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What Obamacare and the latest NSA scandal have in common.


This article appeared at The Daily Beast on Tuesday, October 1, 2013. Read it there.

It's a telling coincidence that the latest scandalous revelation about the National Security Agency (NSA) is hitting the front pages just as the enrollment period specified by the Affordable Care Act (ACA, a.k.a. Obamacare) is getting started.

Each of these things underscores different but related aspects of the virtually unlimited state that has ruined the peaceful slumber of libertarian-minded Americans for decades. Whether we're talking about surveilling citizens without any sort of serious legal oversight or forcing them to participate in economic activity in the name of health care über alles, the answer always seems to favor the growth and power of the state to control more and more aspects of our lives. Is it any wonder that a record-high percentage of Americans think the federal government is too powerful?

In an explosive story, The New York Times detailed the ways in which the NSA, which was originally supposed to spy on communications among foreign agents and provide intelligence on threats posed by noncitizen actors and governments, is increasingly focused on domestic activities. Since 2010, according to an NSA memo obtained by the Times, "The agency was authorized [by officials in the Obama administration] to conduct 'large-scale graph analysis on very large sets of communications metadata without having to check foreignness' of every e-mail address, phone number or other identifier."

Through a process known as "contact chaining," the NSA is able to suck up all sorts of email addresses, phone numbers, social-media-network information, and more without regard to the physical location or citizenship of each data point. The agency, reports the Times, then "enriches" that metadata "with material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information," and more. The result, as George Washington University law professor Orin Kerr puts it, is "the digital equivalent of tailing a suspect."

The only restriction on the practice appears to be that the NSA must make a claim that their data-gathering serves a foreign-policy justification. Which is never a problem for the agency since, as a spokesperson told the Times, "All of NSA's work has a foreign intelligence purpose." While it's clear that the contact chaining results in vast webs of information that rope in Americans completely uninvolved in terrorism, the NSA refuses to divulge any relevant numbers or incidents.

The NSA originally sought such unrestricted use of metadata and other information involving Americans back in 1999 but was rebuffed due to concerns that it was not legal under the Foreign Intelligence Surveillance Act (FISA), which governs the agency. Legal opinions within presidential administrations—and after the 9/11 attacks—change, though, and there's some indirect evidence that the NSA may have engaged in contact chaining during the Bush years. Despite his stated interest in protecting civil liberties, Barack Obama has disappointed even his staunchest defenders when it comes to constitutional limits on executive power and the surveillance state. Indeed, he has upped the ante from the Bush administration by claiming not simply the right to hold U.S. citizens indefinitely without charging them but the right to unilaterally kill them.

The one thing we know from past experience is that the NSA has consistently abused its powers. During the Vietnam War, for instance, the agency routinely intercepted communications outside its legal purview and ran an illegal operation known as "Minaret" that spied on anti-war figures ranging from boxer Muhammad Ali to syndicated humorist Art Buchwald to Sen. Frank Church (D-ID). The latter would chair hearings in the 1970s exposing massive illegal and improper actions by the NSA, FBI, and CIA, giving rise to FISA, which was passed in 1978. In 2008, ABC News reported on NSA operatives listening in on and sharing recordings of phone-sex calls between U.S. troops and their spouses in the States and routinely listening in on Red Cross and other relief workers as well.

The legal justification for the NSA's actions, according to the Times, is the 1979 Supreme Court ruling that found "no expectation of privacy about what numbers they had called." A more recent yet equally unfortunate Supreme Court decision—the 2012 one upholding President Obama's health-care-reform plan—is the reason that the Obamacare exchanges are theoretically going to be up and running come October 1 (pay no attention to the massive and mounting delays with the program).

The clearest argument against Obamacare was always the specifically libertarian one against the individual mandate, or the idea that the government could force you not only to follow certain rules if you engaged in commercial or economic activity but that it could force you to engage in commercial or economic activity in the first place.

Like most federal laws dealing with powers specifically enumerated in the Constitution, the legislative reasoning behind the mandate is derived from the commerce clause, which gives Congress the right to "regulate commerce … among the several states." Once interpreted by legislators and courts alike in a narrow sense, at least since the 1942 ruling Wickard v. Filburn, the commerce clause has been interpreted to allow the federal government virtually unlimited power. Indeed, during her confirmation hearing, Justice Elena Kagan granted that she believed Congress could legitimately pass a law mandating that people buy broccoli. While it would be a "dumb law," she said it would be constitutional. (This short video,"Wheat, Weed, and Obamacare" is a concise and engaging discussion of differing views regarding the commerce clause.)

In the decision affirming the individual mandate, John Roberts effectively rewrote the legislation by saying it could be enforced through Congress's taxing power rather than on commerce-clause grounds. Some libertarian-minded observers took solace in that fact, but the net result is the same: When the government tells you to jump, we're legally bound to say, "How high?"

Conventional politics in terms of Team Red versus Team Blue offer little insight into the current situation, since by and large Republicans and Democrats are fine with a massive and growing state as long as most of the spending and edicts work to the benefit of each group's favored constituencies. Whatever lip service they pay to the individual, neither party betrays much interest in limiting the size and scope of government. Indeed, it's not an accident that Obamacare—including the individual mandate—was inspired by a proposal floated back in the '90s by the GOP front group the Heritage Foundation. And it's not an accident that when it comes to spending, regulating, sidestepping executive branch limits, and dropping bombs, Barack Obama resembles no one so much as George W. Bush.

Which is something to think about come tomorrow, when a new fiscal year starts without a budget because House Republicans want to spend $3.5 trillion and Senate Democrats want to spend $3.7 trillion (spending in 2001 came in at about $1.9 trillion in nominal dollars). Indeed, it's something to think about whether you are excited to check out Obamacare's insurance exchanges or you view their very existence as simply the latest mile marker on the road to serfdom.

And here's something else to think about: there's a reason why a record-high 60 percent of Americans agree that the government has too much power and why libertarian attitudes are on the rise (even among GOP legislators, of all places!). It must be because people are actually following the news, most of which is pretty appalling, even (especially?) when you get past the partisan spectacle of it all.

This article appeared at The Daily Beast on Tuesday, October 1, 2013. Read it there.