My Washington Examiner column this week looks at the eternal recurrence of a media myth, “the Incredible Shrinking Presidency.” We go through a cycle of media hand-wringing about a weakened presidency virtually every time a president runs into trouble in the polls. The most recent example is the Politico‘s September 7 cover story on “The Incredible Shrinking President,” examining “a once muscular presidency’s dramatic downsizing.”  (Richard Cohen actually beat them to the punch, a year to the day before the Politico story ran, with “Obama’s Shrinking Presidency.”)

As I write in the Examiner, “it’s a peculiar office, the presidency. Apparently, it keeps shrinking, but — with an executive branch of some 2.1 million civilian employees and counting — it never gets any smaller.” I take a look at the “shrinking presidency” meme during the Bush years:

A little over 10 years ago, the Wall Street Journal ran a column by then-Washington editor Al Hunt with the same title, “The Incredible Shrinking President.”

President Bush was “on the defensive,” Hunt insisted — increasingly weak and irrelevant. Three days later, al Qaeda toppled the twin towers, and, in short order, America had embarked on a seemingly permanent war, with permanently enlarged powers for the commander in chief.

But the shrinking-CINC meme somehow refused to die. After Bush’s Republicans lost the House and Senate in the 2006 midterms, the Economist led with a story on, yes, “The Incredible Shrinking Presidency.” The magazine’s cover featured a caricature of a dwarfish Bush, his head peeking above the top of a cowboy boot.

During the Clinton administration, Arthur Schlesinger Jr., who coined the phrase “Imperial Presidency,” could be found announcing the institution’s demise—-and sounding almost despondent about it. In an August 1998 New York Times op-ed, “So Much for the Imperial Presidency,” Schlesinger complained that independent counsel Ken Starr had left the executive branch ‘‘harried and enfeebled.’’ Not too long after, the ‘‘harried and enfeebled’’ president carried out a 78-day air war over Kosovo despite Congress’s refusal to authorize it.

This silly meme is, it seems, as resilient as the modern presidency itself. But the truth is, as Yale’s Jack Balkin wrote on the eve of Obama’s inauguration, “in terms of the possibilities of power, the Presidency has never had more tools at its disposal….This trend in Presidential power building poses enormous risks for liberty whoever occupies the White House.” The presidency isn’t “shrinking”–but it should.

‘Incredible Shrinking Presidency’? I Wish! is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week celebrates 10 years without a major follow-up attack on American soil, and argues that the main reason the United States has been terror-free for a decade isn’t the unparalleled competence of the federal government’s terror warriors—it’s the fact that al Qaeda was never an “existential threat.”

I’ve written a number of columns and blogposts making the same point over the years, and yet, every time I write something that says “al Qaeda’s not so terrifying,” I feel compelled to knock wood, genuflecting to the superstition that merely saying ”we’re pretty safe” out loud will jinx us, and the moment a piece is published, the terrorists will morph into villains worthy of TV’s 24, moving from ineffectual gas-can bombs to nukes.

So far, though, it seems there wasn’t much reason to worry.

Last week, the Washington Post ran a piece entitled, “Who got 9/11 right, and who got it wrong? A pundit score card.” The Post erred badly by not including the distinguished political scientist and friend of Cato, John Mueller, who started making the case that the al Qaeda threat was overblown back when duct tape alerts were the “new normal.” I can’t think of any other prominent figure who got it right as early and as often as Mueller did.

As long as we’re giving credit for prescience, though, I’d like to toot my own horn (sure, it’s graceless, but nobody else is volunteering for the job).

As a larval pundit pecking away in obscurity through the early aughties, I suspected, before I’d ever read Mueller, that the al Qaeda threat was overblown—and I made that case wherever I could.

In September 2002, I reviewed Peter Bergen’s Holy War, Inc. for Liberty magazine:  “Osama bin Laden: Not as Scary as You Think” (.pdf ). In it, I asked whether al Qaeda was “as dangerous as federal powergrabbers have led us to believe.”

After recounting what Bergen reported about Mohamed Odeh, an al Qaeda operative involved in the 1998 bombing of the U.S. embassy in Tanzania—who botched his own escape by trying to convince Pakistani immigration officials that terrorism was “the right thing to do for Islam,”—I ventured that “a lot of these folks don’t sound all that bright.” (Since then, I’ve become even more convinced that these guys were never the sharpest scimitars in the shed.)

In December 2002, when my now-defunct blog was young and DC was waiting for the other shoe to drop after 9/11, I wondered “What if There Isn’t Another Shoe?”: “If the American Jihad/mullahs under the bed/the-country-is-riddled-with-sleeper-cells theory is correct, then why so quiet?” I suggested: “maybe there aren’t that many of them,” which turned out to be true. (Here’s a reference, and you can find the original if you go here and scroll down.)

Ten years later, it’s heartening to know that what was once a fringe position—and a marker of being “unserious” about terrorism—is fast becoming the conventional wisdom.

Al Qaeda: Never an ‘Existential Threat’ is a post from Cato @ Liberty - Cato Institute Blog

In a Washington Examiner column Tuesday, reviewing Texas governor and 2012 GOP presidential candidate Rick Perry’s book, I wrote:

It’s clear from Fed Up! that the guy with a degree in animal science from Texas A&M understands the Constitution better than Barack Obama, former president of the Harvard Law Review.

I said that because Fed Up! is pretty radical for a campaign tract. At times it reads like a call to restore what legal analyst Jeffrey Rosen—borrowing from Judge Douglas Ginsburg’s 1995 Cato article—has dubbed “the Constitution in Exile”—which is to say, the original Constitution, whose doctrine of enumerated powers, Fed Up! notes, effectively vanished after the New Deal.

Alas, there isn’t a lot of room for nuance in a 600-word column; it might have been more accurate to say that Chip Roy, former senior adviser to Sen John Cornyn (R-TX), understands the Constitution a lot better than Barack Obama does.

