Author Archive
Our Inescapable President
I’m late to the pile-on because I’m a bad American, and I don’t watch enough football, but not quite two weeks ago, President Obama managed to politicize what for many is a hallowed Monday night ritual.
In the New York Post, the paper of record for those of us who grew up in one of the only red counties on the Jersey Shore, Kyle Smith notes that Obama’s ostensible purpose for inserting himself into Monday Night Football was to proclaim Hispanic Heritage Month, but the president put this in as well:
Our nation faces extraordinary challenges right now, and our ability to tackle them will depend on our willingness to recognize that we’re all in this together, that we each have an obligation to give back to our communities, and we all have a stake in the future of this country.
Generic enough, perhaps, unless you’re oblivious to the political backdrop of the president and his party pushing desperately to pass national health care.
Smith is rightfully exasperated by the perpetual campaign mode and Obama’s omnipresence in every broadcast medium. But–not that it’s a competition–I’d had more than my fill of this sort of thing eight months ago, a month into Obama’s presidency:
When there’s no escape from our national talk-show host-when he appears constantly above every gym treadmill-is it any wonder that we typically want his show cancelled just a few seasons in? Is it any wonder we get sick of him?
You can make too much of the notion of presidential “dignity.” It’s good when the federal chief executive officer fights against the royal aura that inevitably surrounds the office by, for example, walking his inaugural parade route (Jefferson) or buttering his own english muffins (Jerry Ford).
But it seems to me that doing a commercial for George Lopez’s lousy sit-com takes it a bit too far:
(When I saw this on TV recently, I was sure it was some kind of Forrest Gump cinemagic. Not so.)
More to the point, can the president give us an occasional break from his relentless omnipresence? Apparently not.
Six months into his presidency, the Politico reported, Obama had already “uttered more than half a million words in public.” In one whirlwind week last month, the president made his third appearance on “60 Minutes,” gave a major speech on the financial crisis the next day, and made a record five talk-show appearances the following Sunday. And on the eighth day, He did Letterman.
My suspicion is that as his popularity continues to drop, Obama is going to discover that there are diminishing returns to presidential media appearances, and that he might do better by letting the country forget about him for a while. But will he be able to restrain himself?
Obama: ‘All Part of the Job’
Via the Spectator’s Alex Massie, comes this ABC News report on last Thursday’s Obama town hall in New Orleans:
“Why do people hate you?”, a fourth-grade boy asked Obama …. “They’re supposed to love you. And God is love.”
Massie comments,
Obama’s answer is actually pretty reasonable. But this is what happens when you make a mere elected politician assume the status of Priest-King. It is, in its own way, a corrupting influence. I don’t blame the kid asking the question since, heck, there are plenty of professional journalists in DC who basically think along the same lines. This isn’t Obama’s fault, but it’s a problem nonetheless.
True enough, Americans had an irrational conception of presidential responsibility long before 44 took office. Still, Obama’s far from blameless. At the same town hall, Obama commented :
“You know, I listen to, sometimes, these reporters on the news: Well, why haven’t you solved world hunger yet?” he joked.
Ha: silly reporters! They should ask the president about something he’s actually promised to do, like provide “a cure for cancer in our time,” or stop the oceans’ rise, or “create a Kingdom right here on Earth.”
Obama’s right that it’s “part of the job” that the president gets an outsized share of credit or blame for the direction of the country. It’s been that way for a long time. As Thomas Cronin put it in his classic 1970 essay “Superman: Our Textbook President”:
on both sides of the presidential popularity equation [the president’s] importance is inflated beyond reasonable bounds. On one side, there is a nearly blind faith that the president embodies national virtue and that any detractor must be an effete snob or a nervous Nellie. On the other side, the president becomes the cause of all personal maladies, the originator of poverty and racism, inventor of the establishment, and the party responsible for a choleric national disposition.
Barack Obama didn’t create this view of presidential responsibility; he inherited it. But, other than the occasional “change is hard” caveat, it’s not as though Obama’s sought to dispel the irrational expectations people invest in the office. To the contrary, he’s done more than any president in living memory to encourage the view that the president is a benevolent father protector endowed with magical powers — a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. It’s the sort of view that people ought to — but often don’t — grow out of by, say, fifth grade. And a good deal of the burgeoning public dissatisfaction with Obama stems from his aggressive attempts to secure powers to match the boundless responsibilities he embraces.
