Yesterday’s Supreme Court decision on Obamacare is a tragic setback to the nascent movement of  “political constitutionalism.” For three years, beginning with the emergence of the Tea Party, millions of citizens joined together in trying to settle the broad meaning of the Constitution through political means, by public debate and by efforts to elect public officials committed to a certain understanding of the purposes of the nation’s governing document. Courts should not be the sole arbiters of certain constitutional questions, especially those dealing with the extent and limits of government power. The political process has its own role to play in constitutional decision-making.

The conflict over Obamacare has been the “test case” of political constitutionalism. Both political parties began to speak of the ends and purposes of constitutional government, and political leaders have increasingly discussed not only the policy implications of health care, but its constitutional status. Of course, the constitutionality of Obamacare has also been tested in the courts, where the legal question of the meaning of the commerce clause has been the central issue at stake. But the legal track, until yesterday, had not short-circuited the political track.  The worst thing about yesterday’s decision was not its result, but that it was decided at all before the 2012 election.  The ink was hardly dry on the decision before the President’s allies were claiming that the constitutionality of Obamacare had now been definitively determined.  The Supreme Court had spoken and it was time to move on. To use legal language, public and political leaders should “cease and desist” further discussion of the constitutionality of the law and retreat to their proper role of discussing good or bad policy.

This position, if accepted, would amount to a gag order on constitutional discussion and a full surrender to the doctrine that the Court alone judges the meaning of the Constitution. There is more at stake in this decision than the question of Obamacare itself.  Republicans should continue to oppose this law not only because it is bad law and bad economics, but also because it is unconstitutional. The Court plays its role and it is owed its proper measure of respect. But Americans need to be reminded that the people too, operating through their elected representatives, have a vital role to play in deciding great constitutional questions.

If the test of a clever orator is the ability to sell two incompatible positions at the same time, President Obama must already rank as one of the most adept rhetoricians in American history. The President steadfastly disavows any intent to foment division between economic classes, even as he works at every step to denounce the wealthy. At Osawatomie, Kansas last December, in what was billed as an historic speech on his governing philosophy, Obama insisted “this isn’t about class warfare,” and then went on immediately to attack “the breathtaking greed of a few” and “mortgage lenders that tricked families into buying homes.”

These lines were a throwback to the class rhetoric not only of Theodore Roosevelt, whose speech President Obama was channeling, but also of cousin Franklin, who fulminated in his First Inaugural against “the unscrupulous money changers [who] stand indicted in the court of public opinion.” These attacks are ostensibly not on the rich themselves, but on the undeserving rich. These poor souls were formerly characterized mostly by their practices and disposition (unscrupulousness and greed) and their occupation (finance). President Obama has added a political dimension: refusing to buckle to his idea of paying a “fair share.” The good or deserving rich, by contrast, are those like Warren Buffet, George Clooney, and Jon Corzine, who abhor the Bush tax cuts.

In the selection of Mitt Romney as the Republican nominee President Obama has found a target too rich to pass up.

Last week marked the official start of a campaign that has been going non-stop for over a year. Addressing a large crowd at Virginia Commonwealth University, Obama directly measured his opponent, praising him as a “patriotic American” who had “run a large financial firm.” He continued: “But I think he has drawn the wrong lessons from that experience. He sincerely believes that if CEOs and investors like him make money, the rest of us will automatically do well as well.”

This sketch of Republican economic theory followed Michelle Obama’s introduction, which, without directly mentioning the investor opponent, invited the audience to draw a contrast between average folks, like herself and Barack, and the privileged, who know little of life’s difficulties: “Barack Obama, he is the son of a single mother who struggled to put herself through school and pay the bills. He’s the grandson of a woman who woke up before dawn every day to catch a bus to her job at a bank.”

Since the Obama campaign is assiduously courting the woman’s vote, especially the demographic of the unmarried, there was certainly no reason to mention that Barack had a grandfather too, and that the couple, who brought Obama up for a large part of his childhood, lived a comfortable life in Hawaii. It was more important to expand on his grandmother’s plight: “And even though Barack’s grandmother worked hard to help support her family — and she was good at her job — like so many women, she hit that glass ceiling.  And men no more qualified than she was were promoted up that ladder ahead of her.”

