umbrage at Gov. Rick Perry's suggestion that social security is unconstitutional -- but he was never asked to explain why he thinks it is constitutional, nor were he, Rick Santorum and Newt Gingrich asked to tell us whether there are any limits on Congress's General Welfare power.

So we'll instead play the semantics of "tax" versus "penalty". It seems like an inconsequential difference -- most people just want to know what they have to pay, not whether the government labels the payment a tax, fee, fine, penalty, etc. The semantics are of tremendous consequence only because of the bedrock question that nobody will be asking.

Only a Tax ... But For What?

Jonah is quite right that much of the argument over Obamacare's constitutionality will hinge on whether the individual mandate is a "tax" or a "penalty." Not to be too much of a broken record on this, but I think that's unfortunate: It assumes that Obamacare is a proper exercise of federal power if the mandate is a tax. The more profound question, and the one that, regrettably, the Supreme Court won't touch is: For what purposes should the federal government be able to impose taxes in the first place.

The reason this is an issue is the General Welfare Clause in the preamble of the Constitution's article I, section 8. Congress can only impose fines or penalties in conjunction with one of its enumerated powers. The one at issue in Obamacare is the power to regulate interstate commerce. Obamacare is an unprecedented expansion of the commerce power because it compels Americans to buy a commodity. That is why many experts think the Court will say it goes to far and strike it down. (FWIW, I do agree that it goes too far, but I do not believe this will prevent five justices on the current Court from doing the wrong thing.) The point is that if Obamacare does not pass muster under the Commerce Clause, Congress has no authority to fine people for noncompliance.

That is not the end of the story, though, because the Court has held that the General Welfare Clause is a broader grant of congressional authority than the Commerce Clause. How much broader? We don't know ... and that's the problem.

In my mind, if you buy the progressive theory of the General Welfare Clause (as not only Democrats but the vast majority of Republicans in government do), there are virtually no limits at all. That is why I thought that, rather than asking Mitt Romney and the other GOP candidates about the constitutionality of contraception bans that no one is actually seeking, it would have been worthwhile to ask these champions of limited government what, if any, limits there are on Congress's power to tax and spend for the "general welfare."

As far as the Supreme Court is concerned, this was an open question until 1936. There were two schools of thought. Hamilton argued that the preamble's reference to a power to tax to "provide for the ... general Welfare of the United States" was a separate, substantive source of authority, empowering the government to tax for any purpose so long as it arguably benefited all Americans -- i.e., it had to be "general," not for the good of some at the expense of others. Madison countered that this would defeat the purpose of the rest of Sec. 8 -- which, following the preamble, exactingly enumerates Congress's powers. For Madison, the preamble simply made clear that Congress could tax and spend for the purpose of carrying out these limited grants of authority to regulate interstate commerce, establish Post Offices, establish lower federal courts, etc. Otherwise, the federal government could grow into an uncontrollable monstrosity that spends trillions more than the trillions it takes in in taxes. (Oh, right ...).

I think Madison was correct, but the New Deal Supreme Court sided with Hamilton in United States v. Butler (1936) (more on this here). Alas, it appears commentators on the right have little stomach to revisit this conclusion because it would be tantamount to arguing that the welfare state is unconstitutional. Gov. Romney, for example, took umbrage at Gov. Rick Perry's suggestion that social security is unconstitutional -- but he was never asked to explain why he thinks it is constitutional, nor were he, Rick Santorum and Newt Gingrich asked to tell us whether there are any limits on Congress's General Welfare power.

So we'll instead play the semantics of "tax" versus "penalty". It seems like an inconsequential difference -- most people just want to know what they have to pay, not whether the government labels the payment a tax, fee, fine, penalty, etc. The semantics are of tremendous consequence only because of the bedrock question that nobody will be asking.

Don't Ask Me . . .

what on earth the Jets are going to do with both Mark Sanchez (whom they just re-signed) and Tim Tebow (for whom they just traded). Remarkable thing is, they got Tebow for almost nothing -- a fourth-round draft pick.

UPDATE: Dan has more over on Right Field.

Worse Than a Powder Keg

We have met the enemy and we are they. That is certainly the message the Obama administration has conveyed to the United States Marine Corps in Afghanistan this week.

Our troops have been the target of serial sneak attacks by the Afghans with whom they are forced to “partner.” Nevertheless, our Marines were ordered to disarm before being admitted into the presence of Obama’s defense secretary, Leon Panetta. Yes, you read that correctly: Our Marines were stripped of their arms.

