TIME White House

How President Obama Decided to Sing ‘Amazing Grace’

"I knew I was going to sing. I was just trying to figure out which key to sing it"

When President Obama first broached the topic of singing “Amazing Grace” as the finale to his eulogy for the Rev. Clementa Pinckney he’d already had his mind pretty much made up: He was going to do it.

“When I get to the second part of referring to ‘Amazing Grace,’ I think I might sing,” he told his wife, First Lady Michelle Obama, adviser Valerie Jarrett, and two others before the funeral for the South Carolina state senator and pastor murdered along with eight others at a Charleston church last month.

Their responses were not encouraging. Jarrett’s answer was a non-committal “Hmm,” while Mrs. Obama was straightforward: “Why on earth would that fit in?”

Jarrett, recalling the moment at the Aspen Ideas Festival last week, said she and the First Lady ultimately “encouraged him to do whatever the spirit moved him to do.”

Read the entire story at the New York Times

TIME politics

Martin O’Malley: A Strong Foreign Policy Starts With a Global Middle Class

U.S. Democratic presidential candidate and former Maryland Gov. Martin O'Malley speaks at the U.S. Hispanic Chamber of Commerce in Washington, DC. on June 3, 2015.
Win McNamee—Getty Images U.S. Democratic presidential candidate and former Maryland Gov. Martin O'Malley speaks at the U.S. Hispanic Chamber of Commerce in Washington, DC. on June 3, 2015.

Martin O'Malley is the former governor of Maryland.

The cornerstone of American strength in the world is economic strength at home

I believe America’s role in the world is to advance the cause of a global middle class.

After more than 12 years on the battlefields of Iraq and Afghanistan, and after a global financial crisis that decimated our middle class, it is understandable that many Americans would like to disengage from the world. But our country’s security and prosperity demand that we be more engaged in the world, not less.

The first and foremost responsibility of the next Commander in Chief will be to keep America safe from 21st-century threats: violent extremism; nuclear proliferation; pandemics; cyberattacks; rising inequality; failed states; the mega-droughts, famines and floods caused by climate change; and more refugees than at any time since World War II.

We may have the most sophisticated military in history, but we do not have a silver bullet for these problems. So we must pursue a more collaborative, proactive, and farsighted foreign policy. We need new international partnerships to confront climate change and regional challenges, from the South China Sea to the sea lanes of the Middle East. We must create a new National Security Act to develop a broader framework for our national-security strategy. We must continue to adapt our military’s force structure and spending to meet today’s threats. And we must establish a cybersecurity unit in every state’s National Guard to better protect Americans’ personal data and critical infrastructure.

My vision for U.S. foreign policy focuses on the rise of a global middle class, which is a moral, economic, and national-security imperative. Eliminating the scourge of extreme poverty is a reflection of our most deeply held values. Supporting economic development will help us build the next generation of American political and economic partnerships. And protecting the dignity of human lives in fragile states will reduce the threat of being drawn into costly future conflicts.

We must also understand that comprehensive immigration reform is an economic and national-security interest. And we must forge a New Alliance for Progress based on shared interests in our own hemisphere, which we have neglected for too long. An early task should be to address the root causes of violence and instability in places like El Salvador and Honduras, heading off growing crises before they reach our borders.

We must listen to U.S. military leaders who have long recognized that climate change is a national security threat. Tackling the climate challenge will provide our nation the greatest business opportunity in 100 years. I strongly support an American Green Jobs Agenda. If we can put a man on the moon in a decade, we can power America with 100% renewable energy by 2050. It’s not the technology that’s lacking. It’s the political will.

All of this is within our reach. But it will require new leadership. Twitter and Facebook are no substitute for personal relationships and human intelligence. We must recruit a new generation of Americans to exercise our global economic, diplomatic, military, and healing power in ways consistent with our values. And we must give them the tools to engage a new generation of leaders abroad, often in hostile environments where we lack historic ties.

The cornerstone of American strength in the world is economic strength at home. Maintaining our security in the long run will require an economy that works for all Americans. No fighter jet or troop battalion will protect us as much as a vibrant economy. A stronger middle class is the first garrison against any threat we might face.

The greatest power we possess as Americans is not military might, but the power of our own example. We must lead the world by strengthening the American middle class and supporting the rise of a global middle class — free from want, and free from fear.