The contrast here is to Mitt Romney, who had the misfortune to be the son of an intact family and to enjoy the advantages of his parents’ considerable wealth. As for the previous generation, however, it is noteworthy that Mitt’s paternal grandparents, after leaving Mexico, initially had quite a tough time of it, rising very early in the morning, no doubt before dawn, to eke potatoes out of marginal farmland in Idaho.

Winning votes is the name of the game in a political campaign. What political value does the President hope to extract from his appeal to class antagonisms? Some have supposed that what is in play here is the classic ploy to stoke envy, the desire to take away what others have. The problem with this analysis is that most Americans are not much moved by this passion. A recent Gallup poll shows that almost two-thirds of Americans believe that the nation benefits from having a class of the rich, which is the same result as twelve years ago. Still, this tactic may work to fire up his base, as Democrats are split down the middle on this question. Where President Obama might score some additional points is among those who are angry (and this would include many Republicans) at the better off who were bailed out under the doctrine of  “too big to fail.”

Probably the most important support for these attacks on the rich comes from within the intellectual classes, where various ideas of fairness and social justice have been making inroads. The simplest idea is that the level of benefits that has now been voted into law represents an unalterable minimum, secured as a matter of every person’s rights. If this level cannot be sustained under current tax rates, the money must be gotten from somewhere, which means from the rich. Forget whether the numbers add up; for the moment, it is the point of fairness that is at issue. If the current level is the minimum, being already part of a collective pact, it is impossible to ask anyone to give up a benefit before taking more from the wealthy.

The exploding budget deficit has been used, paradoxically, to work in favor of this position. Just as conservatives once employed swelling deficits as an argument to strangle the beast and stop government spending, so liberals employ the huge overhang today to justify taxes on the wealthy. The deficit, it is rightly said, is a common liability. It is therefore not a matter of anyone being against the rich or of taking from some to give to others; it is a matter of paying for what we all owe.

These arguments about fairness are backed by a developing set of ideas about the collective ownership of the wealth of society. The notion is that property is not, as our economic theory and understandings of natural rights have held, owned chiefly by individuals; instead, property is in reality and by right ought to be owned by the collectivity. This idea goes much further than the simple point, accepted by all, that judges and legislators must define the contours of private property by rulings and laws that fix contracts and modes of ownership. It challenges the very concept of the primacy of private property. The popular spokesperson for this position has been Elizabeth Warren, a professor at Harvard Law School whom President Obama appointed as interim chief of the Consumer Financial Protection Bureau in 2010 and who is now running for Senator of Massachusetts, challenging Scott Brown. Professor Warren instructed her audience during the campaign:

You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did.

Because we live in an interdependent society, in which certain benefits are given to all, no one has a genuine primary claim to property. Differences in individual effort or ability (or differences in luck) are secondary, not primary factors. Morally speaking, property is public in the first instance, after which, perhaps, the law may decide on some residual basis to allow individuals to keep different amounts.

This logic can be taken a step further. It can be said that the collectivity has the primary claim to ownership not only because we all pay for essential services, but also because we happen, by chance, to belong to that collectivity itself. Michael Kinsley, the well-known political commentator, working now at Bloomberg, has argued this position:

[E]very American selling anything benefits from doing so in the world’s richest market. An American doctor earns many times what the same doctor would earn in, say, India. This is not because he or she works many times harder. It’s not even primarily because our government doles out hundreds of billions for health care each year. It’s because we are a richer society, for reasons the American doctor had nothing to do with.

Where and when we happen to have been born—in what country and in what century—are the primary factors that determine wealth, an obvious observation that is somehow thought to undermine the claims of the industrious and the rational to individual property.  We stand on the backs of those in previous generations who built our economy and society, which in the Leftist view transfers ownership of property from the person to the collectivity, and perhaps beyond to the world community. Academics are enthralled by such sophistry, which translates into support for Occupy Wall Street. Of course, the same line of reasoning applies to their own work, as they can hardly claim primary title to their thoughts. They went to schools and universities paid for in part by the collectivity, and they live in a culture that has been created by past thinkers. Many academics acknowledge this truth, and the scrupulous among them pay their debt in the currency of the footnote. It’s a lot less expensive than a thirty-percent tax increase.

