Author Archive
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.”
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.
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.
‘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.
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.
“Ponytail Guy” and the Presidency
Ah, the town-hall debate format: that wonderful Oprah-style arrangement in which a hand-picked audience of allegedly normal Americans gets to lob questions at the candidates, who perch awkwardly on directors’ chairs, trying to look warm and approachable. What could be phonier?
Well, maybe a town-hall debate with rules like the ones in force tonight (hat tip Matt Yglesias):
–The questions will be culled from a group of 100 to 150 uncommitted likely voters in the audience and another one-third to come via the Internet. Brokaw selects which questions to ask from written queries submitted prior to the debate.
–The Gallup Organization makes sure the questioners reflect the demographic makeup of the nation.
–An audience member isn’t allowed to switch questions and will not be allowed a follow-up either. His or her microphone will be turned off after the question is read and a camera shot will only be shown of the person asking — not reacting.
–The moderator may not ask followups or make comments.
–McCain and Obama will be provided with director’s chairs, but they’re also allowed to stand. They can’t roam past their “designated area” marked on the stage and are not supposed to ask each other direct questions.
Even so, these things occasionally give rise to memorable moments. My favorite, in terms of revealing how far we’ve drifted from the Framers’ modest, limited conception of the president’s role, was the “ponytail guy” incident from a 1992 town-hall-style debate. This chopped-up YouTube clip will give you a little sense of what that was like. Read the rest of this post »
Downsizing the Veep
Maybe I’m wrong, but I think I’m the source for the only constitutional question asked in Thursday’s vice-presidential debate. Moderator Gwen Ifill asked one that sounded a lot like the one I asked that morning in the New York Times:
IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?
PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.
IFILL: Vice President Cheney’s interpretation of the vice presidency?
BIDEN: Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.
And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there’s a tie vote. The Constitution is explicit.
The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.
Biden made more of an attempt than Palin did to answer the question Ifill asked, but his answer doesn’t make much sense. Uh, Joe, Article I covers the legislative branch. And the veep’s only power is legislative, presiding over the Senate and breaking tie votes. The Constitution doesn’t grant him any executive power.
And yet here’s Dick Cheney, co-president from at least 9/11/01 on, giving orders to shoot down planes, running large swathes of the War on Terror, and even exercising formally delegated executive powers over the control of information.
As Glenn Reynolds suggests, it’s constitutionally suspect for the president to delegate executive power to officials he can’t remove from office. He also notes that
there may be practical reasons to limit vice presidential involvement in day-to-day executive business regardless of whether we accept the characterization of the Vice Presidency as a legislative office or not. Whether or not the Vice President is seen as a legislative officer, the office of Vice President is something special. The Vice President is, after all, primarily meant to serve as a sort of spare President, and—as with spare tires or backup servers—it may be safest not to put the spare into ordinary service before it’s needed. Presidents are lost in three ways: death, resignation, and impeachment. Vice presidential involvement in policy has the potential to put the “spare” role at risk in at least two of these contexts. When Presidents resign or are impeached, it is often over matters of policy.
Although the risk that a Vice President will be involved in the precipitating events is hard to estimate, it is certainly higher for an activist Vice President than it will be for a Vice President playing a traditionally quiescent role. Though talk of impeaching the current occupants of either office is unlikely to come to anything, it illustrates the risks…. Had Carter been impeached or forced to resign as a result of the Iran debacle, Mondale’s public distance would have been important in preserving his ability to govern.
Whatever one thinks of the impeachment talk of the last few years, two and a half impeachments over our entire constitutional history is probably fewer than we ought to have had. And impeachment becomes more difficult when the president’s replacement is deeply implicated in the activities considered grounds for impeachment.
And there are other problems with a Cheney-style vice presidency as well, problems that ought to be of particular concern to unitary executive fans. One of the more convincing arguments offered by Hamilton against the idea of a plural executive is that “it tends to conceal faults, and destroy responsibility.” He continues,
The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.