The Emperor’s Green Clothes
According to Thursday’s New York Times, “the Obama administration announced on Wednesday that it was moving forward on new rules to regulate greenhouse gas emissions from hundreds of power plants and large industrial facilities.”
President Obama has said that he prefers a comprehensive legislative approach to regulating emissions and stemming global warming, not a piecemeal application of rules, and that he is deeply committed to passage of a climate bill this year.
But he has authorized the Environmental Protection Agency to begin moving toward regulation, which could goad lawmakers into reaching an agreement.
In the book that popularized the phrase “the Imperial Presidency,” historian Arthur Schlesinger Jr. focused overwhelmingly on the vast growth of presidential power in foreign affairs. But as an inveterate New Dealer, Schlesinger had a blind spot where it came to the Emperor’s burgeoning powers at home.
The Supreme Court’s virtual abandonment of the nondelegation doctrine after 1935 paved the way for the modern administrative state, in which Congress all too eagerly cedes legislative power to the executive branch. As the Obama administration’s latest actions on global warming show, the Imperial Presidency comes in green, too. From my column in the Washington Examiner this week:
James Madison believed that there could be “no liberty where the legislative and executive powers are united in the same person.” And yet, here we are, with those powers united in the person of a president who has pledged to heal the planet and stop the oceans’ rise.
You Don’t Have to Be a Czar, Baby, to Be in My Show
Raging against “czars” seems all but obligatory these days for movement conservatives. The proliferation of Obama administration czars means “a giant expansion of presidential power,” warns Karl Rove, former domestic policy czar for the Bush administration–which I suppose proves once again that the capacity for embarassment is a career liability in this town.
Conservatives ought to be concerned about the growth of executive power. But as I argue in my Washington Examiner column this week, “czars” are pretty far down any serious list of executive-power concerns:
conservatives’ current bout of czar mania elevates symbolism over substance. All the focus on a scary moniker for certain executive officials misses the real problem: Unconstitutional delegation of power to the executive branch. Whether those illegitimate powers are exercised by unconfirmed presidential advisers or the president himself is quite beside the point….
Often, czars are mere figureheads, appointed to signal concern over the latest hot-button issue. As one presidential scholar puts it, “when in doubt, create a czar.”
True, it’s problematic that some of these appointees aren’t vetted by the Senate, and that presidents claim czars don’t have to answer to Congress — as when the Bush administration asserted in 2002 that executive privilege shielded then-homeland security czar Tom Ridge from testifying on the Hill.
But as the Washington Independent’s Dave Weigel has pointed out, many of the “czars” who appear on the conservative target list already have to be confirmed by the Senate. Others don’t, but when Obama is hell-bent on taking over the health care sector — one-sixth of the U.S. economy — it’s bizarre to agonize over the allegedly unchecked power exercised by the likes of the AIDS and urban affairs czars.
Similarly, while it’s great to see a nutter like Van Jones denied a federal salary, few of those cheering Jones’ defenestration can coherently explain what the green jobs czar actually does, or the threat he was supposed to represent.
What, was Jones going to give 9/11 “Truthers” and black nationalists jobs weatherizing homes? Will we stop wasting money on such projects now that he’s gone?
More here.
Good News: 9/11 Didn’t ‘Change Everything’
On the eighth anniversary of the terrorist attacks on New York and D.C., things are going much better than most of us dared hope in the initial aftermath of that horrible day. We’re still a secure, prosperous, and relatively free country, and the fear-poisoned atmosphere that governed American politics for years after 9/11 has thankfully receded.
Not everyone’s thankful, however. Boisterous cable gabber Glenn Beck laments the return to normalcy. The website for Beck’s “9/12 Project” waxes nostalgic for the day after the worst terrorist attack in American history, a time when “We were united as Americans, standing together to protect the greatest nation ever created.” Beck’s purpose with the Project? “We want to get everyone thinking like it is September 12th, 2001 again.”
My God, why in the world would anyone want that? Yes, 9/12 brought moving displays of patriotism and a comforting sense of national unity, but that hardly made up for the fear, rage and sorrow that dominated the national mood and at times clouded our vision.