Roy’s apparently the guy who did most of the heavy lifting on the book. Perry singles him out in the acknowledgments for “special recognition”—Fed Up! “wouldn’t have been possible without Chip’s dedication over the course of several months.” Chip, Perry writes, “you have a brilliant legal mind, and after working with you on this project I will never again attempt one like this without you by my side.”

As these things go, Perry was relatively gracious and hardly tried to hide the fact that he’d had major help. Which is fine. I don’t know whether or not it’s fair to call Mr. Roy the “ghostwriter,” but being a governor is a busy job, and nobody really expects elected officials to write their own books these days.

Even so, when he’s called upon to explain the ideas in a book that he put his name on, Gov. Perry doesn’t exactly impress.

Here’s the transcript from a Newsweek interview the governor did last fall, when Fed Up! came out, and its arguments should have been fresh in his memory.

Newsweek: Let’s talk about some Constitutional issues, which take up a large part of your book. In the book, you argue against the 17th Amendment, which allowed the people to elect their senators directly instead of letting their state legislatures do it for them. This has become a big Tea Party talking point, but I’m not sure I understand the logic behind it. … wouldn’t we be less free, and the country less democratic, if we didn’t have a say in who was representing us in Washington?

Perry: Stand by just a second. [30 seconds of silence.] OK, I’m back with you. I apologize. I’m sorry, I got distracted when you were talking. I think the issue is about consolidating the power in Washington, D.C. The 17th Amendment is one of those where they were making… the states were historically more in control when they decided who those senators were going to be. They took the states out of the process at that particular point in time. So that’s the… uh… the historic concept of checks and balances, when you had the concept of the federal government and the states. The 17th Amendment is when the states started getting out of balance with the federal government, is my belief.

Newsweek: Progressives would say that “general welfare” includes things like Social Security or Medicare—that it gives the government the flexibility to tackle more than just the basic responsibilities laid out explicitly in our founding document. What does “general welfare” mean to you?

Perry: I don’t think our founding fathers when they were putting the term “general welfare” in there were thinking about a federally operated program of pensions nor a federally operated program of health care. What they clearly said was that those were issues that the states need to address. Not the federal government. I stand very clear on that. From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.

Newsweek: So in your view those things fall outside of general welfare. But what falls inside of it? What did the Founders mean by “general welfare”?

Perry: I don’t know if I’m going to sit here and parse down to what the Founding Fathers thought general welfare meant.

Newsweek: But you just said what you thought they didn’t mean by general welfare. So isn’t it fair to ask what they did mean? It’s in the Constitution.

Perry: [Silence.]

Newsweek: OK. Moving on…

What to make of that “[30 seconds of silence]“? Was the governor looking for a “lifeline”? If so, maybe he should bring Chip Roy back to Austin and keep him close at hand.

I know what you’re going to say, and I get it: wonky people tend to overestimate the value of wonkishness–and wonks make some of the worst presidents.

And you’re right, there’s no reason to expect a president to be able to explain the Constitution as well as his solicitor general.

Even so, Perry’s the guy who signed his name to a book full of admirably radical–and, to my mind, correct–constitutional ideas. Is it asking too much to expect him to study up enough to be capable of convincingly bluffing his way through a discussion of those ideas?

As I suggested a couple of days ago, it’s hard to tell whether Fed Up! reflects Perry’s deeply held beliefs or primary-season cultural signaling that means about as much as Barack Obama’s 2007 boilerplate about civil liberties.

But if you’re a small-government type inclined to cheer Perry’s rise to the front of the GOP field, I’d give serious thought to the latter possibility.

Rick Perry, Serious Constitutionalist? is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week is on Rick Perry’s 2010 book Fed Up! Stylistically, if Conscience of a Conservative is Merle Haggard, Perry’s manifesto is Lee Greenwood. Still, like Goldwater’s book, it contains some fairly radical ideas, coming from a top-tier candidate. As Ezra Klein puts it, the book’s big idea is that “most everything the federal government does is unconstitutional.”

And, indeed, most of what it does is unconstitutional — no surprise to those familiar with Cato’s constitutional work. Still, it’s surprising to hear a major national candidate indict the New Deal, call Social Security “a Ponzi scheme,” and identify — correctly, I think — the combination of the 16th and 17th amendments as a death blow to robust federalism.

Interestingly, Perry all but promises that as president, he wouldn’t prosecute medical marijuana violations in states where it’s been legalized (which would be an improvement on Obama’s record).

“If you don’t like medicinal marijuana and gay marriage, don’t move to California,” Perry writes. He complains that the Raich case made clear that “the federal government has the full prerogative to intervene in your private home if you are engaged in any activity that has some minimal relationship to the exchange of goods.” He calls the medical marijuana movement “a movement I disagree with, while appreciating the desire of Californians to decide for themselves.”

Would he stick to that? I’d bet not — it took him all of a couple of days to perform a Romney-style double-axel backflip on gay marriage. As I note in my column, his campaign is already backing off of what the Governor wrote about Social Security.

What Perry says about federalism and enumerated powers sounds sincere. Of course, Obama made all the right noises about civil liberties before he was elected. Is this sort of thing just cultural signaling to constituent groups?

In any event, it’d be a better world if promises of constitutional fidelity were taken even half as seriously by the candidates as are no-new-taxes pledges.

Fed Up with Phony Federalism is a post from Cato @ Liberty - Cato Institute Blog

Former Catoite Chris Moody has a fun piece up on the Yahoo News site: “If elected president, Rick Perry could still jog with his gun.”

If you haven’t heard the famous anecdote about Perry shooting a coyote during a gubenatorial jog in Austin last year, you can read about it Chapter Two of his book Fed Up!

