Hobby Lobby Reactions: Sally Kohn Gets So Much So Wrong In Just One Article

I almost thought I wouldn't have anything to post today.  Then the Supreme Court issued a 5-4 decision in Hobby Lobby, and I have reams of reaction articles to choose from.  And from that group, Sally Kohn's piece for The Daily Beast is the runaway winner.  Why?

Well, let's get to it:

In its much-anticipated Hobby Lobby ruling, the Supreme Court has ruled by the usual 5-4 margin that closely held corporations cannot be required to provide contraception coverage. The ruling was narrowly tailored to apply only to the Obamacare contraception mandate and no other insurance mandates and explicitly does not shield employers who might rely on religious grounds to justify other discrimination. 

Wonder of wonders, Kohn starts with a fairly straightforward description of the Hobby Lobby decision: It held that close corporations - not large, publicly traded ones - are entitled to an exemption from the Affordable Care Act's contraception mandate if they have a religious objection to providing contraceptive coverage.

There are some critical facts and bases for the decision left unsaid, but hey, it's an opening paragraph.  Maybe they'll be discussed later?

Nope.  Guess we'll have to take care of that as we go, huh?:

That said, while the ruling could have been worse, it's still dumb.At the heart of both Hobby Lobby and its sister case Conestoga Wood is the requirement under the Affordable Care Act that employer-provided health insurance plans include coverage for basic preventative care. The law outlines what such preventative care encompasses and includes contraception. Contraception is, after all, by definition prevention. But two private for-profit corporations, Hobby Lobby and Conestoga Wood, both argued that for their insurance plans to be forced to cover contraception would violate the companies' freedom of religion. Hobby Lobby, which sells arts and crafts materials, is owned by devout Southern Baptists. Conestoga Wood, which makes wood cabinets, is owned by conservative Mennonites. 

So far, still so-good ... mostly.  Kohn is correct that "basic preventative care" under the Affordable Care Act "includes contraception".  But she omits that Congress left the determination of precisely what types of contraception to HHS.  And she falsely paints a picture of Hobby Lobby (and Conestoga Wood, etc., but we'll just refer to all the plaintiffs as Hobby Lobby, from now on) as objecting to all forms of contraception.  That's not the reality; in line with their belief that life (for religious purposes) begins at fertilization, Hobby Lobby was fine covering contraception that prevented fertilization (such as birth control pill).  Hobby Lobby only objected to providing coverage for forms of contraception that prevented implantation of an already fertilized egg, considering that to be the moral equivalent of abortion (since preventing implantation results in the destruction of an already fertilized egg). 

The Court ruled in favor of Hobby Lobby and Conestoga. In her dissent, Justice Ginsburg bristles at the majority's "decision of startling breadth." Justice Kennedy tries to argue otherwise in his concurring opinion, arguing that the majority opinion "does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." And yet majority opinion held that corporations are "persons" under the Religious Freedom Restoration Act! That's huge!

I suppose it's to be expected that a columnist who agrees with the dissent would adopt the view of the dissent.  But while "h[olding] that corporations are 'persons' under the Religious Freedom Restoration Act" may be "huge" (in that it has large implications), it also was fairly clearly the right result - and definitely wasn't "dumb."

The RFRA, by its terms, applies to "persons" - but doesn't incorporate a special definition of the term "persons" just for the RFRA.  As a result, unless the context of the RFRA requires a different result, the term "person" in the RFRA is to be understood as provided for in the Dictionary Act (a law that provides default definitions for terms used in other laws).  The term "person" is defined in the Dictionary Act as including corporations.

In other words, if you want to exclude corporations from the scope of the RFRA, you need to show that the context of the RFRA demands that the term "person" be limited to flesh-and-blood individuals.

But, with all due respect to Justice Ginsburg's dissent, that's impossible.  Even the dissent recognizes that the RFRA applies to religious or not-for-profit corporations - and those are not flesh-and-blood individuals.  Thus, to exclude for-profit corporations from the scope of the RFRA, the term "persons" in the RFRA would need to be understood as referring to "flesh-and-blood individuals and some-but-not-all corporations."  As the majority correctly points out, while there are some statutes that use "person" to mean "only flesh-and-blood individuals," and others that use "person" to mean "corporations too," there is no statute in existence that uses "person" to mean "flesh-and-blood individuals and some-but-not-all corporations."

Thus, while Justice Ginsburg focuses on whether Congress expressly announced an intent to include "for-profit corporations" in the definition of "person" as used in the RFRA, it seems more reasonable to say that unless Congress expressly said so, the RFRA did not use "person" in a way unique to it and distinct from every other use of the word "person" in American law.

Indeed, while Kohn paints this decision as 5-4 (and it was 5-4, on the merits of the contraceptive challenge), both Justice Kagan and Justice Breyer reserved decision on the issue of whether for-profit corporations could bring claims under the RFRA.  On this issue, only 2 Justices agree with Kohn.  The other 7 are either "so wrong" or, at a minimum, open to being "so wrong."

While the court limits part of its ruling around the contraception mandate to closely held corporations (defined by the IRS here), the essence of the decision is a profound and radical shift in corporate rights.  Both companies currently provide health insurance to their employees, which is what makes their plans subject to the preventative care requirements under Obamacare. And both companies say they don't object to all contraception, simply drugs or intrauterine devices that prevent pregnancy after fertilization, contraceptive methods that folks on the right mis-label and malign as "abortifacients." That characterization is factually, scientifically untrue.

And here is where Kohn starts to really go off the rails.  So far, the worst thing Kohn has done is leave the mis-impression that Hobby Lobby objected to all contraception - and she just corrected that here.