But Beck’s not alone in seeing a bright side to national tragedy. Less than a month after people jumped from the World Trade Center’s north tower to avoid burning to death, David Brooks asked, “Does anybody but me feel upbeat, and guilty about it?” “I feel upbeat because the country seems to be a better place than it was a month ago,” Brooks explained, “I feel guilty about it because I should be feeling pain and horror and anger about the recent events. But there’s so much to cheer one up.”
Filed under: Foreign Policy and National Security; Government and Politics; Political Philosophy
Method to the Meandering
For Calvin Coolidge, one of our greatest presidents, reticence was both a personality trait and a political strategy. As Coolidge told his Commerce secretary and successor, Herbert Hoover, “Nine-tenths of [visitors to the White House] want something they ought not to have. If you keep dead still, they will run down in three or four minutes.”
It seems that Ronald Reagan,–an admirer of Coolidge’s who hung Silent Cal’s portrait in the Cabinet Room–adopted a similar strategy, though one more in keeping with Reagan’s gregarious persona. Alas, Ted Kennedy, who recounted the story in his upcoming memoir, wasn’t sharp enough to figure out what was going on. From an article on the Kennedy book in today’s New York Times:
[Senator Kennedy] said it had been difficult to get Reagan to focus on policy matters. He described a meeting with him that he and other senators had sought to press for shoe and textile import limits.
The senators were told that they would have just 30 minutes with the president. Reagan began the meeting, the book said, commenting on Mr. Kennedy’s shoes — asking if they were Bostonians — and then talking for 20 minutes about shoes and his experience selling shoes for his father. “Several of us began conspicuously to glance at our watches.” But to no avail. “And it was over!” Mr. Kennedy said. “No one got a word in about shoe or textile quota legislation.”
Huh. Go figure.
(For an introduction to Coolidge’s virtues, try John Derbyshire’s wonderfully strange and charming novel Seeing Calvin Coolidge in a Dream.)
Neoconsensus
Since Rich Lowry, Karl Rove, and Charles Krauthammer have all admitted that Obama’s anti-terror policies are substantially the same as Bush’s, I assume they’ll refrain from arguing that Obama’s making the country less safe, and they’ll hold the recriminations if and when there’s another terrorist attack. Right?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Dick Cheney: Obama’s Enabler
That’s the theme of my Washington Examiner column this week:
Dick Cheney’s “Shut Up and Listen” tour continued last week on CBS’s “Face the Nation.” There, the former veep reiterated his favorite theme: Obama is putting America at risk by “taking down a lot of those policies we put in place that kept the nation safe.”What in the world is Cheney talking about? Granted, Obama’s anti-terror policies are clouded by rhetorical “Hope” and euphemism, and the new administration is less given to chest-thumping than its predecessor. Otherwise, Obama’s approach to terrorism is virtually identical to Bush/Cheney’s.
Harvard Law prof and former Bush OLC head Jack Goldsmith makes a similar point in a New Republic piece out today, though Professor Goldsmith is happier about the continuity than I am. For more, see Glenn Greenwald.
Filed under: Foreign Policy and National Security; Government and Politics; Political Philosophy
Cultwatch: Union Station, New York Times
Snapped this pic at DC’s Union Station this afternoon, on my way from the Amtrak platform to the Metro (where the machine dispensed a metrocard featuring a grinning BHO). Readers planning to visit DC will be happy to know that you can get all your Obama-related tchotchkes and talismans in one convenient locale right after you get off the train.
Say what you will about hapless Jerry Ford, but he had this going for him: nobody ever thought of making an action figure in his image.
In other cult-related news, today’s New York Times has an “Op-Extra” sidebar,with “excerpts from Opinion Online.” Our friend Judith Warner, last seen discussing cougar fantasies about “sex with the president,” weighs in about the shirtless Obama cover on the current Washingtonian:
“Just as having a president who can string a sentence together with subject-verb agreement makes us all look a little bit smarter, just as having a really admirable family in the White House makes us all seem a little less dysfunctional, perhaps having a president who can look good in a bathing suit is in some bizarre way good for the nation.”
Yeah, I mean, God knows it’s been good for Russia.
Obama’s First Signing Statement
President Obama issued his first signing statement last week. While approving the $410 billion omnibus appropriations bill, he reserved the right to reinterpret, evade, or ignore a number of the bill’s provisions. To some conservatives, that smelled like vindication; and some liberals found it fishy. Who’s right? Both, to some extent.