Panetta was at Camp Leatherneck on a “surprise” visit, hoping to calm the disastrous situation in the combat theater. Turns out not to have been much of a surprise: One of our Afghan “partners” -- a contract interpreter hired to help our armed forces in deadly Helmand province -- seamlessly converted to Islamist suicide assassin. His contacts clued him in on the surprise, so much so that he managed to speed a stolen truck toward the runway, just as Panetta’s hush-hush flight was about to land. He just missed smashing the contingent of Marines waiting to receive the secretary -- that is to say, to whisk the secretary away to safer quarters, if there is any longer such a thing in this hell-hole, where 90,000 American troops are now stationed, compared with the 5,200 who conclusively routed al-Qaeda a decade ago, which you may recall as the mission they were sent to accomplish.

#ad#“We don’t know what his intent was,” the American commander, Army Lieutenant General Curtis M. Scaparrotti, said of the assassin. No, of course not. After all, we wouldn’t want to speculate that perhaps our cherished partnership with the Afghans is an abject failure -- over 99 percent of the population being Muslim, steeped in the Wahhabist tradition that inculcates abhorrence of infidel occupiers.

The situation might be called a “powder keg,” except that is what one says in anticipation of a future explosion. In Afghanistan, the explosions are already happening, their pace and ferocity on the rise. Afghans went on a murderous rampage after some Korans were accidentally burned, Korans that jihadists had used to incite each other by adding handwritten messages reaffirming hatred of Americans. Among nearly three dozen killed when the mayhem began were two American soldiers, murdered by a treacherous Afghan “soldier” they were training.

Soon after, two more U.S. officers were shot in the back of the head by Afghan “security” personnel at the interior ministry in Kabul. A few days later, two more American soldiers were killed by Afghan “soldiers” at a base in Kandahar. In fact, our “partners” have turned their guns on scores of our troops in the last five years, killing 70, wounding many more. Those are just the U.S. casualty figures. British forces and other NATO personnel are also being assassinated with regularity.

Still, our forces are expected to trust these faithless partners. Trust them and, at the premeditated cost of American lives, protect Afghan civilians -- tribal Islamists rife with Taliban and other terrorist sympathizers. There is a reason al-Qaeda was so comfortable in Afghanistan: It is nigh impossible to know who is a civilian. The Taliban, the Haqqani terror network, and assorted other jihadists do not wear uniforms -- the better to blend into the population after doing their bloody business. Yet our troops operate under stifling rules of engagement that quite intentionally prioritize the prevention of civilian casualties over force protection. When under attack, they are denied adequate air cover out of concern, again, about the possibility of harming Afghans.

#page#Last weekend, an unidentified U.S. Army staff sergeant snapped. He is said to have massacred 16 civilians in a small village. In this decade-long war, the burden of which has been borne exclusively by a few hundred thousand military families while the rest of the nation yawns, the staff sergeant was in his fourth combat tour.

The first three were in Iraq, a nation whose Muslim population similarly despises its American liberators, a nation where we left behind no trace of America’s eight-year sacrifice. We were sold a “freedom agenda” bill of goods about creating a stable democracy that would be a reliable American counterterrorism ally. What we actually purchased, at a cost of over 4,000 lives, over 30,000 wounded, and over $700 billion, is a sharia state beholden to Iran. The new Iraq calls for Arab solidarity against Israel amid pro-Hamas demonstrations. Its specialty is the persecution of Christians and homosexuals. It even features a Saudi-style “Moral Police,” sharia shock troops whose latest specialty is the stoning of teenagers for the crime of wearing their hair in the “emo” style.

#ad#Beyond a gaudy, $750 million palace of an embassy that, at 104 acres (bigger than Vatican City), will be too vast for our skeletal security force to protect, Iraq will have no American imprint. But it left its mark on the staff sergeant, a highly decorated combat veteran. During tour number three in 2010 -- i.e., seven years after our principal objective of deposing Saddam Hussein was achieved -- he lost part of one foot in an explosion and suffered a traumatic brain injury when his vehicle flipped over.

No matter. Islamic democracy-building’s forward march of freedom waits for no man: The staff sergeant was patched up and sent off to Afghanistan for tour number four. Now he has gone on a shooting spree. Hamid Karzai, who owes not just his presidency but his continued existence on this planet to the unwavering dedication of America’s armed forces, was barely finished demanding sharia justice for the Koran burners when he started screaming for the staff sergeant to be tried in Afghan court. (The Army has moved him out of the country, and he will eventually face a U.S. court-martial.)