But in arguing that it is "factually, scientifically untrue" that the contraceptive methods Hobby Lobby objects to are abortifacients, Kohn misses the point entirely.  Hobby Lobby doesn't consider the contraceptive methods "abortifacients" because they have a mistaken factual view of the contraceptive methods' operation.  Hobby Lobby considers them "abortifacients" because they result in the destruction of a fertilized egg.  Kohn is free to argue that Hobby Lobby should be using a different word to express "prevention of implantation of a fertilized egg"; she has no business at all arguing that religious people have no right to a religious belief that "prevention of implantation of a fertilized egg" is severely immoral.  That's what freedom of religion means.

But it gets worse:

In fact, it's worth noting that Hobby Lobby actually provided the contraception coverage before it dropped it and decided to sue.

This argument is either knowingly disingenuous or terribly misinformed.  First, the insinuation that Hobby Lobby is faking its religious objection is as irrelevant as it is odious.  This is one occasion on which being precise about who the plaintiffs were is important.  Even if Kohn were right that Hobby Lobby once was fine covering these contraceptive methods, what about Conestoga Wood?There's no similar argument to be made about them, so even if the Court were to conclude that Hobby Lobby's religious objection were insincere, the issues raised by the case would need to be decided anyway.

Second, the insinuation is simply wrong as a matter of fact.  Hobby Lobby did cover two of the methods at issue - for a very short period of time, when a change in its plan formulary included those methods.  The district court found that this coverage was "due to [] a mistake," that the drugs were "immediately excluded" once Hobby Lobby realized they were covered, and the government did not dispute that.  

For the Court to even get to its ruling that the contraception mandate "substantially burdens" the exercise of religion, it has to believe this bunk science.

 Again, no.  Setting aside the intervening sentence (which had nothing to do with science, "bunk" or otherwise), the only thing the Court had to do to "even get to its ruling" was determine that Hobby Lobby had a sincerely held religious objection to the challenged contraception methods.  Whether Kohn wants to call the contraceptive methods abortifacients or anti-implantatories or make up some other name for them is irrelevant.

In fact, there's a reason the dissent did not once address the science of whether the birth control methods were "abortifacients".  That reason?  Because it was irrelevant to the legal issues involved.

In other words, all nine justices, regardless of where they came out, disagree with Kohn on this one.  That's an impressive amount of "wrong" all by itself.

But wait, there's more.

Moreover, in a free and secular society, birth control is about medicine and science and personal health, not religion.

Perhaps.  But only if your definition of "secular society" is a society that definitively rejects religion. And if that's the case, then while America is a "free" society, it isn't a "secular" society.

If, on the other hand, your definition of a "secular society" is "a society that leaves issues of religion to the consciences of its citizens," then America is a "free and secular society."  And in that type of "free and secular society," religion absolutely plays a part in what "birth control is about" - at least for citizens that have religious views impacting on it.  The same way religion plays a part in what "abortion is about" or "social justice is about," for example.  

Further, the ruling in part eroded the distinction between religious non-profits (which were already exempted from parts of Obamacare) and private corporations. If you think going to the mall is like going to church, that makes sense. To everyone else, it's nuts.

Not really.  Again, it goes back to that pesky thing called "the law," which already includes corporations in the definition of the legal term "person" and generally doesn't distinguish between "religious non-profits" and other types of corporations; as a general rule, they're all in, or they're all out.  The "distinction between religious non-profits ... and private corporations" that Kohn worries is being eroded is a creature of her own imagination.

The Supreme Court had already granted all kinds of other special rights and powers to corporations — including "corporate personhood" or the right for businesses to be treated as people under the law.

First, as the above discussion should make clear, defining corporations as "persons" isn't a creation of the Supreme Court.  Congress, in the Dictionary Act, defined the legal term "person" to include corporations.  If Kohn has an issue, then she should take it up with Congress.

But be careful.  Corporate "personhood" is what lets corporations do things like enter into contracts, sue and be sued, be subject to regulations, etc.  In other words, to exist.  

And because corporations are people, the Court has ruled that corporate spending to influence elections is equivalent to speech and cannot be infringed. At a time when economic inequality is reaching record highs and support for big business is at an all time low, the Supreme Court has consistently seen fit to confer more and more power and privilege to already powerful and privileged corporations. At a time when we should be putting more checks and balances in place for corporate America, the Supreme Court is loosening the reigns.

I'll leave aside the opinion paragraph, except to suggest that perhaps Kohn's ideological desire to "tighten the reigns" on corporations might, possibly, conceivably, be impacting her POV on the Hobby Lobby decision a bit?

Maybe?

Moreover, this case is a perversion of religious freedom. Our values of religious freedom and tolerance were meant to protect individuals in our nation from the tyranny of government and business. Recall that in the earliest days of American history, it was not only the King of England but the powerful East India Company out from under the mutual thumb of which American colonists were trying to crawl.

I'm sorry, but what text of the First Amendment does Kohn have?  Mine starts with "Congress shall make no law . . ."; no reference to "business" or "corporations" anywhere in it. Private citizens have every right to run their businesses in line with their religious beliefs.  And Kohn and like-minded compatriots have every right not to patronize them.  That's what freedom of religion is about.

Moreover, as I have written previously, freedom of religion explicitly includes not only the freedom to practice one's religion but to be free from the imposition of someone else's religion. The owners of Hobby Lobby and Conestoga Wood cannot be allowed to impose their religious beliefs on their employees.