During the Bush years, “signing statements” came to stand for a much broader set of issues than the practice itself. After President Bush used one to basically announce that, veto-proof majority or no, he didn’t have to follow the McCain Detainee Treatment Act, “signing statements” in the public mind became shorthand for the Bush theory that the president is sole constitutional “decider” on all matters related to national security—in much the same way that the PATRIOT Act became shorthand for overzealousness in homeland security. The obnoxiousness of each—open defiance in the signing statement case, the dopey Orwellianism of the acronym with PATRIOT—made them symbols, even though neither represented the worst abuses in the fight against terrorism.
But what really matters is the underlying constitutional theory, not the particular quasi-legislative device it’s reflected in. Which is worse: openly announcing that you’re not going to obey new congressional restrictions on torture—as Bush did with the 2006 McCain Amendment—or secretly violating the old ones for years? The latter, clearly. At least a signing statement puts you on notice.
On the campaign trail in 2008, Obama, unlike McCain, never promised to end the practice of signing statements entirely. Obama’s position was more nuanced. When it comes to signing statements, some nuance is appropriate. I don’t agree with the ABA’s blanket condemnation of the practice. As the Congressional Research Service has pointed out, despite the Supreme Court’s 1983 repudiation of the legislative veto, Congress continues to smuggle legislative vetoes into omnibus spending bills. One could argue that the president’s only recourse is to veto the bill–and more vetoes of spending bills would surely be welcome. But it seems to me that in such cases, issuing a signing statement is a venial sin at worst. There’s a vast difference between that sort of signing statement and one that asserts that the president cannot be bound by a law barring torture.
Most of the objections Obama lodged in his signing statement fall well short of the Bush-Cheney end of the spectrum. But there’s at least one that looks particularly dodgy:
Filed under: Foreign Policy and National Security; Government and Politics; Law and Civil Liberties
A National Talk-Show Host with Nuclear Weapons
Over at the DC Examiner, I have a piece tied to President Obama’s address before Congress tonight. It’s called “The President Talks Too Much.” An excerpt:
In recent weeks, the president has been anywhere and everywhere, with a campaign-style blitz of media appearances and town hall meetings. But, hard as it is to imagine in this era of the omnipresent president, there was a time when presidents weren’t seen much and were heard even less. There might be a lesson there for Obama.
Our founding fathers didn’t want a president who’d perpetually pound the bully pulpit. They viewed presidential speechifying as a sign of demagoguery, and thought Congress should take the lead on most matters of national policy. They expected the nation’s chief executive to pipe down, mind his constitutional business, and keep his hands to himself.
The “permanent campaign” that dominates modern presidential politics would have appalled our forefathers. Accepting the 1844 Democratic nomination, James K. Polk described the custom of the time: “the office of president of the United States should neither be sought nor declined.”
When 19th-century candidates spoke publicly, they sometimes felt compelled to apologize, as 1872 Democratic contender Horace Greeley did, for breaking “the unwritten law of our country that a candidate for President may not make speeches.”
The modern ritual of the State of the Union–with members of Congress rising to clap for every outsized promise–has grown weirdly anti-republican. Congressmen and women are members of a coordinate branch, and they ought not to be clapping maniacally like so many members of the Supreme Soviet. (George W. Bush’s last SOTU was interrupted 72 times by applause).
It would be nice if Obama returned to the Jeffersonian tradition of writing out the State of the Union and sending it over by messenger, rather than delivering it in person before Congress assembled. Of course, that’s never going to happen. There is one thing he could do, however, that would endear him to millions of Americans in the viewing public: start the speech with the following words:
“Ladies and Gentlemen: Please hold your applause to the end.”
Unintentionally Funny Quote of the Week
“The president hasn’t done as good a job of preparing the nation for the tradeoffs necessary to reconcile the hope agenda with the fear agenda.”
–William Galston, Brookings Institution
For more on Obama as “a bundle of contradictions,” see here.
Stimulus Package = The Dems’ PATRIOT Act
That’s what Steve Horwitz says here. Like the PATRIOT Act, it’s a preexisting wishlist of initiatives being rammed through in an atmosphere of hysteria. Where the Obama administration has, to its credit, backed away from the language of war and crisis when it comes to international affairs and homeland security, the Obama team seems all too willing to revert to Bush-style fearmongering in the service of greater state involvement in the economy.
