The ACA, AHCA and the CBO

Of Thee I Sing Heading AuthorsSo, America is getting a close-up look at the sausage-making spectacle we know as the U.S. bi-cameral legislative process. But at least we’re getting to see the spectacle this time around as the Republican-controlled Congress wrestles with the American Health Care Act (AHCA). This, of course is the attempted repeal and replacement of President Obama’s so-called Affordable Care Act (ACA).  The reader will recall the ACA was (is) the Act that Speaker (at the time) Pelosi proclaimed we could see AFTER congress passed it.  And pass it the Democrats did.

So, what have we finally learned about the ACA (aka ObamaCare). Well, for one thing the ACA is a seriously deteriorating, preexisting condition. It really is.  The only question is whether the intervention by Speaker Paul Ryan will produce a better healthcare alternative for the American people. We have our doubts, but continuing the ObamaCare course the nation is currently on really would constitute a type of governing malpractice.  We’ll hasten to stipulate that abrogating healthcare coverage for up to twenty-four million Americans, as the CBO projects will happen under the AHCA, would be an even worse case of governing malpractice. We’ll get to the CBO a bit further down in this essay.

When all is said and done, under the ACA, premium costs that were supposed to dramatically decrease by 2012 have, instead, dramatically increased as have deductibles. People who were assured they would be able to keep their doctors quickly learned they couldn’t necessarily do that as promised (no matter how much they liked him or her), nor could they necessarily keep the healthcare plan with which they were quite satisfied.

Worse, much worse, the Faustian bargain the insurance industry made with the Obama Administration is turning out to be what all Faustian bargains turn out to be—a disaster. The Obama Administration promised the insurance industry tens of millions of new customers. The problem is the government delivered a large preponderance of older, sicker, higher-cost customers and fewer younger, healthier customers whose low demand for service was supposed to invigorate insurance company income statements.

We’re sure there are many very bright people in the insurance business. We’re just not sure where they were when their industry signed on to supporting the ACA. The critical flaw in the ACA is that it created an actuarial breech of titanic proportions through which flooded a tide of red ink. If no one could be turned down or charged more because of illness including very nasty pre-existing conditions, why (one might ask) would young, healthy men and women or families pay for insurance before they got sick and needed it?

Not surprisingly, many health insurance companies got clobbered. Industry giant, Humana, seeing a flood of red ink flowing their way decided to withdraw entirely from its participation in the law. Aetna, also quickly began withdrawing from exchanges as has UnitedHealth and Humana.

And, speaking of insurance industry giants, there is the case of Anthem Inc. which announced just before the election last November, that it may join other major U.S. health insurers in largely pulling out of Obamacare markets by next year if its financial results under the program don’t improve.

Anthem’s retreat from the Affordable Care Act means that almost all the major American health insurers have substantially pulled back from the law. Hundreds of U.S. counties now must rely on only one insurer left in the marketplace.

Time will tell whether the AHCA (Trump/Ryan replacement bill) turns out to be the improvement President Trump has promised. There is much more that we don’t know than we do know because most of what eventually would become the AHCA hasn’t been drafted yet.

Most of what will be the final legislation has yet to be drafted because the current focus is on an initial phase that deals with aspects affecting the existing budget and subject to the arcane reconciliation process which only requires a simple majority to pass in the Senate which, presumably, the Republicans can muster. All of the nuts and bolts of the AHCA will follow the reconciliation phase and will, therefore, require a super majority of sixty votes in the Senate. That will involve a lot of arm twisting or as President Trump declared, “It’s a big, fat, beautiful negotiation. Hopefully we’ll come up with something that’s going to be really terrific.” Well, let’s hope.

Most of the details of what will be the final AHCA are unknown and largely unwritten at this time. Here’s what we do know.

The individual mandate in the ACA that requires individuals who can afford to buy insurance to do so or pay a penalty is eliminated in the AHCA and replaced with a “continuous coverage incentive” that would impose a 30 percent penalty for people who do not buy insurance until they are sick.

The employer mandate, as of this time, would be repealed.

Under the AHCA premium subsidies would be based on age rather than income.  Tax credits of $2,000 would be available in full to individuals under thirty earning less than $75,000 and households earnings less than $150,000.  The tax credit would be increased to $4,000 for people over sixty.

The ACA enabled states to expand Medicaid coverage by raising the eligibility cutoff to 138% of the federal poverty level. The AHCA would let states keep Medicaid expansion and allow states that expanded Medicaid to continue getting federal funding as they would have under the ACA until 2020. Federal funding under the AHCA for people who became newly eligible starting in 2020 or who left the program and came back would be reduced.

The AHCA would just about double the amount individuals or families could put into tax-free health savings accounts.

It seems to us that most of the other essential elements of the ACA are maintained in the AHCA.

Enter the CBO.

CBO (Congressional Budget Office) is a truly non-partisan agency responsible for estimating the budgetary impact of legislation. Some of its projections are pretty objective such as dollar inflows and outflows. Some are far more subjective such as estimating how people will behave given certain economic circumstances.

The Democrats and most of the press have made much of the recent CBO scoring of the AHCA. They’ve largely ignored the substantial objective projections of reductions in the federal deficit of nearly $340 billion over the next decade and the $1.2 trillion reduction in federal spending during the same period. Instead they have focused, almost deliriously, on the subjective projections of how people will behave, or more succinctly, how many will choose to buy insurance or not buy insurance in a more competitive marketplace which will be a key element of the final AHCA.

The CBO is projecting that 24 million fewer people will be covered by 2026. CBO projects the reductions in insurance coverage would result from changes in Medicaid enrollment, believing some states will discontinue their expansion of eligibility, and that some states that would have expanded eligibility in the future would choose not to continue, and per-enrollee spending in the program would be capped.

We suggest a bit more caution is warranted here regarding these subjective projections of individual and family participation in the AHCA. This is the same CBO that estimated that 21 million people would enroll in the ACA exchanges in 2016. Actually, closer to 10 million people enrolled. CBO estimates that 18 to19 million people will be enrolled in the ACA exchanges, but, in fact, enrollment is currently declining.

Our concern with the AHCA, at least with what we know of it, is that President Trump and Speaker Ryan are counting on very substantial reductions in premiums stemming from vastly increased competition as barriers that keep insurance companies from competing on a national basis are eliminated. Premium reductions must come, primarily, from lower reimbursements that insurance companies negotiate with hospitals and physicians for service. At some point, the insurance companies will have wrung just about everything they can out of hospitals and physicians. We’re not sure just how much room there is for further reductions and, thus, future premium savings through competition. These are costs that insurance companies can only mitigate so much. Health insurance premiums may not be as influenced by market-driven forces as the Administration thinks.

The Administration might want to temper its expressions of certainty regarding the social benefits of Adam Smith’s invisible hand theory of the social benefits of individual actions seeking what is in the individual’s best interest. On the other hand, the resist-at-any-cost faction should think more than twice about embracing a failing government healthcare program.

The opposition, even former President Obama, now acknowledges that the ACA needs to be fixed. They have, however, been no more forthcoming than the Republicans had been on how they would fix it.

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Trump’s Address to Congress: Time for Watchful Waiting.