And this was nonsense when Kohn wrote about it previously as well.  The owners of Hobby Lobby and Conestoga Wood are not "imposing their religious beliefs on their employees."  The employees are free to buy the contraception of their choice themselves, are free to have abortions, are free to be atheists or Muslims or Jews or even Presbytarians.  The business owners are not requiring their employees to act (or refrain from acting) in accordance with the owners' religions.  There is literally no sense of the phrase "imposing my religious beliefs on you" - other than in Orwell's Double Speak - that incorporates "having my religious beliefs and behavior impact you."

But it's the conflation of these points that is truly frightening: the idea that in continuing to give corporations more and more unchecked power and reign, we are giving them the power of religious tyranny — the ability to wantonly and unilaterally impose religion as they see fit on their workers and perhaps more. Under such a ruling, it's not far-fetched to imagine companies (genuinely or disingenuously) claiming religious exemptions in refusing to serve gay customers or denying health insurance coverage to the multi-racial child of an employee.

And to make those religious claims stand up, the employer would:

1) Need to convince a court that their religious beliefs were sincerely held;
2) Need to convince a court that their religious beliefs were imposed on by the government regulation at issue; and
3) Need to convince a court that there was a narrower available way to accomplish the government goal.

Let's take Kohn's parade of horribles, for example.

What religious belief would provide a basis for objecting to provide health coverage for a mixed-race child of an employee?  Don't say anti-miscegenation, since providing or not providing coverage wouldn't actually impact the "miscegenation" itself - and therefore would not burden the employer by making them complicit in the "moral wrong."  Same for "not serving gay customers"; absent an argument that serving gay customers is in and of itself morally wrong, there's no burden.

And what, in each of these hypotheticals, would be the less restrictive means of accomplishing the government's compelling interest in fighting discrimination?  Hard to say, given the hypotheticals themselves.  Kohn certainly doesn't bother trying.  But wait, she gets worse

In fact, what would stop companies from saying that their religion makes them opposed to taxes or obeying pollution regulations or you name it?  Just what we need in America, more corporations with more excuses to not play by the same rules that ordinary Americans have to obey.

I don't know.  Perhaps - and I'm just spit-balling here - the express language in the majority opinion explaining why taxation can't be subject to a religious exemption??

And that language - that taxation only works as a collective obligation, and that religious exemptions would inherently upend the entire scheme - works just as well for pollution.

It's almost as though Kohn didn't bother reading the decision she's criticizing.

But in its rulings, this Court repeatedly gives more power to the interests of already-powerful corporations than the needs of the American people. In her dissent, Justice Ginsburg writes, "The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure." Except the majority ruling makes clear the interests of those women simply don't matter as much as the whims of corporations.

In fact, you can call this Exhibit 2 supporting the theory that Kohn went straight to the dissent. Because what the majority ruling makes clear - by, again, you know, saying it expressly - is that they reached their decision primarily in reliance on the fact that no employee would actually lose coverage for even a single drug.  How is that possible?  By extending the "religious corporation alternative" already employed by HHS - requiring the insurer to cover it, without cost sharing to the employer - to for-profit corporations with religious objections.

Let's all pray to the corporate gods who control our elections that someday we have a Supreme Court that values the American people more than big business.

I'd prefer to limit my prayer to more major things - like the safe return of Eyal Yifrach, Gilad Shaar, and Naftali Fraenkel, who were (it turns out) murdered by their kidnappers.  But if I were in the mood to pray for frivolous things, it would be for less-ideologically blinded articles for me to blog about.

Federalist Managing Editor: Obama is the Godfather (spoiler alert: he isn't)

Today we turn to Joy Pullman, managing editor of the Federalist, who has a simple thesis: the Obama government is being run "mafia style." It's a fairly straightforward premise, and she tackles it head-on.  Washington politics, she says, follow at least four standard mafia tropes: racketeering and extortion, people "wind up mysteriously dead," "no one talks," and the boss doesn't know what's going on.

Say what?

Let's walk through it.

Chicago is a home base of the American mafia, and it seems to have sent a satellite office to run the country from Washington, DC. In major respects, our government has morphed from a guard of our natural liberties into a hierarchical system of cronies that dispenses limited freedoms only in exchange for following its tight-fisted rules.

Larry Arnn, president of Hillsdale College, has called where we’re headed feudalism. That’s a system of patronage in which the amount of leverage you have depends on your wealth and Rolodex. Another way to look at our country’s situation is by comparing how the Obama administration and its progressive allies operate to the global and American mafia.

The similarities are striking. Let’s consider a few.

Well, this is an unsubtle (and less than promising) beginning.  President Obama, you see, was from Chicago.  The mafia has featured prominently in Chicago.  And our government has changed - it used to guard our natural liberties, but now it's a "hierachical system of cronies that dispenses limited freedoms ..."  It's hard to avoid the inference Ms. Pullman wants you to draw, and makes express in her next paragraphs: Obama brought "mafia-style" governance to the White House!

Except that he didn't.  Leave aside, for the moment, whether the characterization Pullman is making is a fair one (it isn't, and we'll get to that).  The reality is, the issues she is complaining about here extend back long before President Obama was first elected.  The most significant intrusion on American freedoms in recent memory was the Patriot Act passed by a Republican Congress and signed by a Republican President.  The "hierarchical system of cronies" has embedded itself in American politics along with the permanent campaign, which traces back to the rise of the 24 hour cable news cycle, talk radio, and internet pundits.  Until relatively recently, the Republicans were the party of party discipline, not the Democrats.  And it's laughable to suggest that wealth and connections only recently became the keys to the Washington kingdom. 

It's fair to argue whether the tradeoffs between security and liberty embodied in the Patriot Act were wise ones.  And it's absolutely crucial to recognize the corrosive effect today's politics and parties have on American democracy.  But it's unfair to suggest there has been a fundamental change in the nature of government since President Obama arrived.  To the contrary, Obama's biggest flaw was his failure to be the "change" he promised in his first campaign.  It's not that he brought something new and awful; it's that he continued something old and awful.