He praises federalism for giving the people of the several states the ability to elect leaders befitting the states’ respective characters: “in Massachusetts, they elect people like “Ted Kennedy, John Kerry, and Barney Frank repeatedly–even after actually knowing about them and what they believe!” He continues:

“Texans, on the other hand, elect folks like me. You know the type, the kind of guy who goes jogging in the morning packing a Ruger .380 with laser sights and loaded with hollow-point bullets, and shoots a coyote that is threatening his daughter’s dog.”

All right, it’s a cool story. But come on Governor: tough guys don’t preen.

I don’t have a serious legal opinion about the question explored in Moody’s piece–whether the next “decider” could decide to carry a gun, local laws notwithstanding.

But in the spirit of the goofy hypothetical, it strikes me that, despite their differing styles, Bush and Obama were both pretty good at avoiding laws they didn’t want to follow. Bush did it by telling people, openly, that the CINC could do virtually whatever he wanted in the name of national security. Obama prefers legalistic wordgames: Libya’s not a ‘war,’ it’s a ‘kinetic military action,’ and we’re not engaged in ‘hostilities’ because they can’t shoot back.

So, could Rick Perry gin up some legal cover for jogging strapped? Sure, why not? The president can pretty much always find at least one executive branch lawyer willing to ratify whatever he wants.

If Gov. Perry wanted to use the direct approach of his fellow ex-cheerleader and Texan, George W. Bush, Perry might insist he’s the commander-in-chief, and he has adequate national security reasons for being armed. If he went the Obama route, maybe he’d just insist he was following the law, and, despite all appearances, that the object he was carrying wasn’t actually a gun.

Of Arms and the Guv is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week looks at the rush to score partisan points over the horrific slaughter in Norway last Friday.

In it, I argue that blaming Al Gore for the Unabomber, Sarah Palin for Jared Loughner, or Bruce Bawer for Anders Breivik makes about as much sense as blaming Martin Scorcese and Jodie Foster for the actions of John Hinckley. In general, “invoking the ideological meanderings of psychopaths is a stalking horse for narrowing permissible dissent.”

And right on cue, here’s today’s New York Times editorial on Breivik, decrying “inflammatory political rhetoric” about Muslim immigration in Europe:

Individuals are responsible for their actions. But they are influenced by public debate and the extent to which that debate makes ideas acceptable — or not. Even mainstream politicians in Europe, including Prime Minister David Cameron of Britain, Chancellor Angela Merkel of Germany and President Nicolas Sarkozy of France have sown doubts about the ability or willingness of Europe to absorb newcomers. Multiculturalism “has failed, utterly failed,” Mrs. Merkel said last October.

Oh, Grey Lady: you had me at “individuals are responsible for their actions,” but you lost me after “but.”

Because, maybe there are, in fact, limits to the ability or willingness of Europe to absorb newcomers. And perhaps multiculturalism has failed. I don’t know—I don’t live in Europe, and I don’t follow its immigration debates closely. But contra the Times‘ editorialists, it seems to me that these ideas are “acceptable,” in the sense that they might actually be true, and that you ought to be able to debate them without thereby becoming morally responsible for the actions of lone psychotics.

Virtually every European immigration skeptic manages to participate in that debate without resort to violence, just as vanishingly few hard-core environmentalists try to promote their ideas by means of armed assault. The actions of the deranged few don’t tell us much about what’s wrong with those political stances.

As others have pointed out, the notion that you should “watch what you say” in political debates amounts to giving a sort of “heckler’s veto” to the biggest nutjobs within earshot.

As a means of avoiding horrifying—but thankfully rare—events like mass shooting sprees, it doesn’t seem terribly promising. But it might help you temporarily intimidate your ideological opponents—which is why it’s a perennially popular tactic.

The New York Times on Anders Breivik is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week is on the final flight of the Space Shuttle, and what looks to be the withering away of the manned space program. In 2004, President Bush announced plans for a moonbase and an eventual Mars mission. But last year President Obama effectively cancelled the moonbase, and has exhibited little desire to liberate Mars. That’s good news, I argue:

“We are retiring the shuttle in favor of nothing,” Michael Griffin, Bush’s NASA administrator, wailed to the Washington Post recently.

Here, as usual, “nothing” gets a bad rap. I’ll be “in favor of nothing” until the advocates of federally funded spaceflight can come up with an argument for it that doesn’t make me spray coffee out my nose.

NASA’s Griffin failed that test in 2005, when he gave an interview to the Washington Post insisting it was essential that “Western values” accompany those who eventually “colonize the solar system,” because “we know the kind of society we would get if you, for example, carry Soviet values. That means you want a gulag on Mars. Is that what you’re looking for?”

Well … is it, punk?

When you strip away the few half-hearted “practical” arguments space partisans offer (it turns out that the space program didn’t even give us TANG, by the way) you’re mostly left with sentimental piffle. Listening to some of them, I’m half-tempted to mount a First Amendment challenge to the space program as an unconstitutional establishment of religion.

A 2008 report from MIT on “The Future of Human Spaceflight” argued that federal funding was justified as a means to promote “an expansion of human experience, bringing people into new places, situations and environments, expanding and redefining what it means to be human.” Those are *scientists* making that argument. But if your best explanation for why spaceflight is a public good gets into “sweet mystery of life” territory, then maybe you don’t have a very good argument for public funding.

Unfortunately, President Obama didn’t actually kill funding for human spaceflight. We’re now embarked on a public-private partnership, with NASA dollars flowing to companies like Space X. In fact, Obama has publicly pledged to seek slight increases in NASA’s budget.

But whether it’s done via a “government-business partnership” or not, there’s no reason we should be funding manned space exploration at all.

This is another thing President Eisenhower got right, incidentally:

he “would not be willing,” he said, “to spend tax money to send a man around the moon . . . There is such a thing as common sense,” he said, “even in research.” A moon project would be just “a stunt.”