That will make us more prosperous and secure. That will give our children a better future with more opportunity. And that will make our planet healthier, more peaceful, and more just.

These are the foreign policy and national security goals worthy of a truly great people.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME Greece

Lessons From Greece as Controversial Finance Minister Exits

Varoufakis said he resigned to help the negotiations

Greece’s economy is in ruins. It is hard to imagine how things could have gone worse. Banks closed, no liquidity, very high unemployment, businesses closing down or fleeing the country, and the brain drain is accelerating.

And now the Greek people have voted No in a referendum that some cast as being about whether they would remain in the eurozone – though many were unclear about what exactly the vote meant. What it certainly means is that the Greek people are deeply wounded by the prolonged recession of the last six years.

As Greek Prime Minister Alexis Tsipras heads back to the negotiating table in hopes of securing a new deal to save his country, he will go without his controversial finance minister, Yanis Varoufakis, who resigned a day after the vote. According to Varoufakis, Tsipras asked him to resign in order to help with the negotiations.

One reason we’re where we are today, so close to a “Grexit,” is that journalists – Greek and foreign – failed to carefully scrutinize Varoufakis’s strategy to win better terms from Germany – one that didn’t pan out. Let’s hope they look much more closely at his replacement.

Path of destruction

Tsipras, Varoufakis and their left wing Syriza party were elected to office back in January because of how much the Greek economy had suffered. Between 2009 and 2014, a tremendous amount of value was destroyed, both because of the failure of Greek governments to implement reforms and because of the austerity measures imposed by creditors. The pace of value destruction only accelerated in the first six months of 2015.

Consider this: just in the first quarter of 2015, the Hellenic Financial Stability Fund (the fund established with loans from eurozone governments and the European Financial Stability Facility to finance Greek bank recapitalization) lost €5 billion.

This loss and the postponement of cash payments from the Greek government to its suppliers isn’t being accounted for in its budget. Doing so would turn the 4% primary budget surplus that was reported for the first quarter into a 13% deficit. The primary surplus is the sum of spending and income, excluding interest payments.

From expert to pariah

When Varoufakis emerged on the public scene, he was quickly baptized by the media as an expert and world-class economist.

That created a figure of authority, a person that many Greeks deeply believed. In the last couple months, however, he has been under attack, accused of destroying the country’s finances.

The same people who now criticize him never questioned the basic premise of Varoufakis’ negotiating strategy: that Europe would blink first because of the risk of contagion. His assumption was that the threat of a Grexit would have devastating consequences to the eurozone.

Back in February, I said the opposite: do not count on this because we are not in 2012 anymore. The eurozone built a concrete fence around the Greek economy so that if it blows up, the consequences for other countries would be minimized – though it still would send Greece back to pre-euro economic development levels.

Whether this will now prove to be true is irrelevant. What matters is that both European politicians and the markets believe it. All Greek threats during negotiations were dismissed.

Lack of scrutiny

Unfortunately, before Varoufakis was given the license to implement his strategy, he was never hard-pressed to present evidence of his hypothesis.

What data did he have that suggested that European financial institutions were exposed to the risk of a Grexit? Would big foreign multinational companies be forced to fire a large number of people as a result of the Greek market collapsing? Did the prices of government bonds of other countries move in the same direction as the prices of Greek government bonds in 2014 – in other words, is there evidence of a close connection between the fate of the Greek economy and that of other countries?

The role of a finance minister is incredibly important in a country’s economy.

Given the importance of attracting investments, the finance minister needs to inspire confidence and build trust. The only way to do this is through consistency, specificity and clarity in decision-making and public statements.

A finance minister needs to have a clear plan and to be able to support his or her rationale with evidence.

I do hope that Greek – and other – journalists will scrutinize the country’s future finance ministers to present evidence that justify the policies they choose. They have a very important role to play, if Greece is ever to recover.The Conversation

George Serafeim is Jakurski Family Associate Professor of Business Administration at Harvard Business School.

This article was originally published on The Conversation. Read the original article.

TIME Greece

Why the Greferendum Isn’t as Historic as You Think

Syriza’s successful "No" campaign was a symbolic victory that will have little lasting impact

Against the predictions of many opinion polls, the so-called Greferendum scored a surprisingly resounding victory for the Oxi — or No — campaign.