As for those "striking" similarities to mafia rule:

Racketeering And Extortion

At the heart of every mafia enterprise is a racketeering operation, in which businesses and private citizens are forced to pay the mafia to protect themselves from harm. Potential harm includes both what The Mob inflicts and that from outside sources, such as gangs or swindlers. Often, a protection racket arises in areas where the rule of law is weak, because in those areas the police and judiciary cannot or will not provide the protection from criminals everyone needs.

OK, with you so far . . .

The analogies to government should be obvious, but one includes the pervasive feelings among business executives that, if they don’t donate to political campaigns or “nonprofit organizations” run by ex-government officials or other political cronies, their industry or even specific business is likely to wind up on the wrong side of some business-crushing regulation pretty quickly.

Wait, no, lost you here.  The analogy between government and a protection racket aren't obvious. For one thing, an effective "police and judiciary" - which Pullman identifies as necessary to prevent protection rackets - are government services.  The government does provide - legitimately - effective protection in the form of armed forces.

But that's not a "protection racket" - it's just protection.  The difference between government services and a protection racket is easy to identify: the consent of the governed.  A protection racket is foisted, unwillingly, on local businessmen, complete with threats and follow-through in case of noncompliance.  Americans, in contrast, elect their representatives, who make the laws, and the executive charged with carrying them out.  If we don't like their performance, we can vote them out of office.  We've done a poor job of holding our elected officials accountable - but that's on us, too.  For democracy to work, the citizenry has to hold up its end of the bargain.

Which brings us to the money-for-access conundrum of the "business leaders" Pullman cites.  Yes, it's a problem, and a real one.  But no, it's not new, and it's not "mafia-like."  Corruption is an age old problem, and one that should be fought at every opportunity.  But it's not organized and centrally controlled in the way a criminal organization is, and that makes all the difference.

The Hobby Lobby case the Supreme Court is about to decide any day now is yet another example of the Obama administration’s demand that people follow its rules or pay crushing extortion fees (preferably both). Both the fines for not complying with Obamacare and the expense of doing so are simply protection money, paid to the administration directly with fines or indirectly through expensive healthcare purchased from Obama campaign donors. The administration doesn’t care about sick people or poor people, just like the mafia doesn’t care about actually protecting people. What both care most about is power.

And this is just full on ridiculous, and exemplifies the very worst of our politics.  Forget the lunacy of comparing the insurance mandate (which isn't even at the heart of the Hobby Lobby case, since all Hobby Lobby is objecting to - and not on grounds of expense - is the need to cover certain types of contraception) to "extortion fees."  In Pullman's world, the folks who disagree with her about Obamacare aren't simply having a policy argument based on a legitimate difference of opinion.  No, they are evil, heartless devils who "don't care about sick people or poor people" - they just want power.

I suppose it's her opinion, and she's entitled to express it.  But it's an entirely unsupported and pernicious opinion, one that drags America down by ensuring (if widely believed) that political compromise and cooperation are impossible.  After all, if the "other side" doesn't really care about America or its citizens, and their proposals are all about getting and maintaining power for their own sake, how can you compromise with that?  You can't.

But enough about that.  Let's move on to the truly ridiculous portion of her argument:

People Wind Up Mysteriously Dead

The ultimate way to earn power over other people is to threaten not just their livelihood, but also their lives, and the lives of those they love. On that note, perhaps it’s appropriate to mention that the Internal Revenue Service and U.S. Department of Education each have their own SWAT teams. Nary an innocent taxpayer sponsoring this arms race has any idea why their money is buying the nation’s school nanny a strike force, but apparently the Obama administration internally justifies such things. And let’s not forget Bambi Team Six, the crack shots within the Department of Natural Resources who sent a military-style team to execute a fawn some well-meaning American peasants had rescued from a more natural death. When black-helmeted men circle your home, break down your door, throw your children from their sleeping beds onto the dew-ridden lawn, and shoot you 22 times because some meathead mistook your house for a drug dealer’s, it’s clear government has gone from protecting you from threats to becoming a threat itself.

This paragraph reads like it was lifted from the worst conspiracy sites on the internet.  Yes, police have used excessive force on occasion.  (I live in New York, and some of the worst recent examples are from here).  But cherry-picking five or six incidents across a nation of 50 States and 313 million people does not an organized (mafia style) campaign of intimidation make.  I know next to nobody who lives in fear of government strike teams (and it's only "next to nobody" instead of "nobody" if you count a fellow Jets fan who posts on a message board I frequent).  So these incidents really are indicative of a campaign "to earn power over other people," it's a remarkably ineffective one.       

More directly, however, thanks to “The Godfather” and “The Sopranos,” everyone knows that the mafia’s presence means frequent, mysterious deaths. That’s also a hallmark of this administration. Fast and Furious and the Benghazi massacre are the two most obvious examples. It’s been years, in both cases, and it’s still an utter mystery as to why Americans died in foreign lands, where all those guns went, who used what money, where it all came from, and why. That may have something to do with the Justice Department’s utter lack of curiosity about massive crimes being committed on its watch, but remember: where there are mafia, there are corrupt police, district attorneys, and courts.

Again, what in God's name is Ms. Pullman talking about.  The deaths in Benghazi and Fast & Furious aren't "mysterious" at all.  They aren't attributable to a shadowy conspiracy or hit man.  The killers are known, and the scandals surrounding them relate to failures of administrative oversight (and subsequent attempts to avoid political responsibility for those failures, which may or may not have ripened into criminal cover ups), not to administration involvement in the deaths.  At least the Vince Foster conspiracy nuts have the decency to allege an actual murder, rather than stretching to make political scandals fit a poorly-thought-out article theme.