When the Arab spring began a year ago, the Western world was shocked. Liberty seemed to have bypassed the Arabs; they had seemed resigned to tyranny. But once unleashed, the upheaval knew no restraint, and there were both mayhem and promise in the streets of the Arab world. Since then, the rebellions have spawned a steady stream of punditry and conventional wisdom about the Arab spring—some of it vastly mistaken. Let’s explore what really fueled the uprisings.

Myth one: Obama’s 2009 Cairo speech helped inspire the Arab spring.

Nothing could be further from the truth. By the time of these rebellions, the Arab and Muslim romance with President Obama had long vanished. He had gone to Cairo in June 2009 promising a new American approach to the Arab-Muslim world. But embattled liberals in the Arab world (and in Iran) had already begun to see through him. While Obama pledged “a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect,” Arabs saw the new American leader’s ease with the status quo.

Obama set out to repair America’s relations with Syria and Iran, and gave George W. Bush’s “diplomacy of freedom” a quick burial. “Ideology . . . is so yesterday,” Secretary of State Hillary Rodham Clinton bluntly proclaimed in April 2009, identifying Bush’s assertive foreign policy as a thing of the past. As upheaval swept through Iran in the first summer of the Obama presidency, the self-styled bearer of a new American diplomacy ducked for cover.

Continue reading Fouad Ajami…

Ten years have passed since the opening of the U.S. detention facility at Guantánamo Bay, Cuba, and the anniversary was marked with much hand-wringing. There were articles by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site, and tear-stained statements by human rights groups.

In a decade of policy experimentation at Guantánamo, some efforts have succeeded, some have failed tragically, and some are still in process. But far more interesting than the past ten years is what the next ten will look like. And that subject seems oddly absent from the conversation.

Make no mistake: there will be another ten years of Guantánamo. (Even if Guantánamo itself miraculously closed, we would have to build it somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against nonstate actors, our forces are likely to capture more of such people, and we will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.

Continue reading Benjamin Wittes…

The detention and interrogation facility at Guantánamo Bay, Cuba, which I have visited, has served and continues to serve an important role in the war against terrorists since it opened a decade years ago. It houses high-value terrorist detainees, like Khalid Sheik Muhammad, the architect of September 11.

The military commissions’ courthouse, called the Expeditionary Legal Compound, is a world-class, state-of-the-art facility specifically designed to accommodate the needs of both defense and prosecutors dealing with classified information. The detainees there are represented by civilian and military counsel, and the U.S. Supreme Court has ruled that they enjoy the constitutional right of habeas corpus. The conditions of detention there are safe, secure, and humane, and comply with national and international standards, including Common Article 3 of the Geneva Conventions.

It is important to remember that the United States of America is engaged in armed conflict and has been since September 11, 2001. The September 18, 2001, Authorization for Use of Military Force, relied upon by both the Bush and Obama administrations, gives our military the legal authority to engage the enemy under appropriate circumstances.

Continue reading Ed Meese…

1) If one suggests that there may not be, at least as yet, enough evidence to overturn the initial police decision of not charging Mr. Zimmerman with a crime, then one is a de facto racist.

In other words, the liberal position of letting all the evidence be reexamined in a dispassionate fashion is now illiberal. And the illiberal one of charging someone with a felony without established probable cause is liberal. But just arresting and charging a suspect to let a judge or jury post facto decide whether there was ever probable cause for such an arrest is neither liberal nor consistent with American jurisprudence.

2) It is clear now that the African-American civil-rights hierarchy is concerned largely with maintaining power and influence by promulgating the theme of unending white racism — and the need for its exclusive agency to find redress and reparations from that eternal fact. That is a serious charge, but one easy to substantiate — whether we compare the commensurate outrage accorded the Duke case, the Skip Gates mess, the Tawana Brawley hoax, or the present Trayvon Martin tragedy, with the veritable neglect about the carnage of young African-American males in our cities, or the deliberate distortion that white-on-black crime is an epidemic when, in fact, black-on-black crime is — in addition to the fact of vastly higher incidences of black-on-white crime.