Some 60% of Greek voters chose “no” on one of the most incomprehensible referendum questions in history. The vote has been heralded and mourned across Europe, with both sides agreeing that it is a “historic” occasion in European (they mean European Union) history.

It is not.

How could it be? The Greferendum was designed to be vague and inconsequential. It was on an extremely narrow question, that is whether Greeks supported a highly specific proposal from the country’s creditors.

Moreover, by the time the referendum was held, the proposal was already off the table. It is therefore completely ridiculous to celebrate it as a vote against the eurozone, let alone the EU, as many far right politicians have done, and highly optimistic to see this as a mandate to end austerity.

Not only was this not the question of the referendum, it is not up to Greece to decide that for the whole eurozone and EU.

The referendum was always much more about the survival of the Greek government — and, more specifically, its main party, the Coalition of the Radical Left (Syriza) — than about Greece or Europe.

It was, first and foremost, an elaborate and expensive vote of confidence in the more moderate line within Syriza. In fact, Prime Minister Alexis Tsipras was remarkably candid about this in his victory speech, saying the result was not a mandate for a rupture with Europe but one for a strengthened negotiating position for Greece. I wonder how that message resonated among the many “anti-EU” and “international solidarity” supporters of Syriza across Europe.

Back where we started

Consequently, we are exactly where we started half a year ago, when Syriza won the Greek elections.

In essence, the referendum was about Syriza’s “Third Way,” that is an anti-austerity eurozone, which has been the basis of the party’s electoral success.

Tsipras called the referendum with the (unconvincing) argument that he didn’t have a mandate to accept the creditors’ proposals, because the two coalition parties gained only 41% of the vote in the 2015 elections – yet they have a clear majority in the mono-cameral Greek parliament.

If this really is his line of thinking, and we ignore the fact that only about 40% of the Greek electorate actually voted “no” in the referendum (60% of 65% turnout), the situation hasn’t changed much. After all, the Greferendum gave him only a mandate about this specific deal, which was off the table anyway. Any new deal, let alone a significantly changed one, would require another referendum. Somehow I think that will not happen.

A symbolic victory

From a broader European perspective the Greferendum was a symbolic victory. But unfortunately, such victories are exactly that, symbolic, and tend to not last long. We have seen symbolic victories against the “imperialist” and “undemocratic” EU before – think about the French and Dutch referendums against the European Convention in 2005, in which similar majorities said “no” to a much more fundamental question.

But after a couple of months of “crisis,” the EU responded as it has always done: with more EU.

The Lisbon Treaty was a European Convention Light, which was no longer put to a referendum in France and the Netherlands. The silly Irish tried to reject it, in a 2008 referendum, only to be forced to vote again in 2009 – as they made “the right choice” the second time around, they didn’t get a third chance.

The Greferendum won’t be different. Within weeks there will be a “compromise” between the two camps, as both have too much at stake (such as hanging on to power). There will be neither an end to austerity nor a Grexit.

Instead, there will be something that strongly resembles the rejected proposal, a Lisbon Treaty of austerity, but that can be re-branded as a victory for Greek “dignity” by Syriza. The new policy will be austerity light, not much different than the policies in most other bailout countries (such as Ireland and Portugal).

In that way, Syriza’s “Third Way” will end up much the same as the “Third Way” of New Labour in the UK: neoliberal policies hidden under progressive rhetoric.The Conversation

Cas Mudde is Associate Professor in the School of Public and International Affairs at University of Georgia.

This article was originally published on The Conversation. Read the original article.

TIME politics

Why Nikki Haley Finally Called for the Removal of the Confederate Flag

Removing the divisive symbol was about business, not ideals

Anyone searching for a compelling visual testimony to the brutal absurdity of the American South’s racial obsessions surely need look no further than the photo of little Nikki Haley, born Nimrata Nikki Randahawa, on the stage of the annual Miss Wee Bamberg (South Carolina) pageant. In the wake of school desegregation, it had become the practice to crown both a white and a black winner. Haley and her sister had introduced an unforeseen element of racial ambiguity that left pageant officials fearful that neither the white or black parents in the audience would accept the two little brown-skinned daughters of an immigrant Sikh couple in their racial category. The wrapped package with a deflated beach ball in her hands is what she later called their “disqualification” prize. Surely no one in attendance that night, save perhaps the little girl herself, could imagine that some three decades later, Bamberg would boast signs welcoming motorists to the “Home of Nikki Haley, Governor of South Carolina.”