The mystery isn’t who did it, but proving it. Part of the reason it’s impossible to find evidence to prove what everyone knows is that no one will talk.  

At least her segue is good.

No One Talks

The mafia protects itself with codes of silence, both as an expression of machismo-style loyalty and because people who talk end up under a bus. The Obama administration—or its enablers—has apparently gone high-tech with this idea: Who scrubbed Lois Lerner’s email server? It’s utterly ridiculous that in an era where everyone’s naked pictures and address can be found online, two years of what surely are thousands of government employee emails can “go missing.” Let’s not forget, either, Lerner’s fifth-pleading stonewall of Congress, or that every congressional hearing or investigation into any unseemly events is met at every turn with refusals to provide documents, witnesses, or answers.

And where are the classic second-term interviews with “a former high-ranking official within the Obama administration” breaking silence to air dirty laundry, make a few revelations, and settle a few scores? Is everyone afraid of what will happen if he or she exhibits an independent mind (albeit after the fact)?

This one is actually a fair point - the level of stonewalling has reached absurd proportions with the latest "the dog ate my e-mail" revelation - but the mafia connection and reasoning?  Not so much.  Lois Lerner didn't take the Fifth because she was afraid of repercussions from the Obama administration if she talked - she did it because she was afraid of repercussions from prosecutors and Republicans.

As for critical statements from former high ranking officials, Ms. Pullman seems to have missed a lot of that news.  Like this criticism of the Afghan withdrawal plan.  And former Defense Secretary Gates' memoir.  Or Robert Ford explaining his resignation as ambassador to Syria.  Google can help her find more, if she wants.  None of these people seem to feel a need for witness protection programs.

So, apparently, people aren't afraid to speak their minds.  What that does to Ms. Pullman's analogy is obvious.

The Boss ‘Has No Idea’ What’s Going On

Mafia leadership never directly calls the hits. They imply to underlings what they want done, so if the underlings are caught they can’t incriminate the bosses in court. This leadership style is not just the mafia’s. “A Few Good Men” dramatized how it might play out within a Marine unit. The direct analogy, of course, is that President Obama never seems to know what’s happening within his own organization. He had no idea the IRS was targeting conservative groups. He heard on the news about the Veterans Affairs debacle, where vets literally died because the agency managing their healthcare was so corrupt and incompetent, even though in the Senate he had served on the Veterans Affairs Committee and had heard of the problems in 2007. Rush Limbaugh has played a montage of all Obama’s “I’m just hearing about this and I’m so furious” moments: About the Secret Service scandal, the Gulf Oil spill, when people found out Van Jones was a Communist sympathizer…the list never ends.

And this, of course, is outright insane.  Mafia dons (at least as portrayed in pop culture) aren't worried about "plausible deniability."  They're counting on the whole "nobody talks" thing Pullman referenced above (plus hitmen for anyone who breaks the code) to protect them from "underlings incriminating the bosses in court").  And if that doesn't work, they're well aware that "implying" to underlings isn't going to keep them out of jail.  When "Mafia Underling One" gets on the stand and testifies that "Mafia Boss" said "wouldn't it be a shame if something happened to Louie" and that was mafia code for "kill Louie" . . .  well, Mafia Boss is well aware that he isn't getting acquitted based on the "but I only implied it" defense.  Oh, and "yeah, he's in my criminal syndicate but I didn't order that particular crime" doesn't fare very well, either, thanks to conspiracy laws.

More, it isn't "common practice" for a criminal overlord not to know what his underlings were doing.  To the contrary, a truly oblivious crime boss is soon to be either arrested or dead.  Which isn't good for business.

So no, there's not really any decent comparison to be made, here.

Either Obama is the world’s best delegator-in-chief, or he knows a lot more than he’s telling us. Nobody will ever be able to prove that, of course.

Here's the thing, Joy.  When the government is big, it's impossible for anyone - even (in fact especially) the President - to know all its workings.  That's an argument against big government (one that I'd expect the Federalist to be making) and President Obama has certainly taken it to a new level of administrative incompetence.  But the concept that things like the IRS targeting went all the way up to Obama's level is conservative wish-fulfillment at its best.

Time for the big finish.

The mafia answers a need for societal order by imposing criminal order upon the citizenry. In the Obama administration’s case, it first created a need for it to impose order by destroying the rule of law. Sometimes The Mob does that, too. It fails when a few good men resist. The problem with being run by a criminal enterprise, of course, is that it inverts justice and destroys freedom. A murderer is not called to account for his acts unless it displeases the mob boss, regardless of how the family of the murdered feels. Everyone, from business owners to mob associates to children, lives in fear. And, as with every manifestation of injustice, mafia government means that the little people—like you, me, and our neighbors and kids—get hurt the most.

Again, in case you missed it at the beginning, here's Pullman's point: this is all new, and deliberate.  In fact, it's a criminal conspiracy.

Of course, it's none of those things.  But a more sober dissection of the problems of the Obama Administration wouldn't be as much fun, I guess.

Nick Kristof Channels Obama: It's Not Me, It's You

In today's New York Times, Nick Kristof responds to polling showing a vast majority of the public disapproves of the President's foreign policy by mounting a stirring defense of the President in an Op-Ed risibly titled "Obama's Weakness, or Ours."

The problem? The defense is a melange of fail - replete with faulty assumptions, poor logic, and naked appeals to sentiment.  As a defense of President Obama's foreign policy, it doesn't accomplish much.  But as an illustration of the lengths partisan media outlets (liberal and conservative both) will go to carry the water for a favored political figure, it's invaluable.