But, since federally funded human spaceflight is a massive, “heroic,” allegedly inspiring but ultimately senseless government crusade, it’s no surprise, I guess, that neoconservatives love it. And nobody loves it more than Charles Krauthammer. Here he is in 2007, waxing rhapsodic about “the music of the spheres.”:

You should feel something when our little species succeeds in establishing new life in a void that for all eternity had been the province of the gods. If you don’t feel that, you are—don’t take this personally—deaf to the music of our time.

Look up, Krauthammer urged spacefans in 2009, after it had become clear that Barack Obama lacked “Kennedy’s enthusiasm” to boldly go, etc. “That is the moon,” Krauthammer declared, and “for the first time in history,” it had become “a nightly rebuke.” This is the burden of the Interplanetary Greatness Conservative: the moon—the very moon!—mocks you.

Personally, I’m deaf to “the music of the spheres.” But I’m all for the efforts of private entrepreneurs who can hear it. If people want to advance space exploration on their own dime and at their own risk, more power to them. And the government should neither help nor hinder them.

Interplanetary Greatness Conservatism is a post from Cato @ Liberty - Cato Institute Blog

My column at the Washington Examiner (and Reason.com) this week uses the collapse of the Dominique Strauss-Kahn case to argue against the “perp walk,” which has become a form of pretrial punishment and a way for spotlight-hungry prosecutors to grab attention—whether the ‘perp’ turns out to be guilty or not:

Back in May, when New York law enforcement paraded DSK before the cameras, hands cuffed behind his back, the French were outraged. “Incredibly brutal, violent and cruel,” France’s former justice minister gasped.

Irritating as it might be to admit it, the French have a point. The “perp walk”—in which suspects are ritually displayed to the media, trussed up like a hunter’s kill—has become common practice among prosecutors. But it’s a practice any country devoted to the rule of law should reject.

Of course, DSK isn’t the most sympathetic victim of the perp walk ever, nor, given paramilitary policing and “no knock” raids, is the perp walk the most abusive police/prosecutorial practice out there. But it’s at best a pointless indignity, and at worst a threat to due process—which is why it should be reined in. For Cato work on police tactics and misconduct, go here; and also see Reason’s recent “criminal justice” issue.

DSK and the Pernicious ‘Perp Walk’ is a post from Cato @ Liberty - Cato Institute Blog

…that’s what former Cato policy analyst, Reason senior editor and now Huffington Post reporter Radley Balko reports:

I’m in Monticello, Mississippi, this morning, where Circuit Court Judge Prentiss Harrell has just signed a plea agreement between Cory Maye and the state. Maye has plead guilty to a reduced charged of manslaughter, and has been resentenced to 10 years in prison, time he has already served. He’ll be sent to Rankin County for processing. He should be released and home with his family in a matter of days.

Cory Maye’s is a story about a paramilitary-style drug raid gone grotesquely wrong, a cautionary tale about the human costs of the War on Drugs, and a lesson in how a dedicated investigative reporter can throw a wrench in the ever-grinding wheels of injustice. If you’re unfamiliar with the case, and Radley’s role in it, watch the terrific Reason.tv video, “Mississippi Drug War Blues” below, and read this blogpost I wrote a couple of years ago, when Radley’s work first started drawing attention to the case: “The Cato Policy Analyst Who (May Have) Saved a Man’s Life.” We can remove the “may have” now.

And here’s Radley’s update at the Huffington Post.

“Cory Maye Will Soon Be Free” is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week is on TSA, the federal agency that’s its own reductio ad absurdum.

In the latest TSA atrocity, the agency forced a wheelchair-bound, 95-year-old leukemia patient to remove her adult diaper, for fear she might be wired to explode. “It’s something I couldn’t imagine happening on American soil,” her distraught daughter told the press: “Here is my mother, 95 years old, 105 pounds, barely able to stand, and then this.”

My God, what is she on about? Proper procedure was followed!

As I point out in the column:

in a classic case of “mission creep,” TSA is taking its show on the road and the rails.

Remember when, pushing his bullet-train boondoggle in the 2011 State of the Union, President Obama cracked that it would let you travel “without the pat-down”? Not funny—also, not true.

Earlier this year, Amtrak passengers in Savannah, Ga., stepped off into a TSA checkpoint. Though the travelers had already disembarked the train, agents made women lift their shirts to check for bra explosives. Two weeks ago, armed TSA and Homeland Security agents hit a bus depot in Des Moines, Iowa, to question passengers and demand their papers.

These raids are the work of TSA’s “Visible Intermodal Prevention and Response” (VIPR or “Viper”) teams—an acronym at once senseless and menacing, much like the agency itself.

All this is happening at a time when al Qaeda looks more harried, pathetic, and weaker than ever. But hey, you can never be too careful, right?

Feel Safer?

Beware the Depends Bomber? is a post from Cato @ Liberty - Cato Institute Blog

So for three months now, we’ve been at war in a country that the president’s own secretary of defense admits is “not a vital interest for the United States.” Turns out, it’s also a war that the president’s own attorney general believes to be illegal.

That’s what I get from Charlie Savage’s recent reporting on how the White House “forum-shopped” its way to its current position on the War Powers Resolution, to wit, you’re not engaged in “hostilities” if you’re hitting someone but they can’t hit you back.

As the WPR’s 60-day deadline approached, the Pentagon’s general counsel and, more importantly, the head of the president’s Office of Legal Counsel, Caroline D. Krass, advised Obama that bombing Tripoli—even if done remotely, with little risk of immediate retaliation—counted as engaging in “hostilities” under the WPR, which meant that the president would have to terminate U.S. involvement or radically scale it back after the 60-day limit. As Savage reports, “Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said”—in other words, that if the president continued bombing Libya, he’d be violating the WPR.