It is tempting to see Haley’s rise as personal triumph and regional redemption. Yet contrary to liberal presumptions, Nikki Haley has proven to be anything but the empathetic, compassionate champion of minorities, women, and immigrants that her background seemed almost to mandate. Instead, growing up astride the color line appears to have quickly shown a savvy young woman like Haley which side of the racial divide offered the better prospects for fulfilling her ambitions. The same was true of the partisan divide as well, for South Carolina was already an established GOP stronghold when she entered the 2004 primary, knocked off the longest-serving incumbent in the state House of Representatives, and then sailed unopposed to her seat as the first Indian-American member of the South Carolina legislature.

Indeed, Haley, an early Tea Party favorite, stands shoulder to shoulder with other Deep South governors in their longstanding and unwavering faith in bringing in new industry at any cost. Forced increasingly to weigh their obligations to preserve segregation against the development imperative as civil rights pressures mounted, the balance began to tip in favor of the latter in the 1960s, when concerns about the potentially harmful effects of racial tensions on business development helped to pave the way for the initial desegregation of public schools and other public facilities and accommodations. A similar consideration has factored heavily in more recent disputes over removing the Confederate battle flag from state property or excising it from the flags of several southern states.

In South Carolina, that flag might still be flying atop the state capitol had a torrent of threatened economic and tourist boycotts and pressure from the state’s business community not forced the legislature 15 years ago to at least move it to the capitol grounds. Governor Haley had shown no public inclination to move against it until the slaughter of nine African-Americans in Charleston by a Rebel-flag-worshipping gunman became both catalyst and premise for a step that southern political leaders had been at once eager but too timid to take.

Not only did the flag pose a threat to party unity, but clinging to such a divisive and seemingly hostile and provincial symbol is hardly indicative of a community ready to welcome global companies and their employees. Make no mistake about it, the moves by Nikki Haley and her counterparts in other southern states amounted in no small sense to what a proponent of ditching the Confederate insignia on the Mississippi state flag once called a “strategic business decision.” Without questioning the sincerity of their expressions of horror over the Charleston tragedy, distancing their state and their party from what so many see as an emblem of hatred and persecution seems to have a huge upside for southern Republicans, especially those with national political ambitions like South Carolina’s Senator Lindsey Graham or perhaps even, its governor.

Albeit 150 years too late, the move by Haley and other southern leaders to finally furl the Confederate flag is a welcome one nonetheless. History, after all, offers too few examples of right things done for precisely the right reasons to afford us the luxury of being picky.

James C. Cobb is the Spalding distinguished professor of history at the University of Georgia in Athens. His most recent book is The South and America Since World War II. He wrote this for Zócalo Public Square.

TIME viral

Watch Philadelphia’s Mayor Cover ‘Rapper’s Delight’ with The Roots

Mic drop.

There’s one thing every politician should know if they want to succeed in the rough-and-tumble world of Philadelphia politics — all the words to “Rapper’s Delight.” That’s the takeaway from a new video where Philly mayor Michael Nutter jumped on stage with local boys-turned-The Tonight Show house band The Roots to perform the Sugarhill Gang’s classic rap song.

The mayor didn’t miss a beat as he spit out the rhymes on stage at the 4th of July celebration at the Wawa Welcome America! festival. He walked the stage like a pro, throwing down verses, and even dropped the mic at the end after nailing the performance. There’s no doubt that the mayor’s performance was way better than the time then-NBC anchor Brian Williams “rapped” the Sugarhill Gang’s classic. As Uproxx points out, there’s a reason that Nutter is so good at this: before he started a career in business and politics, he worked in the city’s nightclubs and had performed the song before.

TIME politics

On July 4, Remember America’s Promise

America offers a powerful, countervailing force to terrorism in the Middle East

The same week that terrorists attacked Kuwait and Tunisia, the U.S. Supreme Court struck down laws banning same-sex marriage. These events might seem unrelated. But they are symptomatic of the stark split in our world.

The contrast was vivid. The Atlantic’s Jeffrey Goldberg tweeted:

The pageant of barbarism of the events in Kuwait and Tunisia has become the tragic hallmark of much of the Middle East. The oppression of women, the persecution of gays, anti-Semitism, and a drive to terror grips many in the Muslim world. Across the Middle East there is a terrifying descent into cruelty that is justified in the name of religion but has much more to do with the wanton liberation of the darkest devils hidden in human souls. To claim divine warrant for beheadings is simply to give your sadism wings.