Let's get to it.  Kristoff starts by setting the table: 

The odds are that you think President Obama’s foreign policy is a failure.

That’s the scathing consensus forming, with just 36 percent of Americans approving of Obama’s foreign policy in a New York Times/CBS News pollreleased this week. Foreign policy used to be a source of strength for the president, and now it’s dragging him down — and probably other Democrats with him.

People aren't happy with the President's foreign policy, and that's likely to have electoral consequences.  Fair enough.  But Kristof quickly moves on to what he thinks is the real problem -- those mean Republicans:

Mitch McConnell, the Senate minority leader, warns that Obama “has weakened the national security posture of the United States.” Trent Franks, a Republican member of the House from Arizona, cites foreign policy to suggest that Obama is “the most inept president we have ever had.” 

This is smart rhetoric.  Pair a measured factual assertion that can be examined and debated ("the President's foreign policy has weakened the national security posture of the United States") with a hyperbolic, exaggerated and fact-free potshot from a Republican back-bencher ("President Obama "is the most inept president we've ever had"), in order to falsely imply they are equivalently easy to dismiss.

They aren't.  The claim that President Obama is "the most inept ever" is not worthy of debate.  For example, he hasn't presided over a massive economic collapse and depression while banning alcohol (Hoover), hasn't helped ensure a civil war by failing to bridge the North-South divide (Buchanan), hasn't strongly supported the extension of slavery to new states (Fillmore), hasn't led the U.S. into a war that drained it of blood and treasure based on faulty intelligence (Bush II), etc.  He certainly isn't a great president - but he isn't remotely "the worst", either, except in the fevered imaginations of die-hard partisan Republicans.

The claim that Obama has weakened America's national security posture?  That's a completely different kettle of fish.  There's a clear current running through reports on the attitudes of officials in friendly foreign governments that they simply no longer feel they can rely on America living up to its rhetoric on foreign policy (which is directly traceable to mis-steps like the Syrian "red line").  It's fair to ask whether there were better alternatives available to the President (though "talk softly and carry a big stick" seems like an obvious one for the Syrian debacle, for example).  But McConnell's position can't be rejected out of hand (as Kristof does) and is worthy of serious consideration.  

That's not something Kristof is willing to give.  Instead, he identifies "three issues" the Republicans have been "unfair" to Obama on:

Obama is no Messiah, but this emerging narrative about a failed foreign policy is absurdly harsh. Look at three issues where Republicans have been unfairly jabbing him with pitchforks:

Again, a nice rhetorical flourish - the Republicans, you see, are devils, complete with pitchforks.

So, what are the three issues?  Here's the first:

Trading five Taliban prisoners for Bowe Bergdahl was unpopular with the public, and the Obama administration may have made the trade in the incorrect belief that Bergdahl was near death. Then again, here’s an American soldier who spent five years in Taliban custody, some of that reportedly in a cage after trying to escape. If we make heroic efforts to bring back American corpses, how can we begrudge efforts to bring back a soldier who is still alive?

To begin, Kristof concedes that the administration may have been fooled into making the trade by misinformation about Bergdahl's health.  That Kristof thinks this is a defense of the President is astounding: getting the intelligence on which you base a major foreign policy decision wrong is, in and of itself a foreign policy failure.  That's as true in the case of the Bergdahl swap as it was in the case of Iraq's "Weapons of Mass Destruction" - if, in all likelihood, with less disastrous consequences (short of one of the detainees morphing into the next leader of the Taliban and becoming responsible for hundreds of thousands of deaths, it's hard to imagine it being anywhere close to as disastrous a miscalculation).

Next, Kristof compares the Bergdahl swap with "heroic efforts to bring back American corpses" - without detailing what those efforts were. There are several problems with this argument.

First, it's comparing apples with oranges.  I'm unaware of (and a quick Google search didn't turn up) any incidents of the U.S. trading prisoners for corpses of fallen soldiers (Israel, in contrast, has done just that).  The "heroic efforts" the U.S. undertakes to recover corpses involve extensive expenditures of time and money, and even putting fellow soldiers in harms' way.  I doubt that anyone would have criticized the U.S. for spending time and money, and even risking soldiers, to rescue Bergdahl. In fact, the U.S. did make rescue attempts, and nobody has criticized the US for making them. That, however, is not remotely the equivalent of releasing dangerous terrorists to get Bergdahl back, and pretending that the two are the same (without expressly saying so) is a signal that Kristof understands that his argument is flawed.

Second, if, as now seems likely, Bergdahl was a Taliban captive solely because he walked off base in disillusionment with his country and army service, the comparison is even worse.  Fallen soldiers have honored their commitment to the country, army, and fellow soldiers, and paid the ultimate price for doing so.  Suggesting that the efforts we make on their behalf should be equal to the effort we owe a deserter is insulting to the fallen soldiers and their sacrifice.  We owe far more to those who honor their commitments than we do to those who repudiate them.

Indeed, Kristof's antiseptic phrase - "how can we begrudge efforts to bring back a soldier who is still alive" - ignores the actual thrust of the criticism: not that "efforts were made," but the cost of recovering Bergdahl.

Only after having led with a paragraph that attacks the very idea of criticizing the Bergdahl trade for any reason does Kristof get into the details.  Laughably, here's his argument:

Sure, there are risks. But the five Taliban prisoners have probably aged out of field combat, and, if they return to Afghanistan after their year in Qatar, they would likely have trouble finding American targets because, by then, the United States will no longer be engaged in combat.

Can you spot the problems?