Ordinarily OLC’s opinion would have the greatest weight here, but President Obama went with the advice given by White House Counsel Robert Bauer and State Department Legal adviser Harold Koh—who told him what he wanted to hear.

My Washington Examiner column today focuses on Harold Koh as an object lesson in the corrupting potential of power:

Harvard’s Jack Goldsmith notes that “for a quarter century before heading up State-Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war.” On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.

And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:

“Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization.”

Who could have predicted that his legacy at State would be reading the WPR practically out of existence?

On Thursday, Koh took point at a press conference selling the administration line. The next day, he went before the American Constitution Society, the progressive alternative to the Federalist Society, to give a strikingly self-congratulatory speech about maintaining one’s integrity in “public service.” The relevant part starts at around 33:00 in. Highlights: “I’ve lived the life I wanted to live; I’ve said the things I wanted to say”…”I still believe in my principles”…”I never say anything I don’t believe”…”if you hear me say something, you can be absolutely sure that I believe it [including "the administration’s position on war powers in Libya"]“…”if I say it, I believe it, and I intend to stand by it”…”For what is a man?/what has he got? If not himself/then he has not…” (OK, not the last bit).

As I note in the column:

John Dean, who served prison time for his role in the Watergate cover-up as a young White House counsel to Richard Nixon, once said that young people should be kept away from top executive posts.

They lacked the life experience and independence needed to resist falling under the spell of presidents who want them to bend or break the law.

Koh was in his mid-50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being “in the room” when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.

Oh, and by the way, Charlie Savage reports today that piloted strikes continued past the 60-day time limit, so even if Koh’s legal rationalization could pass the laugh test, it wouldn’t fit the facts we have.

Harold Koh and the Temptations of Power is a post from Cato @ Liberty - Cato Institute Blog

As David Boaz notes below, a few blocks away at 17th and M, the foreign policy and defense analysts at the American Enterprise Institute have discovered a threat that’s even more disturbing than the possibility of a Chinese “Space Force” armed with particle-beam weapons [.pdf].  It seems there’s a spectre haunting America–the spectre of “isolationism.”

It’s such a threat that AEI, one of our leading conservative think tanks, is calling on President Obama to man the bully pulpit and use his magic rhetorical skills to raise awareness. I did a double-take on Tuesday when I saw a post at AEI’s blog titled, “With Growing Isolationism, We Need Obama to Lead Now More Than Ever.” And yet, when I got up the next day, I heard AEI veep Danielle Pletka on NPR, lamenting “Republican isolationism” and the fact that Obama hadn’t yet stepped up to “explain to the American people” the “tough, important decisions” he’d made in foreign policy.

What’s the evidence for this supposedly burgeoning “isolationism” in the Republican party and the country at large? AEI’s Alex Della Rocchetta cites a recent poll showing that only 26 percent of likely voters support Obama’s Libyan adventure and the Pew Center survey David links to below, that has a rising number of Americans agreeing with the statement that the US should “mind its own business internationally.”

But is it “isolationism” to doubt the wisdom of bombing Libya, a country that the president’s own secretary of defense admits isn’t “a vital interest of the United States” or to think minding your own business abroad is better than minding other peoples’ business?  As my colleague Justin Logan has pointed out, “isolationism” has always been a smear word designed to shut off debate. Tim Carney’s sardonic definition has it right: “Isolationist: n. Someone who, on occasion, opposes bombing foreigners.”

But, rhetorical games aside, AEI’s hawks have reason to worry that interventionism is increasingly unpopular. It had to hurt when even sometime AEI scholar Newt Gingrich–a guy so threat-addled that he once called for zapping a North Korean missile test with lasers–struck a note of restraint at the last GOP debate. As the New York Times noted, that debate showed that “the hawkish consensus on national security that has dominated Republican foreign policy for the last decade is giving way to a more nuanced view.”

Maybe GOP pols are beginning to catch on that, for quite some time now, ordinary Americans have overwhelmingly rejected the globocop role forced on them by liberal and conservative elites. Indeed, there’s a huge disconnect between the foreign policies Americans favor and those the Beltway Consensus delivers. Nearly three-quarters of the American public wants to get out of Afghanistan yesterday; meanwhile, 57 percent of National Journal’s “National Security Insiders” think we need to waste more blood and treasure on armed “community organizing.”

It’s almost like there’s a “culture war” going on, but not one of the usual God, Guns, and Gays variety. On one side, you’ve got the sound, mind-your-business instincts of the American people; on the other, there’s a gaggle of intellectual elites, determined to extend the reach and power of the American state. A “Battle,” if you will. You could write a book about it.

AEI on the Spectre of ‘Isolationism’ is a post from Cato @ Liberty - Cato Institute Blog

Pardon the somewhat trite Orwell reference in the title to this post. But sometimes this administration’s wordgames make it hard to resist invoking our keenest analyst of politics and the English language.

Some months ago, the Obama team began telling us that the Libyan War wasn’t a war—it was a “kinetic military action.” (Go here to watch Defense Secretary Robert Gates try—and fail—to maintain a straight face selling that line to Katie Couric on 60 Minutes).

In April, the president’s Office of Legal Counsel made the (bogus) argument that the president hadn’t violated the War Powers Resolution because the WPR recognized his authority to engage in hostilities for at least 60 days without congressional approval.  We’re now coming up on 90.

Yesterday, in response to Speaker John Boehner’s (R-OH) request, the president issued a new explanation for why he isn’t in violation of the WPR, which requires the president to terminate US engagement in “hostilities” after 60 days in the absence of congressional authorization. And it turns out that, per Obama, not only is the Libyan War not a “war,” what we’re doing in Libya—supporting, coordinating, and carrying out attacks—doesn’t even rise to the level of “hostilities.”

The president’s report states that he hasn’t violated the WPR, because “U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision”:  they don’t “involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof.”