In the U.S., while bigotry and cruelty also exist, there is a powerful, countervailing force. The drive to accept rather than anathematize the other is a growing force in our culture. It can lead to absurdities and contradictions: People’s self-definitions often seem more whimsical or deliberately provocative than serious, and we know that in the name of not offending there are demands that infringe on others’ freedom of speech. To be thin-skinned is too often defended as a “right,” and normal discourse too often has to be hedged with qualifications and “trigger warnings.” But these are correctible excesses of a fundamentally sound principle, the drive to embrace the other.

America, which was founded to gather the “wretched refuse”—people of different types, from different places, opened its arms to a new kind of diversity in approving same-sex marriage. In the Middle East, people who were nominally practitioners of the same religion were not only fighting, but deliberately blowing up non-combatants. One was a license to love; the other was a drive to destroy.

On July 4, you will hear about the ways in which America is falling short of its promise. There will be accusations, and politics will inevitably intrude. But when you read the doubters and detractors, remember what we stand for in the world. For some people who felt unwanted and even disdained, America just became a little bit more of a home. Happy July 4, and God bless America.

TIME politics

Kareem Abdul-Jabbar: America’s Not Ready To Dump Trump

Donald Trump Chicago
Michael Tercha—Chicago Tribune/Getty Images Donald Trump speaks with the Chicago Tribune Editorial Board on June 29, 2015 in Chicago.

TIME columnist Abdul-Jabbar is a six-time NBA champion and league Most Valuable Player. He is also a celebrated author, filmmaker and education ambassador.

At least he's good for entertainment value

Donald Trump has united American voters, though perhaps not in the way he’d envisioned. More than 200,000 petitioners demanded that NBC cancel any association with Trump, while 700,000 petitioners requested that Macy’s remove Trump merchandise. Both petitions succeeded, and NBC and Macy’s joined Univision in the nationwide Dump Trump movement. Fox News, Bill O’Reilly, and The Wall Street Journal editorial page have all declared recently that racism is gone from American society. But Donald Trump has proven them all wrong — as has his bump in the polls immediately following his racist comments.

Trump would portray his comments — that Mexicans coming to America are drug-runners and rapists — not as racism but as an example of (to borrow a phrase from defrocked Real Housewife and Celebrity Apprentice contestant, Brandi Glanville) his straight-shooting “truth canon.” However, it’s really more of a truthiness pea-shooter. In the Real World, a seldom-visited land in politics, his comments were the definition of racism: to negatively characterize an entire ethnic group based on the actions of a few. Following Trump’s logic, America is a nation of home-grown murderers, drug-users, and pornographers.

The most damning statement Trump made during that speech wasn’t the racist characterization of Latinos, it was his follow-up comment that “some, I assume, are good people.” I assume? As if there was no way for him to assess the character of Latino immigrants except by watching Scarface and American Me.

And that is the essence of Trump’s classic, tragic fall: hubris. The tragic hero falls from grace because his pride makes him think that all his success is due to his own efforts and therefore he can reject the teachings of the gods. Basically, that’s what happens to Oedipus, Othello, and Adam and Eve. Their success blinds them to the reality that they are just another person under a divine authority. From high up in the cloud-enshrouded, gold-plated penthouse in Trump Towers, it must be difficult to see the reality of people’s lives way, way down below. And to believe that all glory belongs to Trump, amen.

We could give in to cynicism and interpret Trump’s rise in the polls following his public endorsement of racism (he’s now second, behind front-runner Jeb Bush) as proof that Americans support racism. But I prefer to believe it’s just America’s way of keeping him in the race for entertainment value. “Who knows what craziness he’ll say next,” people might be thinking. “Let’s keep him around to find out. It’s better than the stale, packaged drivel we get from the rest of the interchangeable Lego-like candidates.” Down on the street level of the real world, Trump has no chance to win or to even come close. At best, he hopes the nothing-but-hype candidacy will improve the value of his name for branding on products. He may be right. People have short memories. A year or two down the road they might be willing to buy products just because they carry the Trump name, which makes his candidacy a wise business investment, however destructive it is to America socially.