Of Thee I Sing Heading AuthorsIt’s an interesting term, watchful waiting. In medicine, it is generally defined as a policy of taking no immediate action with respect to a situation or course of events but of following its development closely. Ironically, it has been used once to define American foreign policy with respect to, of all countries, Mexico. That was when Woodrow Wilson used watchful waiting to describe American policy towards Mexico in his State of the Union address, in December 1913. Mexico ‘s long revolution was still raging at the time.

We suggest that this is a good time to engage in some watchful waiting ourselves to determine whether President Trump has, indeed, become more presidential, having succeeded in delivering a, mostly, solid presidential address—mostly, but not entirely. There was a clear demagogic nod in his call for a new initiative which he named VOICE—an acronym for Victims Of Immigration Crime Engagement. The isolationist, anti-immigration sentiment is great enough in this country without creating a government entity to further whip those xenophobic flames. It’s very name is designed to do just that.

The response to President Trump’s address throughout the political spectrum, from left to right has, with some scattered dissension, been remarkably positive. Seventy percent of viewers described their reaction to the speech as positive according to a CNN-ORC (Opinion Research Corporation) poll. We watched the Twitter feed for much of the morning and the “tweets” were overwhelmingly positive.  This is rather telling, given that the Twittershpere is populated by individuals of all political stripes who simply engage in 140-character stream-of-consciousness communication. The stream was clearly flowing President Trump’s way.

One clinical psychologist we know opined that if Trump is, indeed, a narcissist the very positive reaction to his speech might well inform what he says, and, perhaps, what he does in the months and years ahead. If he is motivated by praise and approval, he may have just learned an important lesson.

He railed against job-crushing federal regulations, and has decreed that two regulations be eliminated for every one new regulation. While we think the President’s point regarding excess regulation is well taken, his formulaic answer (two regulations cut for each new regulation) may make for good political rhetoric, but makes little sense otherwise.

With respect to Obamacare, the President and the Republican leadership are somewhat akin to the dog that caught the car. What to do with the car—that’s the tricky part. The Trump Administration is committed to keeping everything that they say is good about Obamacare while doing away with the mandate that makes funding possible for what he says is good.  What is “the good” the Administration wants to preserve?  The coverage for pre-existing conditions, allowing kids to stay on their parent’s policies until they are twenty-six and making health insurance affordable for everyone. “The way to make health insurance available to everyone is to lower the cost of health insurance, and that is what we will do,” he promised. Fair enough and worth some watchful waiting.

Trump endorsed tax credits that would allow Americans to purchase health insurance, a proposal at which some House conservatives have balked, saying it would, in effect, create a huge new government subsidy. And it would, because the poor don’t earn enough to pay taxes or, therefore, to get a tax refund. That’s why we created the so-called refundable tax credit in which a credit is paid to the tax filer even though the filer did not earn enough to pay any federal income taxes.

Congress will also be asked to appropriate what President Trump referred to as “one of the largest increases in national defense spending in American history.” Fair enough.  If our armed forces have been depleted increased investment in defense is certainly warranted.

And everyone agrees that our infrastructure (roads, bridges, airports) requires massive investment.  We’re talking a Trillion here and a Trillion there. All in all, a very expensive, albeit necessary, array of investments.

We’ll need a lot of new money (tax revenue) to do that. Concurrently, President Trump said that his “economic team is developing historic tax reforms that will reduce the tax rate on our companies” and “provide massive tax relief for the middle class.”  All good stuff, but potentially a conundrum for balancing revenue inputs and investment outputs. Certainly, eliminating wasteful programs and regulations will contribute a lot. But eliminating wasteful spending won’t begin to cover the cost of the increased spending we’re about to undertake.

Enter “dynamic scoring.”

It is a safe assumption that when individuals, households or corporations suddenly have more money at their disposal they will, in some way, behave (economically speaking) differently. It is fair to assume that individuals and households will spend somewhat more, and that corporations will invest more, either in labor or capital improvements.  This change in behavior will, of course, result in a somewhat commensurate change in economic activity, which will, of course, result in a change (presumably an increase) in tax revenue to the government. So, the thinking goes, reducing tax rates should result in an increase in tax revenues. Actually, we agree. It seems to make perfect sense. The problem is predicting just what that change in behavior will be and just what increased economic activity will result from that change in behavior.

The reduction in tax rates will be a front-end certainty. The increased economic activity that will follow will be a back-end uncertainty. And the tax revenues that ultimately will flow to the government from that increased economic activity is a whopper of a back-end uncertainty. We’re not suggesting, at all, that the back-end benefit isn’t worth pursuing.  We are suggesting that neither we nor the Administration knows what the ultimate tax largess, if any, will be.

We were, on balance, somewhat encouraged by President Trump’s address. We’re far from ready to celebrate, but we, like most Americans, will wait…watchfully.

Hal’s books to read or to listen to: Barnes and Noble, Amazon, Kindle, Apple iTunes, and Audible.

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TRUMP’s Secret Weapon? Anti-Trump Excesses

Of Thee I Sing Heading AuthorsWe haven’t seen this much “movement politics” for a long time in America.  And the dominant movement in America today seems to be some variation of “Stop Trump” or “Dump Trump” or even “Impeach Trump.”  It’s no wonder. After all, President Trump is one of the most divisive public figures ever to occupy the White House.  We won’t reiterate all of President Trump’s perplexing qualities.  We’ve already done that in essay after essay.  Suffice it to say, we’re not Trump fans, and so far, we’ve seen little evidence that he’s about to make America Great Again. We haven’t seen this much dissension and resentment directed at an American president for a long time—but we have seen it before.

Enter Richard Milhous Nixon.

The Trump/Nixon comparison is quite instructive. Many readers of our essays certainly remember the anti-Nixon protests during the ill-fated president’s first term, when the national mood was in a state of extremis over Viet Nam.  Both presidents are (were) incredibly polarizing and both are (were) the target of massive, sometimes violent protests. Nixon came to power during the so-called Summer of Rage. If anything, the anti-Nixon protests were far more substantive than the anti-Trump protests. Most of the anti-Trump resentment stems from the fact that so many people consider him to be spectacularly unpresidential and unqualified for the job, and a bully, a chauvinist, a demagogue, and, well, a boor. And, yes, many people think he’s down-right dangerous, and there’s the well-deserved furor over his bungling of an ill-advised immigration executive order.

But Nixon hatred was different. After all, nearly 21,000 young Americans had died in Vietnam during Nixon’s first term in office. There was the bombing of Cambodia and the horror at Kent State right in the middle of his first term.

The Watergate caper also unfolded (although not completely) during Nixon’s first term, and senior members of his Administration were implicated in the break in. Think for a moment of the news during the months leading right up to the presidential election in 1972.  There was a series of events that would have cratered anyone’s hope of being elected to anything. On June 17, 1972, four months before the election, five men, one of whom said he used to work for the CIA, were arrested at 2:30 a.m. trying to bug the offices of the Democratic National Committee at the Watergate Hotel and office complex in Washington. On June 19th, a GOP security aide was found to be among the Watergate burglars.  On August 1st a $25,000 cashier’s check, apparently earmarked for the Nixon campaign, wound up in the bank account of a Watergate burglar. On September 29th, John Mitchell, while serving as attorney general, was found to have controlled a secret Republican fund used to finance widespread intelligence-gathering operations against the Democrats, and on October 10th FBI agents established that the Watergate break-in stemmed from a massive campaign of political spying and sabotage conducted on behalf of the Nixon reelection campaign. In the same month, a federal jury indicted the five Watergate burglars along with G. Gordon Liddy, General Counsel to the Committee to Re-elect the President, and former CIA agent E. Howard Hunt for conspiracy, burglary, and a violation of federal wiretapping laws.