Continue reading Victor Davis Hanson…

The U.S. Constitution is, as Justice Ruth Bader Ginsburg has recently reminded us, “a rather old constitution.” In her parlance, old does not mean venerable or worthy of imitation. Speaking on Egypt’s Al Hayat TV, she advised constitution-drafting Egyptians to look to newer models; she singled out the Constitution of South Africa (1996), Canada’s Charter of Rights and Freedoms (1982), and the European Convention on Human Rights (1950).

Admittedly, the oath she swore to “bear true faith and allegiance” to the U.S. Constitution does not require Justice Ginsburg to recommend its adoption by all and sundry. There might be good reasons—rooted in history and circumstance—why a constitution suited to one people is not suited to another. Laws ought to be in accord with the general spirit of a nation, as Montesquieu, the great theorist of modern constitutionalism, argued. This was not the Justice’s point, however. She thinks there are blueprints worthy of export, just not the one ratified by Americans in 1787.

Her opinion is the fashionable one. A forthcoming article in the New York University Law Review confirms the declining influence of the U.S. Constitution. The reason?—“it is increasingly out of sync with an evolving global consensus on issues of human rights,” authors David S. Law and Mila Versteeg argue. This focus on rights (the more, the better) is evident in the documents Ginsburg endorsed. Two of them aren’t even constitutions in the usual sense of a plan of government. Instead, one is a supranational convention about human rights; another is a national charter of rights (added to the Canadian Constitution of 1867 when Canada, in 1982, finally became fully independent of the British Parliament).

Continue reading Diana Schaub…

President Obama entered the White House determined to overcome what he and his supporters regarded as the Bush administration’s poisonous legacy in the Middle East. And yet, though loath to acknowledge it, since the advent of the Arab Spring in Tunisia in December 2010 and January 2011 and its rapid spread throughout the region, the Obama administration has been struggling to formulate and implement its own version of the Bush Doctrine, according to which it is in the interest of the United States to promote freedom and democracy in the Arab world.

This unacknowledged reversal came at a time in which the president’s major policy initiatives in the Middle East were in disarray, in significant measure because they were ill-conceived and clumsily executed. Touting engagement with the Iranians, Obama’s smart diplomacy went nowhere. Tehran mocked him, flouting deadline after deadline set by the president for ensuring that Iran’s nuclear program was limited to civilian purposes by subjecting it to international supervision. And while the United States was reduced to silently observing the carnage, Iran brutally suppressed large public demonstrations against the corrupt presidential elections of June 2009. Having lost two years in fruitless efforts to sweet talk the Iranians, the Obama administration has over the last year expanded and intensified sanctions imposed by the Bush administration. By the president’s own secretary of defense’s estimates, Iran is on a path to developing the capacity to make a nuclear weapon within a year.

Continue reading Peter Berkowitz…

The big brown trout I was fishing for yesterday on the Limay River in Patagonia was nowhere to be found but I did manage to come across an old hang out of Butch Cassidy.

Being from Montana, where the Hole-in-the-Wall Gang pulled off their last job—a holdup of a Union Pacific train—before fleeing to South America, I was happy with this historical catch.

Legend has it that Butch became friends with Jarred Jones who ventured down to Argentina from Texas in 1887 to make his fortune. Jones didn’t find gold but he did manage to open a general storeat the mouth of the Limay. The old store, which is now a friendly restaurant, still holds the shops books, old photos, and a frontier atmosphere of a century ago.

Jones earned enough money at the store to purchase two big ranches, which he fenced off with barbed wire—the first to be seen around these parts. Today, barbed wire is strung across much of the 98 million hectares of the Patagonian Steppe to enclose vast quantities of sheep.

Unfortunately, a flock of sheep can gobble up great expanses of native grasses, and in southern Argentina, they’re clearing some serious vegetation. In addition to vegetation loss, overgrazing equates to lost habitat for other animals, and damages waterways with runoff and silt from erosion, which affects the fish, which affects tourism.

Continue reading Laura Huggins…

By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey Toobin, Linda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we’ll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

Continue reading Richard Epstein…

This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.

For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.

One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect.