Rather than using this opportunity for thoughtful reflection on his comments and how to be a more inclusive candidate, Trump has responded to the defection of businesses and barrage of criticism with lawsuits, insults, and — justifying voters’ faith in keeping him in the race for entertainment value — even more outrageous statements. In an interview with CNN’s Don Lemon, Trump supported his assertion that Mexicans were rapists by citing a 2014 Fusion article that claims that 80% of Central American migrants traveling through Mexico were raped. When Lemon pointed out that the article was about rape in Mexico, not rapist Mexican immigrants, Trump explained, “Somebody’s doing the raping, Don.” Say what now?

When CNN’s Jake Tapper asked Trump about his supposed support of traditional marriage, despite having been married three times, Trump responded, “I don’t really say anything. I am just, Jake, I’m for traditional marriage.” Huh? Is he doing the moonwalk here? Further evidence of his keen analytical mind came with his comment that he blamed himself for the failure of his marriages “because my business was so powerful for me. I don’t know if that’s a good thing or a bad thing.” He doesn’t know whether his obsession with making money, which destroyed two marriages and affected his children, was good or bad. Perhaps that tells us everything we need to know about the man’s values regarding business success versus human cost. Will the bottom line always outweigh what is just and right for those people who stand in the way of his personal success? In other words, the people on the street level.

The mistake Trump made is as understandable as it is devastating. He would never have said African-Americans are a bunch of drug-peddling rapists (even if he thought they were) because he’s savvy enough to know that’s not true — and to know that he’d be hit by a perfect storm of blacklash. But when it comes to the Latino community, there’s less vocalized opposition in the media, despite the fact that Latinos are the largest ethnic minority in the U.S. at 17% (54 million) versus 13.2% (41.7 million) identified as African-American.

There’s an old saying from the ’60s that summarized racial attitudes of the time: “If you’re white, you’re all right; if you’re brown, hang around; if you’re black, get back.” This illustrates the current passive “wallpaper racism” (in the background so it’s not as noticeable) against Latinos that made Trump think it was socially acceptable to be derogatory toward the community without anticipating consequences.

We must give Trump credit for aggressively affirming that our democratic process works. Pundits often ridicule our lengthy vetting system of presidential candidates, which can last for two years before the actual election. But this gives a candidate plenty of time to reveal the true self hiding behind a polished political facade. But while most candidates fade out over months, the hyper-efficient Trump did it in the speech announcing his candidacy. Now that’s a fiscal conservative, saving so much time and money on the way to self destruction!

In the meantime, he will continue to respond to any thoughtful criticism by quoting his political guru, Taylor Swift: “The haters gonna hate, hate, hate, hate, hate. Baby, I’m gonna shake, shake, shake, shake, shake. I shake it off, I shake it off.”

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME animals

A Dog Is Running for Mayor in Upstate New York

The 13-year-old pooch is running as "Schenectady's best friend"

The latest candidate to enter the race for mayor in Schenectady, N.Y. doesn’t just have a leg up on her competition—she has two. Diamond, a 13-year-old dog, is running as a write-in candidate in the city’s race. And according to the Daily Gazette, she’s running as “Schenectady’s best friend.”

Diamond’s entrance into the race for mayor—which features three human candidates, Mayor Gary McCarthy, Roger Hull and Chris Gibbs—isn’t the first time a four-legged friend of the upstate town has made a foray into local politics. In 2007, Sparky the cat ran for mayor, followed by Roger the cat in 2011. In 1999, the Gazette reports, Loffredo the dog entered a mayoral race. No furry candidate, of course, has actually won, but McCarthy and Hull told the paper they welcome the competition.

“I assume our paths will cross in the campaign,” McCarthy said of Diamond.

[The Daily Gazette]

TIME politics

John Roberts’s Principled Mistake in the Obamacare Decision

supreme-court
Getty Images

Instead of 'textualism,' the chief justice chose 'purposivism'—much to the benefit of progressives

Chief Justice John Roberts’s decision in King v. Burwell, upholding the capacity of federal exchanges to provide insurance subsidies, has drawn fire as an unprincipled expression of support for Obamacare. This charge is unfair. It is a principled decision, implementing a well-established, if wrong-headed, theory of statutory interpretation, giving greater weight to what the court sees as the overriding purpose of legislation rather than its text. Unfortunately, that theory is one that is likely to aid progressivism, because it tends to make judges partners in legislative programs to expand state power.