What skullduggery emanating from the Nixon White House!

And then, a month later, on November 7th, Richard M. Nixon was reelected in one of the largest landslides in American political history taking more than 60 percent of the vote.  Huh?

Remember the so-called silent majority. On the heels of a major nationwide protest against the Vietnam War in October 1969, Nixon delivered a speech on November 3, laying out his plans for ending the war through diplomatic negotiations and asking for the support of the “great silent majority” of Americans.

There is, of course, a great silent majority. They certainly don’t seem to talk to pollsters, anyway. Ordinarily, we would bet the great silent majority would be getting very antsy about President Trump even though they voted for him in the States that mattered. But that silent majority doesn’t seem to like the roar of an angry crowd…any roar…any crowd. That’s why they’re the silent majority, and the roar and the hyperbole and the talk of impeachment (in the absence of any discernible impeachable offense) is apt to backfire on those who want Trump out. Remember, we’re not in the circus atmosphere of a presidential campaign anymore. We’re in the reality of a presidency.

Many of the anti-Trump proponents seem to think that a Trump impeachment is already a conclusion merely awaiting the right presidential misstep. Probably not likely.  There have been many very unpopular presidents. James Buchanan, Andrew Johnson, Franklin D. Pierce, Warren G. Harding and Millard Fillmore come immediately to mind, but none were turned out of office. Johnson, however, did come pretty close.

Article II, Section 4, of the Constitution, the impeachment clause, says a President can only be impeached for “Treason, Bribery and other high Crimes and Misdemeanors.” So being a jerk, or just being nasty, or insulting the press doesn’t seem to be impeachable. In fact, neither is incompetence.  James Madison successfully argued against making “maladministration” a cause for impeachment. One could argue that section 4 of the 25th Amendment which provides for the removal of the President in the case of  death, removal, resignation or incapacitation, is relevant. It isn’t!

We also do not think the much touted “Emoluments Clause” is going to undo President Trump. That’s the clause that states that “No Title  of Nobility shall be granted by the Unite States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”

So let’s get back to reality. People are going to watch protests and the selective TV and newspaper shots of isolated violence, and they will see and hear the rhetorical excesses.  Statements by talking heads and some editorial writers that the Flynn-Russian conversations are the biggest scandal since Watergate (quite possibly not scandalous at all other than Flynn’s lack of candor with the Vice President), or that the Flynn-Russian conversations are the political equivalent of 9/11 (ridiculous) are, quite possibly, assuring a Republican romp in 2018 and the re-election of President Trump in 2020. Many of the people who hate Trump revel in this type of hyperbole. Many more, we would bet, recoil at it.

There is one other thing we think the anti-Trump people should keep in mind. Americans have, traditionally, maintained a rather curious, but admirable, sense of fair play. That’s why the birther movement never resonated with the American mainstream. Similarly, a Quinnipiac University poll conducted last summer demonstrated that two-thirds of Americans believed the Libertarian candidate Gary Johnson should have been allowed to participate in the Republican Primary debates even though the same two-thirds said they would never vote for him.

We Americans seem to like our politics to be rough and tumble.  We also, from time to time, seem to be quite capable of drawing a line in the sand. That’s why President Obama had no problem winning in 2012. The birther issue probably won him more votes than it cost him.  So, we would bet, did accusations that he was a closet Muslim or some kind of Manchurian candidate. This suggests to us that over-reaching and engaging in hyper-caffeinated rhetoric can, and probably will, backfire. We’ve seen it happen before.  It is likely to happen again.

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Trump’s justification for failed Ban: I’ve Got a Secret

Of Thee I Sing Heading AuthorsThat’s the message the President relayed to the American people when he stated, “I’ve learned a lot in the last two weeks, and terrorism is a far greater threat than the people of our country understand, but we’re gonna take care of it.”

When all was said and done, that was the heart of the President’s argument before the Federal 9th Circuit Court justifying the ban. President Trump’s attorneys could have filed a sealed brief with the court specifying the specific evidence of a threat to our national security that necessitated the ban on travel from the seven Muslim-majority countries, but they didn’t. They didn’t think they had to, and maybe we’ll ultimately find that they may be right.

Few people would argue with the broad powers the President is given in the case of a national emergency, or a substantial threat to our national security. Giving the President the unfettered authority to do whatever he wants to do in the name of national security, however, is another matter. The President should be prepared to demonstrate, albeit in confidence if necessary, some evidence that there is a relationship between the threat and the action with which he seeks to mitigate that threat. Otherwise, the president—any president, can, on a whim, transform our government into an autocracy simply by declaring that a national emergency exists without offering any evidence that such an emergency necessitates the action he or she seeks to take.

Having listened to the arguments from both sides before the 9th Circuit Court, and having read opinions that support the Government’s position and those that support the Court’s decision, we recognize that this is one of those constitutional issues that could, ultimately, be decided either way.

We have, in the recent past, taken particular issue with the position of the Trump Administration that the United States does not adequately screen prospective refugees. That simply is not true. Refugees from these seven countries, and all other countries, are arduously screened. It generally takes years to enter this country as a refugee. Refugees from Muslim countries are, invariably, fleeing from the very regimes that threaten us.

The real issue, beyond the constitutional question, is whether a threat exists from immigrants or refugees from the seven countries subject to the ban that justifies the President’s Executive Order. That, to us, is more relevant than the fine points of constitutional law.

Alex Nowrasteh, an immigration specialist at the libertarian CATO institute, has compiled a list of every country from which foreign nationals have killed Americans on American soil. It’s quite revealing—2369 Americans have been killed on American soil by terrorists from Saudi Arabia, 314 killed by terrorists from the United Arab Emirates, 162 killed by Egyptian terrorists, 159 by terrorists from Lebanon, 6 by terrorists from Kuwait, 3 by terrorists from Cuba, 3 by terrorists from Kyrgyzstan, 3 by terrorists from Pakistan, 2 by terrorists from Palestine, 1 from Armenia, 1 from Croatia, 1 from Taiwan and 1 from Trinadad and Tobago, but NONE from the countries subject to the ban.

Furthermore, only three Americans have ever been killed by refugees—THREE, and those three refugees were from Cuba and that was in the 1970’s.

One particular aspect of the 9th circuit court hearing was, to us, particularly fascinating. The Justice Department’s lawyer, August Flentje, seemed to argue that a national emergency or threat necessitated the Executive Order, even though no evidence was offered to demonstrate such an emergency or threat. He then stated that the President’s decision that an emergency justified the seven-nation ban and the suspension of the settlement of refugees into the United States was not reviewable by the court. The court, he argued, could only review the correctness of the form of the brief—that it was “facially” in order. In other words, when President Trump (or any president) determines that there is a national emergency or a threat to the nation’s security, his judgment and his action, thereafter, is not subject to judicial review.