Let's start with the claim that the Taliban prisoners "have probably aged out of field combat."  Let's even grant that naked assumption.  So what?  Osama bin Laden had also "aged out of field combat."  So have Ayman al Zawahiri and Khalid Sheikh Muhammed.  Anwar al-Awlaki was never a "field combatant."

The point is obvious.  The released Taliban prisoners aren't dangerous because they might pick up a gun and shoot an American soldier on the field of battle.  They are dangerous because they are commanders, leaders of men, planners of battles.  They are Taliban generals, not privates, and evaluating the threat they pose by whether they have "aged out of battle" is like saying General Martin Dempsey, currently Chairman of the Joint Chiefs of Staff, has no military value because, as a 62 year-old, he's "probably aged out of field combat."

The rest of Kristof's argument is equally ludicrous.  Generals and planners of campaigns can aid the enemy war effort from Qatar as well as within Afghanistan.  Perhaps not as effectively - but suggesting that it is impossible for them to have an impact from a distance simply ignores the reality of today's interconnected world.

As for the point that the U.S. will be out of Afghanistan by the time the swapped prisoners get home, again, so what?  The U.S. is out of Iraq, too - or at least it was, until ISIS started taking territory, and now we're sending U.S. personnel back in.  If a resurgent Taliban reclaims Afghanistan - or worse, begins to more seriously threaten nuclear-club member Pakistan - is there any doubt the U.S. will be drawn back in?  At best, Kristof's argument is myopically shortsighted. Criticisms of the Bergdahl deal are legitimate, and not "unfair" to the poor, maligned President.

Finally on this topic, Kristof ends with:

More broadly, there’s nothing wrong with negotiating with the Taliban. The blunt truth is that the only way to end the fighting in Afghanistan is a negotiated peace deal involving the Taliban, and maybe this deal can be a step along that journey.

It's true that there's nothing wrong, in concept, with negotiating with a combatant army.  Short of the utter demolition of the Taliban - which is impossible or at least highly unlikely given their bases in Pakistan - there will need to be a negotiated peace deal to end the combat.  But it is in that context that a swap of high level Taliban detainees for Bergdahl would have made sense.  More, the odds of a negotiated peace are essentially zero given the timeline for withdrawal of U.S. troops announced by the President.  Why would the Taliban accept a deal, when they can simply wait a year, get their top commanders back from Qatar, and reignite their offensive without need to worry about fighting U.S. soldiers?

In other words, far from being "a step along the journey to a negotiated peace," the Bergdahl swap and timeline announcement diminish the likelihood of any peace deal.

Russian aggression in Ukraine was infuriating, but it’s petty Washington politics to see it as emanating from Obama weakness. After all, President George W. Bush was the most trigger-happy of recent presidents, and he couldn’t prevent Russia from invading Georgia in 2008 and helping carve off two breakaway republics.

Kristof's second argument is, in many ways, worse than his first.  At the time Russia invaded Georgia in March 2008, Hillary Clinton and Barack Obama were campaigning on anti-war platforms and declaring themselves the "anti-Bush."  President Bush was a lame duck limping to the end of his Presidency with a Democratic Congress, absolutely no political capital to spend on any military intervention anywhere, and without the international goodwill to enable an effective sanctions regime.  

In other words, far from establishing that "even a strong President can't stop crazy Russia," Kristof's example drives home the criticism: Russia is at its most aggressive when it has little to fear in the way of U.S. response.

More, the comparison between Crimea/Ukraine and Abkhazia-South Ossetia/Georgia is a poor one.  Abkhazia and Georgia had been in active military and political conflict for years - since Georgian independence from Russia in the early 1990s, in fact.  There was active war between Abkhazia and Georgia in 1992, with Abkhazia losing.  South Ossetia attempted to secede from Georgia in 1990, and fought wars with Georgia in 1991-92 and 2004.  Comparing that to Russia's lopping Crimea off of the Ukraine by invasion is nonsense.  Crimea had been part of the Ukraine for 50 years, with Crimeans expressly renouncing separatism (in exchange for significant autonomy) in 1992.  

In other words, what Russia did in 2008 was take sides in an already existing and fiery dispute between Georgia and two regions that Georgia considered part of its territory but which fiercely proclaimed their independence.  What Russia did in 2012 was foment and militarily support a secessionist movement within a strategically important region of Ukraine when Russia's bought-and-paid-for Ukrainian leader, Viktor Yanukovitch, was ousted by Ukrainian protesters.

Obama diplomacy appears to have worked better than military force would have. Contrary to early expectations, Russia did not seize southeastern Ukraine along with Crimea, and President Vladimir Putin of Russia this week called on Parliament to rescind permission to invade Ukraine. Be wary, but let’s hope the Bear is backing down. 

First of all, what "early expectations" had Russia seizing southeatern Ukraine?  Crimea wasn't a land grab.  The home of Russia's Black Sea Fleet's Sevastopol base, Crimea was strategically important to Russia, and Putin acted to ensure that it stayed within Russia's control.  Southeastern Ukraine, in contrast, has no strategic utility to Russia.

Second, when the best you can say about the President's foreign policy is "well, at least Russia only took a small, strategically important chunk of territory from a neighboring state, instead of taking a larger piece of territory too . . ." well, you aren't really praising that foreign policy.

That's not to say there was some magic bullet the President could have relied on to stop Russia from taking Crimea once events were in motion.  But in all likelihood, the President's unwillingness to act after Syria crossed his "red line" - and that he clearly stomped on his Secretary of State when Kerry appeared to be taking the "red line" seriously enough to suggest military action was imminent - helped set the conditions for Putin's moves.  After all, even if it didn't work, what did Russia have to fear in making the attempt?