Continue reading Richard Epstein…

I testified a few days ago at a House Judiciary subcommittee hearing on REAL ID implementation.  I expected to have harsh things to say about the way REAL ID has been handled by the National Governors Association and the Obama administration. And there was certainly plenty to criticize.  But what surprised me after a few years away from the issue is how much progress has been made, almost reluctantly, by all parties.  Much more secure identification is now within reach, though politics may delay the final steps much too long.  Here’s some of what I told the subcommittee:

Unfortunately, not everyone agrees with the need for better drivers’ license security. Opposition to REAL ID unites the nations’ governors and the ACLU. As a candidate, President Obama campaigned against REAL ID. And as a governor, Secretary Napolitano did the same. So it was no surprise that the Obama administration supported repeal of REAL ID and adoption of a softer approach, called PASS ID. Expecting PASS ID to be adopted, the administration soft-pedaled the states’ obligations under REAL ID.

Continue reading Stewart Baker…

The Upper West Side (UWS) of New York City operates in a moral and political universe different from my own. Currently, its confident progressive worldview has precipitated a major land use controversy. On the urging of the UWS “community” and its elected officials, the City’s Department of Planning has endorsed this modest proposal “for new or expanding establishments” on Broadway, Columbus, and Amsterdam avenues. These are major commercial streets, yet the proposal seeks to limit store frontage on them to forty feet for general retail and twenty-five feet for banks.

The proposal earns its “modest” label, because, as the Planning Department confidently notes, the rule would not limit the overall size of the business, the configuration of its interior space, or its kind of operations. Still, many businesses and banks currently exceed the proposal’s limit, often by multiples of four and five.

The locals insist that this regulation is needed to preserve the distinctive character of the neighborhood from large banks and major retail chains, which gobble up valuable frontage in ways that drive out small local businesses. The UWS is said to be “largely unique” because the space available for commercial use is limited relative to the population density, driving rents up. The supporters of the bill are determined to protect the “mom-and-pop” stores from unapologetic corporate behemoths. The local community board has unanimously approved this proposal over the vocal opposition of the City’s commercial real estate interests and passage now awaits approval by the City Council and then the Mayor. Let’s hope it doesn’t happen.

Continue reading Richard Epstein…

(photo credit: India Amos)

One of the things that turned up, during a long-overdue cleanup of my office, was an old yellowed copy of the New York Times dated July 24, 1992. One of the front-page headlines said: "White-Black Disparity in Income Narrowed in 80′s, Census Shows."

The 1980s? Wasn’t that the years of the Reagan administration, the "decade of greed," the era of "neglect" of the poor and minorities, if not "covert racism"?

More recently, during the administration of America’s first black president, a 2011 report from the Pew Research Center has the headline, "Wealth Gaps Rise to Record Highs Between Whites, Blacks and Hispanics."

While the median net worth of whites was ten times the median net worth of blacks in 1988, the last year of the Reagan administration, the ratio was nineteen to one in 2009, the first year of the Obama administration. With Hispanics, the ratio was eight to one in 1988 and fifteen to one in 2009.

Race is just one of the areas in which the rhetoric and the reality often go in opposite directions. Political rhetoric is intended to do one thing — win votes. Whether the policies that accompany that rhetoric make people better off or worse off is far less of a concern to politicians, if any concern at all.

Democrats receive the overwhelming bulk of the black vote by rhetoric and by presenting what they have done as the big reason that blacks have advanced. So long as most blacks and whites alike mistake rhetoric for reality, this political game can go on.

Continue reading Thomas Sowell…

Instead of convincing critics, Attorney General Holder’s defense of the Obama administration’s targeted killing policy earlier this month seems to have emboldened them. "The idea that the executive branch can be judge, jury, and executioner … totally undoes the system of checks and balances," charged American Civil Liberties Union (ACLU) Executive Director Anthony Romero after Holder’s talk at Northwestern University’s law school. Romero and others have been especially scathing about the lawlessness of last fall’s drone killing in Yemen of U.S. citizen and al Qaeda affiliate leader Anwar al-Awlaki.

In this new age of drone warfare, probing the constitutional legitimacy of targeted killings has never been more vital. The Obama administration has carried out well over 200 drone strikes in its first three years, and the practice promises to ramp up even more in the next few years as the United States decreases its footprint in Afghanistan and relies even more heavily on special operations and covert actions centered around the use of drones. There are contested legal issues surrounding drone strikes, and — in contrast to issues like military detention and military commissions — courts have not pushed back against the presidency on this issue. But judicial review is not the only constitutional check on the presidency, especially during war. Awlaki’s killing and others like it have solid legal support and are embedded in an unprecedentedly robust system of legal and political accountability that includes courts but also includes other institutions and actors as well.