Jessica Levinson, a Loyala Law School professor and a critic of the executive order, argued that the court needed to send the message that the president should not be “un-reviewable” — especially for an order considered by many to be a “Muslim ban.”

University of California law professor and former Bush attorney John C. Yoo concurred, stating, “they should have lost. The order was done badly, The government badly defended it in court by claiming the 9th Circuit couldn’t even review the executive order.” Yoo said the ruling was a well warranted rebuke.

Here President Trump’s habit of speaking hyperbolically and, not infrequently, inaccurately if not untruthfully, has put him in a difficult position to argue for unfettered power simply by declaring the existence of a national emergency or a threat to our security. While President Trump may ultimately be found to have the legal authority to take such action without review by the courts, he doesn’t have the credibility to take such action given his record of wild and fanciful tweets and allegations.

American Presidents do have, and do need, the power to take drastic action in the face of a national emergency. It is an awesome power we give to our presidents. And it is a power that has been abused in the past. It did not take an Act of Congress for the Roosevelt Administration to, essentially, incarcerate over 100,000 loyal American citizens following Japan’s attack on Peril Harbor simply because they were of Japanese ancestry. This was done with the wave of a pen by President Roosevelt when he signed Executive Order 9066. He simply signed an order and tens of thousands of Americans were rounded up and locked away for years. Today, we recognize that Roosevelt’s executive order was wrongheaded and based on little more than war hysteria, with a healthy dose of racism thrown in.

It isn’t asking too much for President Trump to offer to the court, under seal if necessary, some evidence that a draconian executive order is justified. Hinting in a speech that he’s learned a lot in the past two weeks about the threats facing the nation isn’t sufficient. President Trump, in particular, has to offer the courts more than “I’ve got a secret.”

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Embrace Immigrants As Though America Needs Them

Of Thee I Sing Heading AuthorsBecause we really do.

No, we’re not talking about the work no one wants to do. We’re talking about the creation of work everyone wants to do.

I had the privilege once again this year of working with Bret Stephens at the superb Rancho Mirage Writer’s Festival. Stephens is a Pulitzer-prize winning journalist and the Wall Street Journal foreign-affairs columnist and deputy editor of the Journal’s editorial pages.

Bret shared a bit of his family’s history with the audience. His mother was an immigrant who arrived in America in 1950, as an impoverished, ten-year-old child, a displaced person who had survived the ravages of World War Two. His grandparents had fled the Bolsheviks in Russia and the Nazis in Germany. His mother was born in Fascist Italy in 1940. Sixty-three years later she accompanied her son, Bret, when he received his Pulitzer Prize at a ceremony at Columbia University.

Stephens delivered the keynote address on the first night of the Writers Festival. President Trump had just signed the Executive Order, essentially, banning Muslims from seven countries from immigrating as refugees to the United States, an order that has just been stayed by a federal Judge as we go to press.

Those who had been barred from entering the United States were all refugees who had been previously vetted and approved by our government. Stephens tore up his prepared remarks and, instead, addressed the role immigrants have played in the great American success story.  Rarely, have I ever witnessed an audience as spellbound as was this gathering listening to this son of an immigrant.

Stephens reminded his audience that the United States has won approximately 40% of all the Nobel Prizes ever awarded, and 30% of America’s Nobel prizes were won by first generation immigrants—foreign born scientists, statesman and writers, including refugees like Henry Kissinger or chemistry Nobelist Martin Karplus, after whom the Karptlus equation is named which describes the chemical basis of proton nuclear magnetic resonance spectroscopy.

Of the Fortune 500 companies, 90 were founded by immigrants and another 114 by the children of immigrants. Stephens named as examples Sergei Brin of Google, Andy Grove of Intel, Daniel Aaron of Comcast. These immigrants or sons of immigrants created enterprises with accumulated combined revenues of trillions, which is more than the GDP of most countries in the world, and, of course, they employ tens of thousands, and the industries that their ingenuity has made possible employ millions.

Stephens, of course, was just scratching the surface.

In fact, Fortune 500 companies, founded by immigrants employed 3.6 million workers worldwide in 2011, and produced $1.7 trillion in revenues the year before, according to the Partnership for A New American Economy.

A report published in 2010 found that immigrants are more than twice as likely start a business as someone born in America. In fact, one in ten American workers were employed by immigrant-run businesses

According to a recent report by the National Foundation for American Policy, immigrants have started more than half (44 of 87) of America’s startup companies valued at $1 billion dollars or more and are key members of management or product development teams in over 70 percent (62 of 87) of these start-up companies. According to the report, immigrant-founded start-up companies in America worth more than a billion dollars today have created an average of 760 jobs per company. The collective value of the 44 immigrant-founded start-up companies studied is $168 billion, which approximates about half the value of the stock markets of Russia or Mexico.

Stephens concluded his address by asking a series of questions that every civics teacher (we presume schools still teach civics) should ponder. These are the questions, the answers to which will define whether America’s future will be defined by growth, prosperity and equality or the fading embers of a once great nation.

1) What is our attitude toward foreigners? Are we a country that seeks and attracts immigrants, or do we see them as threats to our culture, economy and security?

2) What is our attitude toward failure? When we fail, do we tend to first blame ourselves and ask, ‘How can we make this right’? Or do we blame others, and adopt the attitude of ‘who did this to us’?

3) What is our attitude toward global leadership? Do we put our values first, as we did when we saved West Berlin, and then define our interests accordingly? Or do we put our “interests” first, in the sense of what’s materially good for us irrespective of values? In other words, do we believe in leading the world so that all may benefit from that leadership, or do we think, “America First”?

4) What is our attitude toward change? Do we believe in and foster innovation? Or do we strangle it through regulation? Do we believe in the value of free trade, acknowledging that the inevitable costs are outpaced by the larger benefits?

5) What is our attitude toward each other? Do we have a healthy civic culture in which we can respect each other’s different opinions, and do we respect bedrock institutions like a free press, that are so essential to the well-being of democracy? Or do we tear ourselves apart by an increasingly cynical and combative attitude toward these institutions?

6) What is our attitude toward the future? Do we see America’s prospects as fundamentally bright? Or will we be a pessimistic nation, fearful about the world and doubtful of our abilities to master the challenges before us?

Stephens concluded his keynote with a prediction. He predicted in the year 2037—20 years from now, that the child of one of the people in the hotel clean-up crew would be speaking at the Rancho Mirage Writers Festival, and that we would all be proud to call him or her our fellow American.

The audience cheered.

Hal Gershowitz’s novels about immigrants available at Barnes and Noble, Amazon, Kindle, Apple iTunes and Audible.

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Trump: Making America Afraid Again.

Of Thee I Sing Heading AuthorsNo, no, we’re not talking afraid like – shaking in our boots, afraid (although many refugees and asylum seekers are, no doubt, probably shaking in their boots). No, we’re talking afraid like – we’re afraid this is not going well, afraid.

There is much about which to be concerned. President Trump has banned, for the next 90 days, Muslims from seven nations from entering the United States.  At the same time, he has indefinitely blocked all Syrians from coming here, even though there has never been an attack on American soil by anyone from Syria. In other words, he has closed America to millions of Muslims who are fleeing Islamic terrorism. The President’s Executive Order also requires that people from the seven countries who were in transit seeking asylum and those with valid visas also be detained or turned away.