Kristof then moves on to Iraq:

The debacle in Iraq is a political and humanitarian catastrophe, but it’s a little rich for neocons to blame Obama after they created the mess in the first place. Obama was unengaged on Iraq and Syria, but it’s not clear that even if he had been engaged the outcome would have been different.

Suppose Obama had kept 10,000 troops in Iraq as his critics wish. Some would have been killed; others injured. We would have spent another $50 billion or so in the Iraqi sands (that’s more than 25 times what Obama requested to start universal prekindergarten, but Congress balks at the expense). And Prime Minister Nuri Kamal al-Maliki might have felt even less need to keep Sunni tribes on his side. Would all this really have been the best use of American lives and treasure?

Of course it's "not clear that even if he had been engaged the outcome would have been different." By that standard, no decision could ever be criticized; after all, we can't know for certain what would have happened had events unfolded in other ways.

The question isn't what the outcome "clearly" would have been had the President acted differently.  The question is whether it is reasonable to believe a different decision would have led to a better chance of a good outcome.  And that is really hard to argue against.  Kristof can speculate about what al-Maliki "might have done" had the U.S. maintained a presence in Iraq - but the reality is al-Maliki didn't indulge in the sectarian bullying that undid the gains of the surge and Sunni Awakening until after the U.S. left.  And we certainly wouldn't have the Islamic State in Iraq & Syria - which splintered off from al Qaeda because al Qaeda was "too moderate" for ISIS - controlling territory in Iraq (more on ISIS and Syria in a bit).

I'm also not sure where Kristof gets his $50 billion number from.  He links to an article on troop costs in Afghanistan, which mentions per-troop costs in Iraq in 2004 being $400,000.  That would equate to roughly 4 billion dollars per 10,000 troops per year.  Even factoring in inflation since 2004, there's no way to get from 4 billion to 50 billion unless you are adding costs up over a decade - which is a long time to project out costs, and ignores likely changes to cost structures under a permanent Status of Forces agreement.  And at the end of the day, if ISIS develops a statelet in the heart of Iraq from which it can destabilize Syria, Lebanon, Jordan, Israel, and Iran (which it is bidding fair to do), we are likely to look back at $50 billion as a cheap price to pay.

Yes, Obama has made his share of mistakes, especially in Syria, where he doesn’t seem to have much of a policy at all. Partly balancing that, he helped to defuse the Syrian chemical weapons threat.

Wait, so President Obama has made foreign policy blunders?  What was the point of this article, again?

Syria isn't just a mistake, it's a disaster.  The U.S. could likely have preempted the rise of ISIS by more forcefully aiding the original Syrian rebels.  Instead, for fear of arming them lest the arms eventually "fall into the wrong hands," we ensured that jihadi elements would be the strongest among the rebels and enabled the rise of ISIS - which has now captured the advanced weapons the U.S. put in the hands of the Iraqi army.

As for that silver lining . . . well, Kristof may want to pay a little more attention to the news.  Since the President "defused" the Syrian chemical weapons threat, Syria has made "systemic use" of chlorine gas, a chemical weapon.  This is shocking.  After all, Syrian compliance with the chemical weapons rules was all but guaranteed by Russia, which is a notable adherent to international law (see above).  The President, to put it crudely, got played on Syria. A paper agreement that hasn't stopped Assad from deploying chemical weapons isn't a foreign policy success, it's an abject failure.

Look, the world is a minefield. President Clinton was very successful internationally, yet he bungled an inherited operation in Somalia, delayed too long on Bosnia, missed the Rwanda genocide and muffed the beginning of the Asian financial crisis — and all that happened during a particularly skillful administration. 

As for former Vice President Dick Cheney complaining about Obama’s foreign policy, that’s a bit like the old definition of chutzpah: killing your parents and then pleading for mercy because you’re an orphan. In the Bush/Cheney years, we lost thousands of Americans and hundreds of thousands of Iraqi lives, we became mired in Afghanistan, Iran vastly expanded the number of centrifuges in its nuclear program, and North Korea expanded its arsenal of nuclear weapons. And much of the world came to despise us.

Yes, foreign policy is hard.  And no, the Bush/Cheney years - complete with not only the Iraq war, but the Bush-Putin Soul Gaze (tm) - weren't banner years for American foreign policy, either.  But "Bush was just as bad (or worse)" isn't a defense of President Obama.  It's just finger pointing and attention shifting.  President Obama's foreign policy has been a disaster, start to finish.  His very first major foreign policy decision was to abandon the Green Revolution to the tender mercy of the Basiji.  Hashtag diplomacy in Nigeria, leading from behind in Libya, Syrian peace conferences and red lines that amount to green lights to the Assad regime, the schizophrenic handling of Egypt, the Afghan timeline and feckless Iraqi withdrawal without a status of forces agreement - all of it has been a disaster.  America's standing in the world has fallen on President Obama's watch.  We are certainly no more loved than we were in the Bush days, and a lot less feared.  That's not a good combination.

And here's the final absurdity from Kristof:

Blowing things up is often satisfying, and Obama’s penchant for muddling along instead, with restraint, is hurting him politically. But that’s our weakness more than his. Obama’s foreign policy is far more deft — and less dangerous — than the public thinks, and he doesn’t deserve the harsh assessments. If there’s one thing we should have learned in the Bush/Cheney years, it’s that swagger and invasion are overrated as foreign policy instruments.

Because the only two options, apparently, are "blow stuff up" and "do nothing."  That false choice is at the heart of the Obama foreign policy debacle.  President Obama has defined his foreign policy ethos as "don't do stupid stuff."  But as Edmund Burke so eloquently pointed out, inaction has its own dangers.  The world today is suffering from them.