Yesterday’s coverage in the New York Times (of all places) suggests that the stimulus package is a Trojan Horse effort designed to make dramatic and likely permanent changes in the federal role in health care and education, among other things:
For Democrats, [the stimulus package] is also a tool for rewriting the social contract with the poor, the uninsured and the unemployed, in ways they have long yearned to do….
Altogether, the economic recovery bill would speed $127 billion over the next two and a half years to individuals and states for health care alone, a fact that has Republicans fuming that the stimulus package is a back door to universal health coverage…. The federal share of Medicaid spending now ranges from 50 percent in higher-income states like New York and Connecticut to more than 73 percent in poor states like Mississippi and West Virginia. Under the House bill, the federal share would be increased by at least 4.9 percentage points in every state, and by much more in states with large increases in unemployment.
Critics and supporters alike said that by its sheer scope, the measure could profoundly change the federal government’s role in education, which has traditionally been the responsibility of state and local government…. In recent years the federal government has contributed 9 percent of the nation’s total spending on public schools, with states and local districts financing the rest. Washington has contributed 19 percent of spending on higher education. The stimulus package would raise those federal proportions significantly. The Department of Education’s discretionary budget for the 2008 fiscal year was about $60 billion. The stimulus bill would raise that to about $135 billion this year, and to about $146 billion in 2010. Other federal agencies would administer about $20 billion in additional education-related spending. “This really marks a new era in federal education spending,” said Edward Kealy, executive director of the Committee for Education Funding, a coalition of 90 education groups.
Does the Trojan-Horse theory sound cynical? Well, as my colleague Will Wilkinson points out, what this country needs, now and ever, is a healthy dose of constructive cynicism:
“There are some who question the scale of our ambitions, who suggest that our system cannot tolerate too many big plans,” President Obama observed in his [inaugural] address. “Their memories are short,” he said, “for they have forgotten what this country has already done, what free men and women can achieve when imagination is joined to common purpose and necessity to courage.”
This is a tediously familiar and dangerous message. Can you recall the scale of our recent ambitions? The United States would invade Iraq, refashion it as a democracy and forever transform the Middle East. Remember when President Bush committed the United States to “the ultimate goal of ending tyranny in our world”? That is ambitious scale.
Not only have some of us forgotten “what this country has already done … when imagination is joined to a common purpose,” it’s as if some of us are trying to erase the memory of our complicity in the last eight years—to forget that in the face of a crisis we did transcend our stale differences and cut the president a blank check that paid for disaster. How can we not question the scale of our leaders’ ambitions? How short would our memories have to be?
The Laying on of Hands
Honestly, a 900-word Politico article on “the Power of Obama’s Hand”? It’s going to be a long four-to-eight years. (Hat tip: Dave Weigel).
Dear Leader
Two recent items in the “Cultwatch” category:
NPR has audio of an Atlanta student chorus that will be singing at the inaugural festivities. “Dear Obama hear us sing/we’re ready for the change that you will bring…” (hat tip: David Boaz)
And here’s video of some 800 Chicago elementary school students whose teachers had them form a 150-foot human portrait of the president-elect’s face:
(hat tip: Matt Welch)
What Is It Good For? Centralizing Power.
The Politico reports that Vice President-elect Joe Biden has been comparing our current economic troubles to the 9/11 attacks.
“We’re at war,” Biden told congressional leaders of both parties during their sit-down with Barack Obama in the Capitol, according to two sources familiar with the exchange.
Libertarians and conservatives who fear that Obama’s inauguration heralds the coming of a new New Deal have new cause for discomfort, then. FDR’s embrace of the war metaphor was central to building support for the New Deal:
Franklin Delano Roosevelt, elected in a landslide in 1932, wasn’t the only political figure to analogize America’s economic collapse to an attack by a hostile power; his predecessor Hoover had made the comparison regularly. F.D.R. employed the war metaphor far more effectively, however. Roosevelt’s first inaugural address tends to be remembered as an attempt to calm the public, a warning against “fear itself.” The martial metaphors that appear throughout the speech make clear, though, that F.D.R. wanted fear replaced by collectivist ardor. Americans were to move forward as “a trained and loyal army,” with “a unity of duty hitherto evoked only in time of armed strife.” Should the normal balance of legislative and executive powers prove insufficient, Roosevelt concluded, “I shall ask the Congress for the one remaining instrument to meet the crisis–broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.