While President Trump claims this measure is meant to protect the homeland, the White House offered no evidence that existing screening programs are not working. There have been no attacks in the United States perpetrated by nationals from the seven nations listed in Friday’s order, although at one point or another, each of these nations has been included on the State Department’s list of state sponsors of terrorism. Ironically, there have been attacks on American soil by terrorists from Muslim-majority countries that are not on the President’s list.

Blocking the entry into our country of refugees who have already been processed, vetted and approved is a farce. And a cruel one at that. Candidate Trump enjoyed a lot of campaign mileage exclaiming that “we’re letting in thousands of refugees and we don’t know anything about them.”  That’s much more than an alternate fact. That’s simply a lie.

Men, women and children fleeing for their lives, and who have completed a long and arduous screening process (often taking years), and who finally received approval to enter the United States, and who booked flights, and obtained tickets, had the door to America slammed in their collective faces.  All this so that President Trump could keep a campaign promise that was campaign blather to begin with. We do not allow refugees into our country willy nilly. Obtaining refugee status for entry into the United States is a tough, grueling process.

Aside from the stress caused to an already horribly stressed swath of humanity, slamming the door shut on these hapless refugees represents a boon to the Islamists who are at war with us. They are, right now, busily promoting the ban as proof of the contempt America has for Muslims. This alone will probably cause more attacks against Americans than the President’s Executive Order will stop.

The suspension of entry was sloppily communicated to those who had to enforce the ill-advised suspension, causing confusion at every entry point. The facile excuse isn’t credible that previously cleared refugees with valid visas could not be warned of the impending Executive Order in advance because once word got out they (we presume ISIS) would immediately send us their bad ones before we could stop them. This lame explanation of the sloppiness of the suspension demonstrates mind-blowing ignorance. The bad guys can’t just load up flights with their henchmen and claim they are refugees. The system just doesn’t work that way.  No one could have boarded those flights as refugees, without having gone through the long process that confirms they are, in fact, legitimate refugees.  It was all theater, and theater of the absurd at that.  Citizens of many countries can legally fly into the United States any time they want, regardless of where they were born or, regardless of course, of their religion.

While it is true that the seven listed nations have, at one point or another, been included on the State Department’s list of state sponsors of terrorism, discriminating against men, women and children who are fleeing from those very nations makes little sense.

Then there is the matter of the Trump Administration’s war with the press. Kellyanne Conway, appearing on Fox’s Chris Mathews show last Sunday continued the Trump rant about our dishonest press, which she is certainly entitled to do.  But we find it troubling to have a senior White House official demanding to know why no “dishonest” editorial writers or bloggers have not been let go, or who will be the first “dishonest” writer to be fired, and then punctuating her displeasure by declaring “we know their names.”  This, to us, is chilling language and we suspect it was meant to be chilling.

On more than one occasion in our history various forms of anti-sedition legislation have been introduced and enacted to suppress the press during times of national distress.  We doubt anti-sedition legislation such as that which was enacted in 1798, 1918 or as recently as 1940 would be found constitutional today. American writers, editors and publishers have, however, been imprisoned in the past for criticizing the government or the President, and we find complaints from White House officials that reporters and editorial writers haven’t been fired to be a troubling reminder of a darker time.  Yes, for sure, journalists have an obligation to be truthful to the American public.  Then again, so does the President.

And then there was the International Holocaust Remembrance Day contretemps. President Trump failed to mention in his message that the Holocaust (capital H) is the name given to the systematic murder of all Jews who fell into Nazi hands anywhere in Europe.  At best it was a forgivable oversight at the hands of neophyte White House personnel who didn’t know any better—in which case a simple “we regret the oversight” would have been sufficient.  At worst, it was a deliberate Bannonite decision to alter the vital historical lessons of the Holocaust.

Frankly we were, initially, inclined to assume that the omission of Jewish victimization at the hands of the Nazis was a sad, but a feasible and a forgivable oversight. But, sadly, the White House doubled down on its decision to omit any reference to Jews as victims.

Winston Churchill once described the fate of the Jews of Europe as a crime without a name.  Today, that crime has a name.  It is The Holocaust. The Holocaust, that crime that has now had a name for over seventy years, refers to the systematic, exquisitely planned, doggedly implemented and nearly successful annihilation of European Jewry by Germany’s Nazi regime. Our country, to its everlasting credit, considers the lessons to be learned from this genocide to be so important it enshrined that mission at the national mall in Washington DC with the establishment of The United States Holocaust Memorial Museum.  We suggest President Trump and his key staff make it a point to visit the Museum as every President has done since its opening nearly a quarter century ago.

The miscue could have been merely an unfortunate, but correctable, blunder.  Instead the White House continued (as it has proven prone to do) with its vacuous explanations. It said Jews had been omitted from the statement on purpose because other victims also suffered and died in The Holocaust. No, they didn’t. Non-Jews died, just as tragically, because they were also victims of mankind’s greatest brutality. But the Nazi effort to gas or shoot every Jew in Europe (an effort that came horribly close to succeeding) is precisely what The Holocaust is, and it is nothing else. Holocaust deniers always admit Jews died at the hands of the Nazis, but they add so did a lot of other people. So, the deniers say,  there never was a Holocaust aimed at Jews in particular. White House stubbornness transformed what may have simply been staff ineptitude into soft-core Holocaust denial.

Finally, President Trump last night nominated Neil Gorsuch of Colorado to the Supreme Court of the United States. Judge Gorsuch is a well-respected Judge who is known for writing eloquent Court decisions.  He has never decided an abortion case, nor has he had much to say about a woman’s right to choose. He is, however, a strong originalist, believing that voters and not the courtroom should decide “social policy,” and many believe he would vote to overturn Roe v. Wade, the decision that has, for nearly fifty years entrusted pregnant woman with the decision to continue or terminate a pregnancy during the first trimester. We hasten to repeat that judge Gorsuch has no actual record on this issue, but President Trump has vowed to appoint supreme court justices who are opposed to Roe v. Wade.

Many are afraid this isn’t going to turn out well for those who believe that a woman’s right to choose, is consistent with any American’s right to privacy—a right that the courts have held was secured by the ninth Amendment of the Bill of Rights. While the Constitution contains no express right to privacy, the Bill of Rights reflects the concerns of James Madison and the other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), the privacy of the home against demands that it be used to house soldiers (3rd Amendment), the privacy of the person and possessions as against unreasonable searches (4th Amendment) and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information.  Most importantly, the ninth Amendment specifically states that the enumeration of certain rights in the Bill of Rights shall not be construed to deny or disparage other rights retained by the people.

So, is a woman’s right to make her own decision about pregnancy as assured by Roe v Wade consistent with every American’s right to privacy under the ninth Amendment? We’re afraid we’ll have to wait to see.

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Today’s Inaugural Ceremony: As Important as The First Inaugural 228 Years Ago.