The essence of King v. Burwell comes down to the divide between Roberts and Justice Antonin Scalia. The case turned on the question of whether insurance subsidies would be available for those who signed up to federal exchanges as opposed to state exchanges. The statute clearly restricts subsidies to “an exchange established by the State.” “State,” in turn, is expressly defined as “each of the states and the District of Columbia.” Thus, for Scalia, the case is an easy syllogism. Subsidies are available on exchanges established by a state; exchanges established by the federal government are not exchanges established by a state.

For Roberts, however, this interpretation would defeat what he sees as the purpose of the Act: to expand insurance for those previously uninsured. If a state didn’t set up an exchange, the federal exchange operating in the state could not accomplish this purpose, because most people without insurance could not afford to purchase at market prices. Worse still, the lack of subsidies would create a risk of a “death spiral” in the availability of insurance. Because Congress prohibited insurers from excluding people with preexisting conditions, many people would wait to purchase insurance until they got sick—a rational decision for some, since even the cost of paying a fine for failing to comply with the mandate to buy insurance would be small compared with the amount required to buy unsubsidized insurance.

Roberts’s approach privileges the purpose or intent of the statute over the most plausible import of its text. It is not a novel move in statutory interpretation, and it has many adherents among legal theorists. The method works well, for instance, in interpreting the contracts made between two people—understanding their language not in terms of its plain meaning but in terms of the shared intent of the parties, i.e., the overriding purpose that the contract was intended to serve.

But as law professor Mark Movsesian has suggested, while such a method of interpretation may be appropriate for contracts, it is not appropriate for statutes. One formidable difficulty is that while a contract, when it is an agreement between two people, may have a single overriding purpose, federal legislation is a product of 535 legislators plus the president. It’s hard to distill an overriding intent or purpose from such a collection of wills, particularly in complex statutory schemes.

The Affordable Care Act is a case in point. While one objective was indeed to insure the uninsured, another was to encourage the states to experiment and to prevent undue location of authority in the federal government. As the now famous video by Jonathan Gruber shows, some of the ACA’s supporters embraced the natural purpose of the plain meaning of its subsidies provision. Permitting only state exchanges has the advantage of motivating each state to establish exchanges. Otherwise, their taxpayers will wind up paying for the subsidies in other states. Indeed, now that subsidies will become available on federal exchanges, a number of states will likely give up their exchanges, further centralizing power in the federal government.

Moreover, unlike a contract, a statute is written for people who are not parties to its making. This difference provides another reason to interpret a statute according to its plain text rather than forcing citizens to figure out which of many purposes the text should be thought to serve—let alone trying to divine the intentions of the legislators who passed it. In this sense, “textualism” reflects the rule of law, rather than that of particular people.

“Purposivism,” by contrast, makes the task of progressives easier. Textualism requires progressives to change the world expressly, one line of text at a time, but purposivism enlists the courts as allies. They can then use the broad purposes of the legislation to smooth out obstacles that compromises, mistakes, and tensions among multiple objectives may have created.

One section of Roberts’s opinion demonstrates how his method of interpretation transforms the judiciary and the legislature’s role under the separation of powers. In response to the argument that interpreting away the clear import of the text would traduce the venerable rule against treating language as without effect, Roberts noted that the statute as a whole seemed so badly drafted that this rule—against “surplusage”—might not apply. And indeed, the statute was badly drafted, because it didn’t go through the regular order of a House and Senate conference committee, where different objectives are often reconciled and language is revised. The reason was that Senator Scott Brown’s victory in Massachusetts deprived the Democrats of their filibuster-proof majority and forced ACA proponents to enact the original unrevised version that the Senate had already passed. Thus, Roberts’s method of statutory interpretation allows progressives to push legislation fraught with contradictions and tensions through the legislature, confident that the Supreme Court will refine it through interpretation to advance its broadest and most abstract purposes. Conservatives, in contrast, rarely enact the kind of comprehensive legislation reordering markets or society that requires such help to make it coherent.

Justice Scalia decried Roberts’s opinion as showing favoritism toward the Affordable Care Act. Perhaps. The more substantial concern is that the chief justice has endorsed a method of statutory interpretation that aids the progressive agenda more generally.

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