Thursday, August 07, 2014

Rule of Law and Memory

Megan McArdle has a good article about the reliability of memory in the context of the Obamacare Halbig case that held that federal subsidies are only available to those who sign up on state exchanges rather than through federal exchanges. Rule of law demands this interpretation.

People do forget and think they remember what did not happen. That is one reason I started this blog. We had begun the Long War and I wanted my views on record. This was my field. This was (is) important. For myself if for nobody else. I did not want to be free to say I always knew something would happen when no such certainty existed at the time. Let me be honest with myself, at least.

Which explains 12 years of blogging with a relatively small reach. This is really about me.

I will say that when I've discovered I've re-blogged an issue unaware I'd written before, I've been greatly satisfied that I often basically re-wrote the earlier post. Which means I have apparently succeeded in providing my reactions to events rather than trying to peddle a particular line. I may be right or wrong, but I don't really have a Karl Rove (peace be upon him) Implant to guide my writing.

On the forgetting front, staying honest with myself is important (perhaps this really is related to rule of law) because it has been greatly frustrating to me that so many on the left insist that the lack of chemical weapons in firing condition at the time we invaded Iraq in spring 2003 invalidates the justification for going to war to destroy the Saddam regime.

I have noted that we had many reasons and that faulty intelligence led us to emphasize just that one WMD reason. That is valid.

But what really gets me is that while those on the left now insist that lack of WMD invalidates the war, before the war they too believed Saddam had chemical weapons yet still opposed going to war. I suspect that faulty memories are at play rather than lies (to others or just themselves). Most in the public can't go back in time and read what they thought about an issue, as I can here. I stand by my reasons for war as written and still defend the war--and bitterly complain about walking away from that victory in 2011 and hope we can reverse our losses by re-engaging now.

I should search for early posts about Obamacare, but I suspect I won't find many because when the act was being passed and debated, I did not blog on domestic issues that might stray into my day job as a nonpartisan analyst for the state legislature. I had earned a good reputation and did not want to destroy it by blogging on issues I might have to work on. So sadly, my memory has to fill the gap.

I trust you will believe that my memories are sincere even if wrong. And on this, my memory is that the distinction between federal and state exchange subsidies was designed to encourage states to set up exchanges.

Remember, Dangling federal money to get a state to voluntarily do what the feds cannot compel is a long and common federal practice, so not out of line for me to believe.

Back to Halbig, McArdle writes something I strongly believe in rejecting Obamacare defenders' arguments that say that the interpretation is ludicrous:

The logic of this seems to be that Congress meant to pass a law that worked; this will make the law not work; therefore, this cannot have been congressional intent. As a friend points out, by this logic, Congress could have just written “ALL WORK AND NO PLAY MAKES JACK A DULL BOY” for 2,000 pages, and whatever the regulatory agencies did would be fine, because hey, Congress wanted the law to work.

But you cannot run a country that way. Nor do political parties get to take a mulligan and effectively rewrite the law because they screwed up the first time. There are very good reasons that we demand that agencies hew to the law that was passed, not the law as it should have been passed or the law as a hazily shining dream in the hearts and minds of the congressmen who voted for it.

What was ludicrous was ramming through a massive act and authority to write even more massive administrative law to create a massive government intervention in health care by ramming it through Congress without proper committee and public analysis. By God, we passed it without doing that and now we are finding out what is in it as once-Speaker Pelosi famously said. Sadly, the fog of memory has replaced the fog of partisanship.

The stakes are huge. Are we a nation of laws or not?

Sorry. This post covered a variety of barely related topics. But this blog really is about me, after all.