Two days after his inauguration, Roosevelt used the Trading with the Enemy Act to order the closure of all American banks. Passed during World War I, the act was designed to restrict trade with hostile foreign powers “during the time of war.” Ignoring that limitation, Roosevelt wielded it in peacetime against Americans. It would not be the last time his administration would invoke powers forged in the Great War to battle the Depression. “Progressives turned instinctively to the war mobilization as a design for recovery,” wrote historian William Leuchtenburg in his essay “The New Deal and the Analogue of War,” “There was scarcely a New Deal act or agency that did not owe something to the experience of World War I.”
Of course, viewing anything Joe Biden says as an example of calculated rhetoric may be a mistake. As the character Hesh Rabkin once noted of the Sopranos matriarch Livia, “Between brain and mouth there is no interlocutor.”
Filed under: Cato Publications; General; Government and Politics
Carping about TARP
In its story yesterday about Obama pushing for release of the second half of the TARP boodle, the New York Times reported that
Lawmakers are angry about many aspects of the bailout, which they intended for the government purchase of troubled assets, particularly mortgage-backed securities, but instead has been used to recapitalize banks and even prop up failing Detroit automakers.
Initially, I had a lot of sympathy for this critique. I had a little burst of outrage myself right before Christmas when I read the following quote from White House spokesman Tony Fratto, explaining why the White House was going to use the TARP authority to bail out GM and Chrysler–despite Congress’s having just voted down the auto bailout:
“Congress lost its opportunity to be a partner because they couldn’t get their job done,” Fratto said. “This is not the way we wanted to deal with this issue. We wanted to deal with it in partnership. What Congress said is . . . ‘We can’t get it done, so it’s up to the White House to get it done.’ “
So by not giving the president the power to bail out the automakers, Congress has “lost its opportunity to be a partner,” and the president’s going to do it anyway? By what authority? The TARP statute gives the Secretary of the Treasury the power to buy “troubled assets” from “financial institutions.” Yet in the past three months TARP’s morphed from a plan to buy toxic mortgage-backed securities, to one that involves buying shares in banks (like Wells Fargo ) that aren’t themselves troubled, to a program giving loans to car companies, which surely can’t qualify as “financial institutions.”
More Bush administration lawlessness, I thought. We already knew they didn’t care about the Constitution. Now they’re showing they can’t be restrained by plain statutory language.
And then I looked at the statute. And it turns out the definitions of “troubled asset” and “financial institution” are so gobsmackingly, irresponsibly broad, that the administration has at least a colorable argument that it can legally reshape the bailout in the ways it has. ”Troubled assets” include:
any… financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability
And “financial institution”:
means any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, established and regulated under the laws of the United States or any State, territory, or possession of the United States [emphasis added]
That’s why, as the University of Chicago’s Randy Picker argues, you can probably “fit cars under the TARP.” (For a contrary argument, see here ).
Given how far the administration has pushed loose legislative language in the past, can Congress credibly claim to be surprised here? Lawmakers may, as the Times reports, be “angry” about the scope of the bailout, but when they write language that broad, their outrage is more than a day late and $700 billion short.
Filed under: Finance, Banking & Monetary Policy; Government and Politics; Law and Civil Liberties
Shocked, Shocked.
Sen. Jon Kyl (R.-AZ) on the judicial filibuster, circa 2005 [.pdf]:
Republicans seek to right a wrong that has undermined 214 years of tradition – wise, carefully thought-out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations but were never used to that end is an important indicator of what is right, and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore….
My friends argue that Republicans may want to filibuster a future Democratic President’s
nominees. To that I say, I don’t think so, and even if true, I’m willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned.
Uh, never mind:
Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal
For the case against the case against the judicial filibuster, check here and here. For good arguments against the JF, check here.
Filed under: General; Government and Politics; Law and Civil Liberties
‘After’ the Imperial Presidency?