Of Thee I Sing Heading AuthorsNo, we’re not comparing President-Elect Donald Trump to President George Washington.  Readers of these essays know we were not supporters of Donald Trump’s candidacy, nor have we had great confidence that President-Elect Trump will go on to become one of America’s great presidents. We do, however, fervently hope we are wrong, and that his presidency does, indeed, achieve a stronger, fairer America—an America largely at peace with itself and a world less antagonized by vicious conflict and sectarian warfare.  As of tomorrow, at noon, Donald Trump will become the legally and legitimately elected President of the United States.

The brief inaugural ceremony that will take tomorrow is of enormous historical significance. It is akin to that proverbial gear shifting somewhere in the universe after which some things are never the same; the hyphenated President-Elect instantly transforms simply into President, and the responsibilities of executive leadership in America rest with a new leader. The brief, but almost magical ceremony represents the most consistent peaceful transfer of power the world has ever known. It, the inaugural process, is to be celebrated.

Many in America are not happy that Donald Trump is about to become their President.  Many profess that he will never be their President. But he is and he will be.

We have no particular problem with anyone, including members of congress, skipping the inauguration. It is wrongheaded but it is their right. This is, after all, America. We do not parade, like dancing bears, anyone into public view to pay homage to our elected leaders. The absence of members of congress and others will demonstrate their utter disregard for the new president. It will also demonstrate their utter disregard for a grand, historic and consequential American tradition, but dissent is certainly their right, and there will be plenty of dissention.

Disruption, however, is not anyone’s right. The twentieth amendment to the Constitution fixes the date and time of the beginning of a new president’s term and the end of a sitting presidents term as January 20th at noon, following the national election the previous November. Intentionally engaging in activity to disrupt the administering of the oath of office is, in our judgment, a protest gone too far.

There is nothing new about members of Congress or other government officials refusing to attend the inauguration of a President. Indeed, President John Quincy Adams refused to attend the inauguration of his successor, Andrew Jackson, in 1829.

Actually, there are interesting similarities between the two elections. Andrew Jackson was the first populist elected president. Jackson was also the first non-Virginian with the exception of John Adams and his son John Quincy to be elected President, and Jackson was the first President with no connection to the founders or, for that matter, to the original thirteen colonies. Jackson, like Trump, garnered  immense support outside of any sort of political establishment. He, like Trump, was the ultimate outsider.

The animosity directed at Jackson from his opponent, John Quincy Adams and from his opponent’s supporters was immense. As is true of Trump a large swath of Congress also refused to attend the new president’s inauguration.

As stated earlier, we don’t believe the “no-shows” are of much significance. Following the inauguration, they may even be of less significance. They place a higher value on giving the new president a cold shoulder that they place on honoring the American inaugural tradition, and that is absolutely their right and their choice to make.

Similarly, we take no particular issue with those who wish to protest or show their displeasure with the choice our nation has made.  There will be protests of dissent in Washington and cities throughout the country and that’s okay.  That’s as American as apple pie.

We take a different view, however,  of those who are planning to come to Washington, not determined to dissent, but, instead, determined to disrupt the Inauguration of our 45h President. The internet is rife with calls for absolute disruption, and if the organizers can’t stop the inauguration they are determined to drive the inauguration behind closed doors.  More ominously, they seem determined to foment violence to assure that domestic and international viewership sees disorder, if not violence, on the streets of Washington, D.C., and in other American cities. They want television screens across America and across the world to show split screens with images of the cherished American inaugural ceremony concurrently sullied and shared with violent protest.

The National Park Service has granted dozens of permits to demonstrate in Washington today, and is expecting more than 350,000 protesters. Of those, about 200,000 will be participating in the Women’s March on Washington tomorrow. And make no mistake about it, their right to protest is as hallowed as the inaugural itself.

But those who travel to Washington to disrupt the inauguration of the President are not the patriots they pretend to be. Far from it. They are vandals at best, and anarchists at worst.

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The Death of Truth

Of Thee I Sing Heading AuthorsTruth is dead…long live the narrative.

We have a very serious and destructive problem in America. Yes, we know, we have many.  But this one is different because it is widely tolerated and, sadly, carefully nurtured by our nation’s leadership regardless of party. Truth has become one of the lowest coins in the realm.  The narrative, carefully conceived, studiously nurtured, and determinedly communicated has, it seems, become the highest coin of the realm.

The concocted narrative takes on meme-like strength as it is transmitted throughout society, gaining momentum, confusing our national comprehension, sullying debate and devaluing the stuff of good judgment and good citizenship. It is the harbinger of divisiveness and it threatens much of what made America great. The lie, skillfully repackaged as the established narrative has become acceptable, even when few are fooled by it.

Early in the Obama Administration, the White House staff warned President Obama not to tell the nation that the Patient Protection and Affordable Care Act (Obamacare) would allow the people to keep their doctor if they liked him or her, and that they could keep their health insurance plan if they liked it. They urged him not to tell Americans that insurance premiums would fall by $2400 during his first term in office. They told him that wouldn’t be true. But the truth didn’t fit the well concocted narrative so the narrative trumped the truth.

Then consider President-Elect Trump’s pronouncement that, “In addition to winning the electoral college in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.” Both claims are preposterous.  In fact, in terms of electoral college wins, Trump’s election ranks 46th out of 58 electoral college contests. Nonetheless, a landslide, it seems, comports with his perception of his own popularity, so a landslide it is. Also, there is of course not a scintilla of evidence of any measurable vote fraud, let alone “the millions of people who voted illegally.”

A carefully crafted narrative, repeated ad nausiam by democrats for the past six years is that Senate Majority Leader Mitch McConnell announced at the beginning of the Obama presidency that his goal (and that of the Republicans) would be to assure that Obama would fail and that he would become a one-term president. President Obama himself stated, “When I first came into office, the head of the Senate Republicans said, ‘my number one priority is making sure president Obama’s a one-term president.”

Democrat Senator Richard Durbin intoned in September of 2012,  “…The senator from Kentucky announced at the beginning, four years ago, exactly what his strategy would be. He said, his number one goal was to make sure that Barack Obama was a one-term president.”

The allegation that McConnell’s stated “from day one” that his goal was to make sure President Obama would be a one-term president has been a democratic drum beat for years.

McConnell’s alleged declaration of war against President Obama has been repeated over and over again.  This past Sunday on CBS’s  Face The Nation, New Jersey Senator Corey Booker was the latest to echo the McConnell narrative saying, “When he, (Obama) came into position when America was in a financial freefall, there was a crisis all over this country, he (McConnell) announced to America that the number one priority he had was keeping President Obama from getting a second term.  That is irresponsible. And that is dangerous.”

Well, McConnell didn’t make that statement when President Obama was first elected to office in 2008.  In fact, it was two years later following the mid-term elections ending the Democrats control of the White House, the House of Representatives and the US Senate.  That was a two-year period when President Obama pretty much stiff-armed the Republicans, intoning that elections have consequences.  We won. You lost. He had used his control of both houses to successfully push through Obamacare without a single Republican vote.

McConnell’s remarks were actually made in an interview with the National Journal on Oct. 23, 2010 — nearly two years after Obama was elected president. The interview took place on the eve the of the midterm elections. McConnell said,The single most important thing we want to achieve is for President Obama to be a one-term president.”