Continue reading Jack Goldsmith…

The relevant portion begins at about the 4:15 mark.

Most polls show a decided unease to preempt in Iran, at least for now. The nearly inexplicable failure to encourage the 2009 Iranian protests seems more regrettable each month. Trying to lecture and embarrass Israel the last three years led nowhere. The Syrian dissidents are now infighting. Assad, once well-spoken-of by the likes of Nancy Pelosi and Hillary Clinton, is receiving Russian arms, and seems to be silently warning to fight to the last bunker, atop supposedly massive amounts of WMD.

Libya — no U.S. congressional authorization, exceeding the much-referenced U.N. authorizations, and chaos in the postbellum era — is a blueprint for nothing. The verdict is out on the Arab Spring; but confidence mostly hinges on believing the supposedly reformed Muslim Brotherhood and affiliates either do not have broad support or are not as radical as they sound.

The once-”good war” in Afghanistan is being dissected every which way in terms of getting out without avoiding a 1975 Vietnam-like scramble. Certainly the old mantra that we took our eye off the ball in Iraq needs revisiting — given that when we put it back on Afghanistan and poured manpower and capital into the country, things either did not improve or got worse. In any case, four ground commanders in three years, diplomatic musical chairs, surges cum withdrawal deadlines, and a disengaged commander in chief did not send the message of a new administration finally bent, as promised in summer 2008, on winning the “real” or “good” war.

The Middle East Mess…

A hugely consequential development in the Obama Administration’s “sanctions only” strategy for Iran has been Saudi Arabia’s assurance to purchasers of Iran’s oil that Saudi — the only country with the capacity to do so — would meet all calls for supply.  That has given buyers the confidence to forego contracts with Iran knowing their needs will be met.

The Saudi pledge was essential in persuading EU countries to commit to shifting away from Iranian oil purchases.  Europeans are among the largest purchasers of Iranian oil, and the biggest purchasers are Europe’s shakiest economies.  Even with their economic worries and the deadline for giving up Iranian oil not kicking in until June, Italy has already reduced its purchases by 12% and Spain by 37%.

But Saudi Arabia’s oil minister appeared to be drawing back from their substitution pledge, saying, according to the Wall Street Journal, that the kingdom will respond to its customers’ demands for more oil, but “it doesn’t want to get involved in the politics behind the sanctions.”

What accounts for the recalibration of Saudi Arabia’s position on Iran?  News reporting has focused on posturing in advance of a producers meeting that includes Iran at which quotas will be renegotiated, but that is an unlikely precipitator.  The Saudis are pretty far down the road of supporting both sanctions and the threat of military force against Iran (recall the memorable leak from U.S. diplomatic documents in which the Saudis tell us to “cut the head off the snake.”)

It seems likelier an incidence of timing in the wake of President Obama’s declaration to American-Israeli Political Action Committee that U.S. policy will not settle for containing a nuclear Iran.  The President’s earlier basketball court tough talk that he doesn’t bluff wasn’t adequate to dispel concern that has bluffing about preventing Iran from acquiring nuclear weapons, and so at the AIPAC meeting he publicly disavowed the policy option favored by many in his administration, and many of his supporters outside it, who argue that Iran can be contained as a nuclear-armed Soviet Union was contained, as a nuclear-armed China is contained, as a nuclear-armed North Korea is being contained, as a nuclear-armed Pakistan is being contained.

That President Obama felt the need to rule out acceptance of a nuclear-armed Iran is not at variance with Saudi policy.  But the Saudis may be getting uncomfortable at the extent to which talk of Iran is a tense and visible U.S.-Israeli dialogue.  More than once the Saudis (and other Arab states) have suggested they would look the other way if Israel were to attack the Iranian nuclear program.  But it is significant that they are beginning to hedge their political support even for the sanctions regime.  We may be reaching the limit of what the Saudis are willing to sign up for, and that will place significant restrictions on the Administration’s current strategy.

(photo credit: A. Davey)