Senators’ letter to Iran was reckless, but probably not illegal

The senator’s letter to Iran probably wasn’t illegal, but it was foolish.

Tom CottonA lot of buzz went on in the past week over a letter that Senator Tom Cotton of Arkansas wrote and 46 Republican senators signed.  Some have called the letter a violation of the Logan Act.   There are essentially three questions to ask:

  1. Did the Senators violate the Logan Act?
  2. Did they violate their oath to the Constitution?
  3. Was their letter a good idea?

CNN’s Jeremy Diamond has provided an excellent analysis of whether the Logan Act was violated.  In a nutshell, senators receive the same protection from the 1st Amendment of the Constitution that the rest of of receive.  As an inherently political act, the letter would receive the highest level of protection from any court.  CNN points out that in the over 200 years the Logan Act has existed there has been a grand total of one indictment and no actual prosecutions.  In short the the Logan Act is a paper tiger, and rightfully so.

The Act itself reads as follows:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

One gets the feel that when President John Adams affixed his signature he was thinking in the same way that led him to believe that the title of the head of the new republic should be king and not president.  People every day talk with representatives of foreign governments, to provide them their perspectives.  Indeed successive administrations, including this one, have encouraged those dialogs, because they advance American values.

Some might argue that the senators who signed the letter had in some way violated their oath to uphold the Constitution, as if somehow they did that by conducting foreign policy.  The Constitution itself is mostly quiet about that.  Article II Section 6 does state that it is the job of the president to conclude treaties with other nations, on the advice and consent of other countries.  But it doesn’t say that others in government can’t speak to other governments.

And so we are left with the question as to whether it was a good idea to send any such letter to Ayatollah Khamenei.  Here the senators erred in two ways.  First, the Cotton letter itself advises the Iranians that any deal President Obama makes on nuclear development with the Ayatollah could be overturned with the stroke of a pen of the next president, because it doesn’t have the force of a treaty.  As it happens, most treaties can be abrogated with the same stroke of a pen by a future president, and so their argument that such an agreement should be brought before the Senate is largely moot.

But beyond that and more importantly, the senators have failed to understand it will not be the United states that enforces of any agreement in economic terms, but rather a coalition of countries, largely in Europe, who will decide to either buy Iran’s oil or not.  The fact is that oil is a commodity, and it will be sold at market prices, and Iran doesn’t care where the money comes from, so long as it comes.  Thus whether the next president backs out of an agreement with Iran matters only in as much as the Europeans also back out of the deal.  They will not tolerate intransigence or extremism, either by Iran or the United States, either in advance of an agreement or later.  If they believe that negotiations have been scuttled for other than security reasons, they may either make a separate deal on nuclear development with Iran, or simply let the sanctions they have in place lapse.  If they believe a president has backed out of an agreement other than for cause, the Europeans will not follow suit.

In addition, it would send a horrible message to the rest of the world if the next president did back out of an agreement without strong justification, because it would it would call into question the word of every succeeding U.S. president.  That’s very bad for America.

Therefore we have to ask why the senators sent the letter in the first place.  The only convenient answer is that all politics is local, and that they wanted to show that they were “tough”.  Certainly that is the image that Senator Cotton likes to project, and it certainly plays well with some parts of the population.  But that doesn’t make the letter the smart thing to have done from a diplomatic perspective.  We are at this point with a relatively moderate President Rouhani at the table because of effective economic – not military – measures.  Certainly we have to be wary of future versions of Mahmoud Ahmadinejad, but we should also be aware that much of the distrust between countries can give way to better understanding and an end to hostile behavior only when each nation recognizes that the other is not filled with crazy people.

House Republicans Read the Constitution

That’s right.  On day 2 of their rule in the House, the AP reports that House Republicans will read the U.S. Constitution.  Better late than never, I suppose.  Of course I would like a reading comprehension test to follow.  Let’s hope that they don’t read the Constitution off an iPod/iPhone app.  When President Obama did his recess appointments last week, I wanted to review Article II (Powers of the President), and it was at that point I thought I should carry a pocket version.  I’ll leave out the names of the guilty, but one free version had truncated each of the articles, and another free version omitted Article II entirely.  That’s probably the version Congress would enjoy.  Fortunately the National Constitution Center in Philadelphia has done a very nice job on theirs.  Funnily enough, however, the Constitution is not accessible from their home page.  Here’s a link to Cornell that I like.

On States Suing over a National Healthcare Plan

I had a guest here this weekend who told me of one theory of why states might sue the federal government over portions of the Obama Healthcare Plan that requires individuals to buy insurance.  The theory goes that the federal government is not authorized by any clause in the Constitution to force individuals to pay for healthcare.  A plain and superficial reading of the Constitution would seem to support that. This leads to three questions:

  1. Is ObamaCare constitutional?
  2. If not, can it be made constitutional?
  3. Who is doing the suing and why?

First, a caveat: I am not a lawyer.  All lawyers: please chime in.

Is ObamaCare Constitutional?