When asked if that meant constant confrontation with the President, MConnell responded, “ If he’s willing to meet us halfway on some of the biggest issues, it’s not inappropriate for us to do business with him. McConnell went on to say in that same interview that he does “not want the president to fail” and cooperation was possible “if he’s willing to meet us halfway on some of the biggest issues.” McConnell in fact cited an extension of the Bush tax cuts as an example of where the Republicans and the White House could cooperate — and, in fact, Obama did strike such a deal with Republicans shortly after the midterm elections.

Here is what the liberal Washington Post had to say about the endlessly repeated accusation that McConnell had stated from day one that his goal was to make sure Obama was a one-term President.

There is no doubt that McConnell said he wanted to make Obama a one-term president. But he did not say it at the start of Obama’s term; instead, he made his comments at the midpoint, after Obama had enacted many of his preferred policies. Perhaps, in Obama’s memory, McConnell was always uncooperative. But that does not give him and other Democrats the license to rearrange the chronology to suit the party’s talking points.”

During the presidential election campaign President-Elect Trump stated, repeatedly, that he had opposed the war in Iraq. Yet the only public statement on record was that he, in fact, supported the war in Iraq.  His first public statement expressing his opposition to the war was more than a year after the invasion, when opposition to a war gone badly was rather widespread.

We could go on.  There was President Obama’s assurance that many people had been fired at the Department of Veterans Affairs following 2014 scandal over manipulated wait-time data that contributed to the deaths of veterans. But, in fact at the time the President assured the public that heads had rolled, only one senior executive had been removed.

Hillary Clinton responded to questions about whether she had told the truth to the American people about her use of a private server by stating “Director Comey said my answers were truthful, and what I’ve said is consistent with what I have told the American people.  That, of course, was simply not true.  What Director Comey said was that she had not lied to the FBI. He did not say she had not lied to the American people.

Now we, of course, understand that politicians are not generally known for their candor. But the extent of unrelenting falsehoods uttered by our highest public officials seems, to us, to be unprecedented and, more worrisome, remarkably tolerated by the public. This does not auger well for the future of constructive discourse in America.

As Benjamin Franklin wrote, “Half a truth is often a great lie.”

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Obama, Kerry, the UN and Our Post-Factual World

Of Thee I Sing Heading AuthorsIt seems everyone is doing it—even President Barack Obama and our Secretary of State, John Kerry. It’s almost Orwellian.  Truth is devalued like so much roadside flotsam.  Say something often enough and stridently enough and the words become truth, no matter how ridiculous the utterance. Where have we heard that theory before?

So, according to the US-supported UN Security Council Resolution 2334, Israeli settlements are the paramount obstacle to peace in that part of the Middle East between the West Bank of the Jordan River and the line where the infant Israeli nation stopped the invasion of four Arab nations nearly seven decades ago—the so called pre-67 border (the land Israelis and biblical scholars call Judea and Samaria).

One needn’t be a proponent of settlements on the West Bank (we’re not) to be offended by such an assertion. Reality contradicts the assertion.

Reality was the original League of Nations Mandate (Mandate Palestine) later subsumed by the United Nations recognizing the so-called West Bank as inclusive of a new Jewish Homeland that would exist among other religious identities.

Reality was the acceptance by Israel of the 1947 UN partition plan, which replaced the Mandate and the simultaneous rejection of the partition plan by the Arab nations.

Reality was a vicious war of annihilation in 1948 launched by four Arab nations, terminating the UN partition designed to create a Jewish and an Arab state in what had been Mandate Palestine.

Reality was the expulsion of all Jewish residents of Jerusalem’s ancient Jewish quarter by Jordanian troops in 1948 and the subsequent recapture of the entire city by Israel in 1967.

Reality was the pillaging and destruction by Jordanian troops of historic Jewish religious sites in the old Jewish quarter (the quarter the UN resolution calls “occupied territory”).

Reality was the destruction of ancient Jewish graves on the Mount of Olives.

Reality is the world’s misapplication of Article Forty-nine of the Fourth Geneva Convention, rendering Jewish settlements illegal for the first time. There has, in fact, been no forced transfer of populations into or out of the West Bank.

Reality was the Palestinian Authority secretly forging a unity government with Hamas, which controls 40% of the Palestinian population, while simultaneously “negotiating” a peace deal with Israel.

Reality is the Hamas Charter which demands the destruction of Israel and the murder of all Jews

Reality was PA Chairman Yasser Arafat scuttling peace talks in 2000, and admitting to President Bill Clinton that agreeing to peace with Israel would cost him his life. This was after Israeli Prime Minister Ehud Barak surprised Arafat by, essentially, agreeing to two states on either side of the ’67 lines with land swaps to adjust the border to compensate for Israeli settlements along the border. Prime Minister Barak also agreed that Jerusalem would serve as the capital of both nations.

Reality was the unilateral withdrawal of Israeli settlements from Gaza over a decade ago, which resulted in the launching of tens of thousands of Hamas rockets from Gaza aimed at Israeli towns and villages.

Reality was Palestinian Authority Chairman Abbas declaring that no Jewish communities would be allowed in a West Bank Palestinian State.

Reality was the Jewish communities that had once thrived on the West Bank throughout history.

We are not suggesting that we endorse Jewish settlements on the West Bank, or that we oppose a two-state resolution of this intractable dispute. We have strong reservations regarding the incorporation of a large, antagonistic, Palestinian population into territory perpetually controlled by Israel.  But the list of obstacles is long to an eventual two-state resolution of the conflict. Rejectionist voices are strong on both sides of this dispute.

Given that this disputed land has never belonged to any nation state other than, arguably, the Ottoman Turks (who, incidentally, welcomed Jewish settlement) referring to it as occupied land is ludicrous. The West Bank has been controlled by Jordan, Egypt, England and, today, Israel. Article Forty-Nine of the Fourth Geneva Convention does not comport with the circumstances on the ground on the West Bank. This has been disputed land since the end of the British Mandate, and, if anything, the British Mandate encouraged and anticipated Jewish presence on this land.  While the UN effectively replaced Mandate formulation with partition, the Arab nations clearly and resolutely rejected partition.  Only Israel accepted the UN partition plan. Israel controls the West Bank, because Israel was unsuccessfully attacked from the West Bank. Israel has always agreed that the West Bank is, indeed, disputed territory. To label it Occupied Territory as defined by the Fourth Geneva Convention is ludicrous, even if the rest of the world considers it convenient to so label this land.

There was a time in the not-too-distant past when proclaiming a lie often enough was considered sufficient to render it true. Much of the world seems to still succumb to such a formulation—to such larceny of language. Israel, however, is the wrong country and Israelis are the wrong people to target with such calumny.  They’ve been there before and they recognize it for what it is.

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UN Security Council Vote– Yet Another Obama Foreign-Policy Debacle

Of Thee I Sing Heading Authors“So there should not be a shred of doubt by now — when the chips are down, I have Israel’s back.” (President Barack Obama, Washington, D.C., 3/4/12)

Well, that seems rather questionable.  Certainly, when the chips were down this past Friday, President Obama certainly didn’t have Israel’s back. Indeed, the long-rumored December surprise, turned out not to be rumor after all. Obama would have his petulant parting shot at Israeli Prime Minister Netanyahu with barely three weeks left in his Presidency. And while the UN vote condemning Israel’s settlement policy will have no practical effect on the ground, it is a major blow to the mid-section of America’s strongest and only reliable ally in the Middle East, and it gives enormous cover, even a degree of sanction, to the growing wave of anti-Semitism across Europe and the odious, equally, anti-Semitic campaign known as BDS (Boycott, Divest, and Sanction) movement roiling college campuses, public forums, churches and even some corporate boardrooms.