As Jack Goldsmith explains, “The Administration argues that once it starts firing missiles from drones it is no longer in ‘hostilities’ because U.S. troops suffer no danger of return fire.”  ”The implications here,” Goldsmith notes, “in a world of increasingly remote weapons, are large.”

I’ll say: this is an extraordinary argument: The president can rain down destruction via cruise missiles and robot death kites anywhere in the world. But unless an American airman might get hurt, we’re not engaged in “hostilities.”

Put aside the strange argument that acts of war don’t rise to the level of “hostilities.” Given that outrage over the illegal bombing of Cambodia was part of the backdrop to the WPR’s passage, it would have been pretty strange if the Resolution’s drafters thought presidential warmaking was A-OK, so long as you did it from a great height.

As legal arguments go, this is the national security law equivalent of the Clinton perjury defense. It’s the type of thing that gives lawyers an even worse name. Or maybe law professors, because, speaking of Bill Clinton, Obama’s the second former constitutional law professor in a row to violate the War Powers Resolution.

And yet, Obama continues to insist he’s in full compliance with the WPR, and he has no objection to the resolution on constitutional grounds.

God help me, I think I just felt a twinge of nostalgia for John Yoo.  Say what you will about the legal architect of Bush’s “Terror Presidency,” at least he had the courage of his bizarre convictions. When the statutes couldn’t be tortured into complete submission, Yoo would make the case that—whatever the law said—the president had the constitutional power to do as he pleased.  That’s clearly what Obama believes as well, but you’re not going to catch him admitting it.

White House: ‘We Have Never Been at War in Northafrica!’ is a post from Cato @ Liberty - Cato Institute Blog

I guess I should blush to admit that my Washington Examiner column this week focuses on “Weinergate.”  But who among us can resist snickering at a scandal this hilarious—who so sober and serious that they could ignore the crotch pic that launched a thousand puns?

As I argue in the column, among all the horselaughs to be had, there are also lessons to be learned:

There’s nothing wrong with enjoying a good old-fashioned political sex scandal. They’re entertaining, and they may even be edifying — reminding us that self-styled “public servants” are often less responsible, more venal, and just plain dumber than those they seek to rule.

Some writers with whom I’m normally simpatico disagree. Doug Mataconis of Outside the Beltway deplores “the odd American obsession with political sex scandals.” The Atlantic‘s Conor Friedersdorf also condemns the attention given the Weiner kerfuffle:

there is a significant cost to obsessing over these things. The opportunity cost, for the media, is covering lots of other matters that are actually of greater import to the public, whatever one thinks of sex scandals.

I just don’t see it. Sure, in a better world, the news cycle might consist of a dignified 24/7 seminar on debt limits, insurance exchanges, the War Powers Resolution, and the like. But here on earth, Weinergate’s mainly crowding out more coverage of Sarah Palin’s bus tour.

“And for the politician in question,” Friedersdorf continues, “scandal consumes all the time he’d otherwise be dedicating to his official duties.”

I confess, I have a hard time not seeing this as win-win.

Both Mataconis and Friedersdorf argue that “private” sexual behavior tells us little about how politicians do their jobs. And I see their point, to a point. I sometimes joke, lamely, that one of my favorite presidents was a draft-dodging, womanizing Democrat elected in ’92 (wait for it)… Grover Cleveland.

But whether or not we should care about congressional “sexting”—in the context of the modern media Panopticon, isn’t someone, like Weiner, who engages in it (especially after GOP Rep. Christopher Lee’s downfall) at least a reckless idiot? And isn’t that relevant to his job?

In a recent hand-wringing editorial, the New York Times fretted about disgraced former Senator and VP candidate John Edwards.

What the Times found unfortunate wasn’t the runaway prosecution–a legitimate complaint–but the fact that it would draw attention to yet another giant political phony. It’s “the last thing the nation needs: another cautionary tale of hubris,” says the Grey Lady, 
”the woeful courtroom coda to [Edwards'] once flourishing political career can only invite a further slide toward wariness and cynicism for American voters.”

Oh no! Not more “wariness and cynicism”! Surely, that’s the “last thing the nation needs” in an era of promiscuous warmaking and reckless spending!

There’s a story (perhaps apocryphal) where F. Scott Fitzgerald says to Ernest Hemingway, “the rich are different from you and me,” and Hemingway supposedly replies, “yes, they have more money.” I don’t know about the rich, but the political class is, by and large, different from the rest of us–and not just because they have more power.

By reminding us of how untrustworthy and reckless these people can be–how little control they often exhibit in their own lives–political sex scandals may even serve an important social purpose: they remind us that we should think twice before granting them more control over ours.

“Weinergate”: It’s Entertaining–and Edifying! is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column today closes out a three-part series this week on “Obama’s Imperial Presidency” (also running at Reason.com). Tuesday’s column covered Obama’s expansion of executive power abroad, and Wednesday’s looked at the ways in which Obama has turned the Imperial Presidency inward against the private sector.

Today’s column begins with a recap of the powers 44 holds:

Abroad, Obama claims the power to start wars at will; scoop up your email and phone records without answering to a judge; assassinate you via drone strike far from any battlefield, and — should your relatives complain — keep the whole thing secret in the name of national security.

At home, Obama has summarily fired the CEO of General Motors, America’s largest automaker; flouted bankruptcy law to shaft Chrysler’s creditors and pay off his union allies; pressured half-nationalized car companies to produce pokey little electric cars, had his National Labor Relations Board assert veto power over a private company’s decision to move a factory to a “right to work” state; and, via imperial edict, began restructuring the industrial economy by imposing restrictions on carbon dioxide emissions despite Congress’ refusal to pass cap-and-trade legislation.