Jonathan Mahler has a smart, informative feature on executive power in this week’s New York Times Magazine. I object only to the title, “After the Imperial Presidency.” As Mahler’s piece makes clear, the title could have used a question mark, at the very least.
Mahler writes:
Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.
Some prominent commentators — Jack Goldsmith and Jeffrey Rosen among them — have noted the “irony” that an administration monomaniacally committed to the growth of presidential power has allegedly weakened the presidency with its unilateralism and contempt of Congress. Given the powers the office retains and continues to accrue, that’s an irony that’s hard to savor. As Mahler notes, “it’s worth keeping in mind that in the final year of Bush’s presidency — while facing a Democratic Congress and historically low approval ratings — he was able to push through a federal bailout bill that vested almost complete control over the economy in the Treasury secretary (who reports to the president), not to mention a major rewriting of the 1978 Foreign Intelligence Surveillance Act that will make it easier for the White House to spy on American citizens.”
Indeed, Mahler documents how political realities— and in Obama’s case, perhaps, the prospect of actually taking power — led both candidates to move away from their early criticisms of Bush-style “deciderism,” and flip flop on torture (McCain) and wiretapping (McCain and Obama).
In explaining the post-9/11 growth of executive power, Mahler properly focuses on the twin problems of congressional cowardice and poisonous partisanship. In the Bush years, all too many congressional Republicans put party unity over institutional responsibility. That’s a common vice under unified government, which may be why Mahler hardly sounds optimistic when he quotes Senator Levin: “When I asked Levin what needs to happen for Congress to take back the rest of the ground that it ceded to the executive branch during the Bush years, he replied predictably, ‘We need a Democrat in the White House.’”
For further reasons to doubt that the Imperial Presidency is behind us, check here and here.
Filed under: Cato Publications; Government and Politics; Law and Civil Liberties
Say It Ain’t So, NCC!
Apparently, former President Bill Clinton has been chosen as the next chairman of the National Constitution Center in Philadelphia. In terms of unintentional irony, that’s right up there with “The Nixon Center for Peace and Freedom.”
In the waning days of his presidency, Clinton said of the impeachment struggle that he was, “proud of what we did there, because we saved the Constitution of the United States.” Like his successor, he seemed to see the Constitution in highly personal terms–as a document designed to protect his powers and prerogatives. When it came to others’ rights, eh, not so much.
Here are a few Cato publications you can peruse to get a sense of President Clinton’s fidelity to the Constitution: Tim Lynch’s Dereliction of Duty: The Constitutional Record of President Clinton, my paper on Clinton’s Imperial Presidency , and Roger Pilon’s edited volume The Rule of Law in the Wake of Clinton. Tim Lynch summed it up succinctly:
Although President Clinton has expressed support for an “expansive” view of the Constitution and the Bill of Rights, he has actually weakened a number of fundamental guarantees, including those of free speech and the right to trial by jury and that against double jeopardy. He has also supported retroactive taxes, gun control, and warrantless searches and seizures. The president’s legal team is constantly pushing for judicial rulings that will sanction expansions of federal power. The Clinton White House has, for example, supported the federalization of health care, crime fighting, environmental protection, and education. Clinton also claims constitutional authority to order military attacks against other countries whenever he deems it appropriate. President Clinton’s record is, in a word, deplorable. If constitutional report cards were handed out to presidents, he would receive an F.
Of course, if we were to grade on a curve, we’d have to bump Bill up a few notches compared to the man who followed him. One of “Lowi’s Laws”–maxims coined by the political scientist Theodore J. Lowi–was “the Law of Succession: Each president contributes to the upgrading of his predecessors.” And George W. Bush’s constitutional record certainly makes Bill Clinton’s look less awful by comparison. Tim and I examined the Bush constitutional record in this 2006 White Paper.
But we shouldn’t grade on a curve. And an institution like the NCC, which otherwise does fantastic work “increasing public understanding of, and appreciation for, the Constitution, its history, and its contemporary relevance,” shouldn’t have a man who repeatedly violated his oath of office as its chairman. In fact, choosing any modern president as NCC chair (Clinton succeeds George H.W. Bush as chairman) is utterly wrongheaded. The modern presidency is an office that has burst its constitutional bonds, so virtually any living ex-president has already violated the document the NCC exists to promote.
Filed under: Cato Publications; General; Law and Civil Liberties
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