This was the chaos into which Secretary Panetta descended. After dodging the assassination attempt, he was to address American forces and their Afghan trainees in a tent where the only security would be the United States Marines. Yet the Marines were ordered to disarm before entering. From on high came the directive: They were to check their automatic rifles and pistols outside the tent. Only then would Panetta appear.

It is hard to decide which explanation for this is more infuriating. There is the one the Marines were given: Since it would have been insane to allow Afghan soldiers, whose treachery is notorious, to be armed, the always faithful Marines had to be disarmed in order to show that our government considers them no better than their Afghan “partners.” The Marines would know this rationale is fraudulent: It is entirely ordinary for them to remain armed, and for Afghans not to be armed in the first place, during a visit from the secretary of defense to a combat theater.

Hence the explanation the Marines were tacitly left to ponder: As shameful Afghan officials castigated the American troops on whom they depend, and the Taliban hurled charges of “genocide,” American commanders -- taking their cues from the apologizer-in-chief -- disarmed the Marines to show that we take such bloviating seriously.

While Panetta addressed our defrocked troops, the savages were up to their usual grisly business. Tim Lynch, a retired Marine now embedded in Afghanistan, summed it up well in an e-mail to journalist Michael Yon: “The Taliban killed 13 women and children today with an IED in Uruzgan and I think they got 8 yesterday -- but that’s all cool here because they’re the Taliban and we’re the big, fat, retarded kid on the block who gets bullied everyday but still shows up to fork over even more lunch money while assuming at some point everyone will like us because we’re so [deleted] generous.”

#page#Toward what end are we putting our best young people through this agony? On Capitol Hill, hawks such as Representative Buck McKeon (R., Calif.) insist that we need to see the war through because “the reason we liberated Afghanistan in 2001 was right then, and it is the same reason we fight today to keep it liberated.”

Ridiculous. We did not send our troops to liberate Afghanistan. We sent them to rout al-Qaeda, which they did with spectacular speed and effectiveness. There is nothing in the Authorization for the Use of Military Force (AUMF) about liberating anyone. The American people would never have supported such a thankless, implausible mission.

#ad#In point of fact, President Bush was fully prepared to leave the Taliban in place as the Afghan regime if they had agreed to his demand that they surrender bin Laden and his confederates. The Taliban was toppled not because they were tyrannizing their people, but because they spurned us. There was no fervor in post-9/11 America to build a new Afghanistan. In the main, the Afghans are Muslims in the thrall of Wahhabism, the fundamentalist Islam of Saudi Arabia. As such, they cannot be liberated -- they have chosen their own tyranny.

In the meantime, not only have Mr. McKeon and his colleagues failed, in the eleven ensuing years, to specify the Taliban in the AUMF as the enemy of the United States, but we can’t even get the State Department to designate them as a terrorist organization (although, in 2002, President Bush amended the relevant executive order, No. 13224, to label them a global terrorist organization). Three years ago, the then–theater commander, General Stanley McChrystal, asserted that Afghanistan is not our war: “This is their war.#...#This conflict and country are [theirs] to win -- not mine.” Now, the Obama administration has no stomach to fight them; as the Taliban mock us and threaten to behead our troops, the president applauds their new diplomatic mission in Qatar. Obama is pleading with them to negotiate -- reportedly even offering to release Taliban war criminals detained at Gitmo if that is what it takes to get a deal.

The only reason for our troops to be in a barbaric country is to vanquish the barbarians. Obviously, we are not trying to do that in Afghanistan; we are biding time, putting our young men and women at grave risk, so that Obama can manage a withdrawal, so the non-war against our non-enemy looks like a non-surrender.

In Yemen, where there are no U.S. troops on the ground, Bill Roggio of the Long War Journal reports that our government killed dozens of al-Qaeda operatives by air strikes in just the last week. In Pakistan, where there are no U.S. troops on the ground, the Obama administration has stepped up the Bush-era pace of drone attacks, killing numerous jihadists. The name of the game with terrorists is to deny them safe haven to train and plot. As retired general Paul Vallely has been arguing for years, our troops have so damaged al-Qaeda at this point that, without committing massive ground forces in hostile Islamic countries, we can strike the enemy from “Lily Pads” -- established land or seaborne bases in safe areas.

Our troops should be out of Afghanistan. Yesterday.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.