Left or Right, Red or Blue, no American should be comfortable with any one man wielding that much power. Yet too many Americans embrace a philosophy of “situational constitutionalism”: they only get disturbed about the menacing concentration of power in the executive branch when they don’t care for the guy who has the scepter and the crown:

Conservatives who defended every excess of the Bush administration now rail against Obama’s Imperial Presidency, and liberals who considered the Bush era one long descent into the dark night of fascism seem blithely indifferent to the present Oval Office occupant’s multiplying executive power grabs.

Apparently, phrases like “he killed his own people” only grate when pronounced in a clipped, West Texas accent — otherwise, “wars of choice” against third-rate dictators go down smoothly.

But “situational constitutionalism” is the constitutionalism of fools: there’s something absurd–or at least insincere–about people who decide to worry about the Imperial Presidency only every four to eight years, and only when the “other team” holds the office.

Blame power-hungry presidents and feckless Congresses all you want.  We’ll never solve the problem of the Imperial Presidency until more Americans manage to pry their eyes away from the Red-Team/Blue Team sideshow and recognize that who holds the office is less important than the powers the office holds.

“But He’s Our Imperial President” is a post from Cato @ Liberty - Cato Institute Blog

My DC Examiner column this week focuses on Barack Obama’s transformation into our National Noodge, nudging, shoving, poking and prodding Americans into healthier lifestyles via the powers of the federal government.

A year ago, the New York Times got all excited about the “new age of regulation” the administration was busy ushering in. The president had elevated “a new breed of regulators”: folks like regulatory czar Cass Sunstein, who wants to “nudge” Americans toward healthier consumption choices, and CDC head Thomas Frieden, who, as NYC health commissioner, proclaimed ”when anyone dies at an early age from a preventable cause in New York City, it’s my fault.”

Today’s column tracks how this killjoy crusade is playing out:

Quitting smoking was “a personal challenge for [Obama],” the first lady explained recently, and she never “poked and prodded.”

Of course not. It’s obnoxious to hector your loved ones. “Poking and prodding” is what good government does to perfect strangers. And that’s what the Obama administration has been doing, with unusual zeal, for the past 2 1/2 years.

You’re not a real president until you fight a metaphorical “war” on a social problem. So, to LBJ’s “War on Poverty” and Reagan’s “War on Drugs,” add Obama’s “War on Fun.” Like the “War on Terror,” it’s being fought on many fronts…

Among them: graphic warning labels for cigarettes; a ban on clove cigarettes and possibly menthols; shutting down online poker sites; banning caffeinated malt liquor; mandatory menu-labeling and ratcheting down allowable sodium levels in food to “adjust the American palate to a less salty diet.” Even healthy “real food” aficionados can find themselves in the crosshairs, as Dan Allgyer, an Amish farmer selling raw milk discovered last month, when FDA agents and federal marshals raided his farm.

Last year, in a remarkably silly column entitled “Obama’s Happiness Deficit,” Washington Post editorial page editor Fred Hiatt wondered whether the president’s political difficulties stemmed from the fact that “he doesn’t seem all that happy being president.” I couldn’t care less whether Obama’s enjoying his job. He asked for it, he got it. But if he isn’t having fun, he shouldn’t take it out on the rest of us.

President Obama’s ‘War on Fun’ is a post from Cato @ Liberty - Cato Institute Blog

Over at the American Conservative, I have a review of Eric Posner and Adrian Vermuele’s new book Executive Unbound: After the Madisonian Republic. Funny enough, the working title for my book on presidential power was “Executive Unbound,” but P&V have a very different take on the dangers of concentrating power in the executive (they coin the term “tyrannophobia,” for irrational fear of executive abuse).

From the review’s intro:

The New York Times book editors assigned their review to the Straussian political philosopher Harvey Mansfield, the self-styled expert on “manliness” who’s as rabid a supporter of the imperial presidency as you’re likely to find. In the late Bush era, Mansfield wrote a 3,000-word Wall Street Journal op-ed, “The Case for the Strong Executive,” arguing that defects in the rule of law ‘‘suggest the need for one-man rule.”

Yet even Mansfield blanched at Executive Unbound’s case for unbridled presidential power. He began his review by noting indignantly, “Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard, respectively, offer with somewhat alarming confidence the ‘Weimar and Nazi jurist’ Carl Schmitt as their candidate to succeed James Madison for the honor of theorist of the Constitution.”

Gott im Himmel! A book that embraces a leading “Nazi jurist,” applauds the American presidency’s liberation from law, and is apparently hardcore enough to scare manly Harvey Mansfield? What sort of work is Executive Unbound? A Satanic Bible for worshippers of the strong presidency? The black-metal version of John Yoo?

As I dug into the book—while Tomahawk missiles rained down on Libya in yet another unauthorized presidential war—that’s what I was expecting. But Posner and Vermuele have produced something very different and, quite to my surprise, I liked it.

You can read the rest here.

Law Professors against “Tyrannophobia” is a post from Cato @ Liberty - Cato Institute Blog

Back in 2002-03, when France opposed going to war in Iraq, conservatives spared no venom for the country some called “Our Oldest Enemy.” In retrospect, though, France was a better friend to us then than she’s been in our ongoing Libyan debacle.

As the bombing began last month, the LA Times ran a piece showing that French bellicosity (yes) had been instrumental in dragging the US to war:

Earlier in the week, French papers reported that when Sarkozy asked [Secretary of State] Clinton to come out more forcefully in favor of action in Libya, she replied, “There are difficulties” and refused to be drawn out further.

“Frankly, we are completely puzzled,” a French diplomat told one of his European counterparts. “We are wondering if Libya is a priority for the United States.”

It shouldn’t be. Apparently it is now. And that, I argue in my Washington Examiner column this week, shows the dangers of NATO, a 60-year-old entangling alliance that long ago outlived its usefulness.

Much of the piece focuses on Bernard Henri-Levy, the French celebrity-philosopher who played a key role in stoking Sarko’s dreams of military glory:

Credit or blame goes to French celebrity-philosopher Bernard Henri-Levy, who, “in the space of roughly two weeks,” the New York Times reports, got “a fledgling Libyan opposition group a hearing from the president of France and the American secretary of state, a process that led both countries and NATO into waging war.”