Next, some Constitutional basics.  The way our form of government works, each and every law that Congress passes must find some authorizing basis from within the Constitution, because the 10th Amendment of the Constitution clearly states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, Congress has to find a basis for the law from within the Constitution.  For the better part of three centuries, however, Congress has largely been able to get around this restriction through what has become known as the Interstate Commerce Clause (Article I, §8 Cl. 3):

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

“Commerce among the several states” has been interpreted to mean, for instance, the ability of someone in New York to charge for access to its waterways.  That was what Gibbons v. Ogden (22 US 1) in 1824.  It’s largely the basis of how drug laws are authorized today by the federal government.  Some people might say that this is a stretch of the clause, and that in fact requiring expenditures from individuals on health insurance would be even more of a stretch.

So what’s the logic in favor of the law?  That has its basis in the theory of insurance.  Here I will say that I am not an insurance expert, by the way.  This much I know: a risk pool requires that everyone not make a claim at the same time, and the lower the likely percentage of claims over some period of time, the need for less money by the insurance companies to satisfy claims.

In the context of health care, if only old and sick people buy insurance, because they make up for the bulk of claims, the money required to pay out claims would require very high premiums, thus reducing any benefit to having insurance.  On the other hand, if only healthy people bought into the system, since there would be very few claims, there would be no need for high premiums.  Indeed, healthy people might not buy insurance at all, or very limited policies.  In short, insurers can only sell health insurance to sick and old people if they have a group of otherwise healthy and young to reduce costs.

Does the decision of someone to not buy insurance in one state impact consumers in and companies in other states?  If there exist risk pools that cross state boundaries, then the answer would appear to be yes.  Otherwise it would seem the answer is no.

If ObamaCare is not constitutional, can it be made so?

Supposing the Supreme Court found mandatory premiums unconstitutional, what could the Congress and administration do to get around it?  The tax system offers us one possibility.  The 16th Amendment authorized Congress to tax us:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

One way the Congress could get around this would be to impose a tax that is the amount of a minimum premium, and then allow for a credit based on the costs expended on that premium.  Loophole?  Perhaps.  But not the first.

Coming back to the Commerce Clause, the Congress probably could not have imposed a national speed limit without relying on highway funding.  They probably could not themselves have prosecuted individuals for traveling over 55 or 65 mph.  Instead they required the states to pass laws or face losing highway funding.

Who is doing the suing and why?

Ultimately if we look at the states that have filed suit, I’m sure we’ll see a distinctly Republican red tinge to them.  For one thing, the strategy of Republicans has been to obstruct any Democrat initiative, no matter the harm that obstruction causes to individuals.  Here, what possible benefit could individuals who are uninsured gain from not having health insurance?  Today 45 million Americans don’t have a choice because they cannot take part in a well balanced risk pool, and hence cannot afford any coverage.  Tomorrow even if they don’t have a choice on insurance, at least they’ll have some coverage.


In short, while considering the constitutional elements is interesting at an academic level, the officials doing the suing are harming the very people they are supposed to be serving.  Perhaps voters should remember that.

More lies from the lying liars who tell them

Some time ago, now Senator Al Franken wrote a book called Lies and the Lying Liars Who Tell Them.  I read the book, and found it to be a lousy read as petty, spiteful, and true.  You may not agree with his politics or his style, but the one thing you can say about Senator Franken is that he has always valued the truth.  On the other hand, I don’t know why anyone actually believes Fox News at all.  Because they and their chief liar Bill O’Reilly are at it again!  This time, it’s a railroad job against Senator Coburn, who had the audacity to call my Congresswoman, Nancy Pelosi, a nice lady, and who said, when talking abut the insane notion of putting people in prison for buying insurance, that “The intention is not to put anybody in jail. That makes for good TV news on FOX but that isn’t the intention.”

Bill O’Reilly can’t have that, so he claimed, “We researched on Fox News if anybody had ever said you’re going to jail if you don’t buy health insurance. Nobody’s ever said it.”  Guess what?  The New York Times did some investigating and found at least six instances where someone on Fox News  did say it.

When reporter at the New York Times was caught some months ago for plagiarizing, he was forced to resign and the entire newspaper was shamed.  Not so for Fox when they just make stuff up, as apparently they have no shame!  And so I think they deserve a new name: The Republican Liars Network (RCN).  Not all Republicans are liars, and not all liars are Republicans, but those who choose to believe what they know to be lies, aren’t much better than the liars themselves, especially when they act on that information in the voting booth.

All I can ask is please, Senator Franken, don’t update your book.  There’s just too much material.

Healthcare Debacle

President Obama bet the farm on health care reform, then did nearly nothing to help its passage, and got what  he deserved.  Of course, we deserve better.  We deserved a decent health care bill in the Senate that wasn’t held hostage by Senator Nelson.  We deserved something that improved the circumstances of a good chunk of 45 million Americans, just as many are put at risk because of lack of health care, thanks to 10% unemployment.  Here’s a little math: 10% of 320 million people that live in the U.S.  = 32 million people right there.

Shame on Democrats for not getting a bill through.  Great shame on them.

Now we have nothing.  If the situation remains as is, if we get nothing by the election, then no party is going to touch this issue with a 10 foot pole for our lifetimes.  How good that must be for insurance companies!  If we get nothing, our elected officials deserve less. I say THROW THE BUMS OUT, ALL OF THEM, Republicans AND Democrats.

Including President Obama.