Equally troubling—it was a flat-out wrong and poorly conceived exercise in foreign policy. But then again, flat-out wrong and poorly conceived public policy has been rather endemic to the Obama Administration. We’ll discuss why we believe the UN vote was flat-out wrong a little further down in this essay. But first we’ll focus on the poorly conceived foreign policy decisions that have been endemic to this Administration.  First, there was the Arab Spring that offered a brief moment of hope for the Middle East that was squandered by feckless policy in Washington. Our hasty departure from Iraq, the mind-boggling, red-line bluff in Syria and the lead-from-behind, air-power, meddling in Libya with absolutely no ground game to deal with the aftermath led to one disaster after another and a leadership vacuum that the Obama anointed JV team, ISIS, has been only too happy to fill. Even in Afghanistan, where the Obama Administration committed 30,000 troops, President Obama simultaneously announced the date by which the troops would be withdrawn.

Then there was the Russian grab of Crimea, perhaps the greatest take-over of another sovereign’s territory since the Nazi’s marched into the Sudetenland in October 1938.  We did absolutely nothing meaningful about that, which probably signaled to Vladimir Putin that Russia could move back into the Middle East with impunity, which they wasted no time in doing…with impunity.

We won’t belabor the Iran Nuclear pact, other than to say the Obama Administration deep-sixed every positon we and the international community had previously taken forbidding Iran to develop Nuclear weapon capability. Iran now has a legal, ten-year glide path to joining the Nuclear Club, and they make no bones about their right and determination to do just that.  We even released the previously sequestered funds to help them do just that.

The Obama Administration’s publicly acknowledged policy has been to pivot away from the Middle East and to refocus America’s priorities on Asia. How’s that working out? China has been rapidly building military outposts including missile launch sites on disputed islands in the South China Sea, significantly boosting its presence in the already tense region, according to a Pentagon report released six months ago. Since announcing our “pivot,” China has invested in military programs and weapons designed to project power, and has begun shipping missiles to the recently constructed island military bases.

Now, let’s examine a bit more closely the Obama Administration’s decision to cast an abstaining vote at the Security Council last Friday which, of course, was the same as voting in favor of the resolution to condemn Israel.  The primary justification is that Israeli settlement construction (largely increasing housing units in existing settlements) hinders an eventual two-state solution to the Israeli-Palestinian dispute. Hog Wash!

Keep in mind, Israel did agree to a moratorium on any new construction while peace negotiations were on-going back in 2014, but those talks ended when the Palestinian Authority announced that it had concluded a secret agreement to form a unity government with Hamas, which has vowed never to agree to peace with Israel. The Palestinian Authority was pursuing its deal with Hamas unbeknownst to the Israeli negotiating team.

So, it is the existence of Israeli settlements, that cover about one percent of the West Bank, and which would require an equivalent transfer of Israeli land to a new Palestinian State if a peace agreement was ever concluded that the Obama Administration considers a hindrance to an eventual two-state solution.  One wonders what has really changed since Yasser Arafat walked out of the Clinton-sponsored Camp David talks in 2000 when Israeli Prime Minister Ehud Barak, essentially, agreed to all of the Palestinian Authority’s demands.  His reason? “I would be returning to my own funeral if I agreed to end the dispute with Israel.”

Israel faces Hamas to the South, Hezbollah to the North, and ISIS just across the Golan Heights and President Obama chooses this as the time to toss an ill-advised and unwarranted political grenade at the Israelis.

“Occupied” or “Disputed” territory?

There are two narratives about the so-called occupied territory, or, essentially, the land that has been in Israel’s hands since the 1967 six-day war. One narrative holds that the West Bank, the biblical Judea and Samaria, is occupied territory. The other narrative holds that the land is not “occupied territory”, but rather, “disputed territory” and, therefore, not subject to the Fourth Geneva Convention. The first narrative is widely embraced, and accepted by nearly all the world community. It is the convenient narrative. It shoehorns the territory into a legal definition that serves the interests of the current international milieu even if it doesn’t serve the interests of truth or justice.

The inconvenient reality is that the second narrative, the one that states the West Bank is “disputed territory” rather than “occupied territory” is, by any reasonable and emotionally detached reading, the far more applicable definition.

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians in a war zone. A reading of the history of this Convention makes clear that the thinking and the writing was informed by Nazi aggression during World War Two and the Nazi practice of forcibly transferring populations into and out of territory it controlled because of its conquests.  The Forth Geneva Convention is also directed at what the treaty refers to as “High Contracting Authorities” or, more plainly the representatives of states who have signed the treaty.

Here, in our opinion, the embrace of the Fourth Geneva Convention utterly fails. There simply is no “High Contracting Authority” that is a party to this dispute other than Israel.  There is not now, nor has there ever been a state called Palestine. This is territory that has been administered by the Crusaders, the Ottoman Empire, the British, the Jordanians, the Israelis, and the Israelis in conjunction with the Palestinian Authority. West Bank cities most sacred to Jews, such as Hebron and Jerusalem have been home to Jews throughout history and into the twenty-first century. In fact, Jews lived continuously in Hebron for thousands of years until they were banished, temporarily, by the Crusaders and massacred by local Arabs in 1929.  History is strongly on the side of the Israelis.

Arab opposition to Jewish settlements is based on the last paragraph of Article 49 of the Forth Geneva Convention. The “Occupying Power” may not “Deport or transfer parts of its own civilian population into the territory it occupies.”  It beggars the imagination to suggest that Israel, the only free and democratic country in the Middle East, used “deportation” and “forced transfer” of its own population into any territories, and no local Arabs have been forced from their communities since the six-day war.

The term “occupied territory,” which appears in the Fourth Geneva Convention, originated because of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.

Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:

(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state.

(2) The drafting history of Article 49 [Protection of Civilian Persons in Time of War] – that is, preventing “genocidal objectives” must be taken into account. Those conditions do not exist in Israel’s case.

(3) Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Professor Stone asserted: that “no serious dilution (much less extinction) of native populations” [exists]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”

Professor Eugene Rostow, past Dean of Yale Law School, and US under Secretary of State for Political Affairs, and a key draftee of UN Security Council Resolution 242, concluded that the Fourth Geneva Convention is not applicable to Israel’s legal position and notes:

“The opposition to Jewish settlements in the West Bank also relied on a legal argument – that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.” It seems that the International Court of Justice never explained it either.

UN Security Council Resolution 242 recognized that Israel would not be expected to withdraw from all territory it controlled after Israel successfully defended itself in 1967. The entire concept of land for peace was at the heart of resolution 242. President Obama successfully killed the concept of land for peace with his abstention at the UN last Friday. Now, according to the Security Council resolution Israel, legally, has no land with which to bargain.

It seems this Obama raspberry may be one of the last and one of the most memorable things we’ll hear from this White House.

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Ideas and commentary with allegiance to neither the left nor the right, but only to this sweet land of liberty.