Who is Bernard Henri-Levy (BHL)? He’s heir to an industrial fortune, and a crusading socialist who favors open-collared shirts, stylishly long locks and “humanitarian” wars. One critic summed up BHL’s persona tartly: “God is dead, but my hair is perfect.”

Henri-Levy’s 2006 book, “American Vertigo: Traveling America in the Footsteps of Tocqueville,” was so condescending about America’s “derangements,” “dysfunctions” and “hyperobesity,” it roused NPR’s Garrison Keillor to a fit of patriotic ire. The normally placid “Prairie Home Companion” host called BHL “a French writer with a spatter-paint prose style and the grandiosity of a college sophomore.”

And yet, BHL – clever boy – helped entangle this fat, silly country in a conflict that Secretary of Defense Robert Gates admits “isn’t a vital interest for the U.S.”

But if a picture’s worth a thousand words, then this one surely trumps the 600 in my column:

THAT'S the guy who helped sucker us into war!? ARRRRGH!

Pass the Freedom Fries! is a post from Cato @ Liberty - Cato Institute Blog

So it turns out that, per CBO’s numbers, the “epic” budget showdown didn’t even produce enough cuts to pay for a week of bombing Libya.

On that subject, as I noted last week, the Obama administration’s Office of Legal Counsel recently released its memo arguing that our Libyan adventure is constitutional. And that memo is one sorry piece of work.

Over at the Washington Examiner’s “Beltway Confidential” blog, I’ve been commenting on various aspects of the OLC memo, and I thought I’d link to some of that discussion here.

Recently, I addressed two of the OLC’s arguments: (1) that what we’re doing in Libya isn’t “war”; and (2) that the 1973 War Powers Resolution gives the president a 60-to-90-day “free pass” to wage war without congressional authorization. Neither argument comes close to showing that the president’s actions in Libya are legal.

Make no mistake, what we’re doing in Libya amounts to war. Defense Secretary Gates admitted as much recently, albeit reluctantly:

It’s fairly common to hear supporters of unrestrained presidential war power argue that whatever “war” is, it’s far too ambiguous a concept for us to insist that the president be restrained by constitutional niceties like prior congressional approval.

But this is a silly argument.

Yes, there are line-drawing problems with the “Declare War” Clause, as there are with every other clause in the Constitution. That doesn’t mean there are no lines — the color gray isn’t a refutation of the categories “black” and “white.”

And the Libyan intervention is pretty black and white. This is a nondefensive, unprovoked use of force, ordered by our president to, as he put it, prevent a massacre that would have “stained the conscience of the world.” (By the way, there’s good reason to doubt that was the case, Professor Alan Kuperman argues.)

The OLC’s argument that the War Powers Resolution empowers the president to launch “limited” wars fares no better. Put briefly, (1) the WPR makes clear that the president’s constitutional powers are limited to defensive uses of force; (2) the text underscores that the WPR doesn’t purport to add anything to the constitutional powers of the president; and (3) it couldn’t in any event: the Constitution trumps a statute, and, like it or not, the Constitution doesn’t allow the president to start wars.

Even so, the WPR — passed over Richard Nixon’s veto in 1973 to restore congressional control over the decision to go to war — hasn’t much inconvenienced any president since. Perversely, they actually use it as an argument for presidential war-making, which is why it may have done more harm than good, overall [.pdf].

As Charlie Savage pointed out recently in the New York Times, the 60-day clock runs out in mid-May. We’re still bombing Libya now, and President Obama recently approved the use of armed Predator drones there. If this keeps up for another month, then Obama will become the second Democratic president in a row to wage war beyond the WPR’s 60-day limit.

More on Libya and Constitutional War Powers is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week covers two developments last week that may make you somewhat less likely to “Give Thanks for the TSA” as former Bush speechwriter Marc Thiessen urged on National Review’s website.

The first is the viral video of a TSA agent at New Orleans airport giving the “freedom fondle” to a six-year-old girl. The second is Friday’s revelation that among the “behavioral indicators” TSA uses to scope out travelers who deserve extra manhandling is the “arrogant” expression of “contempt against airport passenger procedures.”

Because, clearly, making a scene on an airport security line is sound strategy for anyone trying to sneak a bomb onto a plane.

Is it possible that anyone with an IQ above room temperature buys that logic?
A lot of Al Qaeda terrorists are pretty dumb. But it seems doubtful that they’re that dumb.

The column looks at what our willingness to submit to this sort of thing says about “American Exceptionalism”:

There’s been a lot of talk lately about “American Exceptionalism,” and whether President Obama understands what makes America stand out among the family of nations.

I’ve always thought that what makes Americans exceptional is our ornery resistance to being bossed around….

Neoconservatives see America’s uniqueness as an excuse to bomb any country that looks at us crosswise. But the original idea was somewhat less aggressive. With “every spot of the old world… overrun with oppression,” America would be freedom’s home — an “asylum for mankind” — as Thomas Paine put it in Common Sense.

In the 1992 film adaptation of “Last of the Mohicans,” James Fenimore Cooper’s novel about the Seven Years War, there’s an exchange that illustrates American Exceptionalism at its best. An effete British officer berates the rough-hewn colonial “Hawkeye”: “You call yourself a loyal subject to the Crown?”

“Don’t call myself ‘subject’ to much at all,” Hawkeye replies.

You have to wonder how long that spirit can survive in a world where official federal policy requires you to stand by placidly while agents of the state run their rubber gloves under your innocent 6-year-old daughter’s waistband. And it’s far from clear that these procedures are even making us any safer.

‘Give Thanks for the TSA’? is a post from Cato @ Liberty - Cato Institute Blog