That’s certainly been the case over the last seven years. As Barton Gellman has recently shown, information about the so called Terrorist Surveillance Program was so tightly held among Vice President Cheney, David Addington, and their administration allies, that President Bush was unaware until the very last moment that the top echelon of his Justice Department was ready to resign over the illegality of the original program. When an activist vice president deliberately keeps the president in the dark, it can be difficult to discern where the buck really stops.
At the constitutional convention, when Elbridge Gerry objected to the veep’s legislative role, Roger Sherman made the salient point that “If the vice-President were not to be President of the Senate, he would be without employment.” Our early vice presidents didn’t play an important role in the executive branch. Washington kept John Adams at arm’s length from policymaking, and Adams was also frustrated in his attempts to actively manage the Senate as presiding officer. The best view of the vice-president’s constitutional role is that the veep really is supposed to be a bucket of warm [fluid] unless and until he or she is called upon to assume office. And there’s good reason for that. Here’s hoping that Vice President Biden or Vice President Palin will spend less time making policy and more time attending funerals.
Cult of the Vice Presidency
If you read the papers, “all of them,” like Sarah Palin, you may have seen this, but today’s New York Times features questions for the aspiring veeps. My contribution:
The claim by Dick Cheney that he was exempt from certain disclosure requirements because the vice president was a “legislative officer” has been greeted with outrage. But the main power the Constitution grants the vice president is a legislative one — breaking a tie vote in the Senate.
So, Governor Palin, Senator Biden, doesn’t Mr. Cheney have a point?
But, then, if the vice president is a legislative officer, how can he wield the vast executive powers that Mr. Cheney has exercised, including orchestrating and supervising a warrantless wiretapping program?
Can the vice president shift between branches at his convenience? If not, what, in your view, is the constitutional status of the vice presidency?
— GENE HEALY, the author of “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power”
Giving credit where it’s due, I should mention this smart, short law review article by Glenn Reynolds, “Is Dick Cheney Unconstitutional?”
Friend and former Cato colleague Radley Balko has a good one for Joe Biden:
Senator Biden, you’ve been one of the Senate’s most ardent drug warriors. You helped create the office of “drug czar”; backed our failed eradication efforts in South America; encouraged the government to seize the assets of people merely suspected of drug crimes; pushed for the expanded use of racketeering and conspiracy laws against drug offenders; advocated the use of the military to fight the drug war; and sponsored a bill that holds venue owners and promoters criminally liable for drug use by people attending concerts and events.
Today, illicit drugs are as cheap and abundant as they were decades ago. Would you agree that the anti-drug policies you’ve championed have failed? If not, how have they succeeded?
— RADLEY BALKO, a senior editor at Reason magazine
Nihilists!
Dieter: “Ve are Nihilists, Lebowski. Ve believe in nothing! Nothing!”
–Joel and Ethan Coen, “The Big Lebowski”
“And let us recognize above all the 228 who voted no — the authors of this revolt of the nihilists. They showed the world how much they detest their own leaders and the collected expertise of the Treasury and Fed.”
–David Brooks, “The Revolt of the Nihilists,” September 29, 2008
That’s David Brooks tearing his hair out yesterday over the failure of the bailout bill. It’s interesting that Brooks characterizes people who resist the idea of privatized profits and socialized loss as “nihilists.” If you’re not willing to let Brooks’ “new establishment” play with up to $700 billion in tax dollars, if you don’t offer up your wallet the moment an expert cries “crisis!”–why then, you must believe in nothing! Nothing at all!
Interesting, but maybe not all that surprising. Brooks is, after all, the architect of National Greatness Conservatism, the philosophy that says “American purpose can only find its voice in Washington.” Inside Washington: purpose, meaning, fulfillment–glory. Outside Washington: a vast and pitiless void. “All within the state, nothing outside the state, nothing against the state,” as a prominent theorist of national greatness once put it.
How Smart Should a President Be?
William F. Buckley famously said he’d “rather be ruled by the first 500 people in the Boston phonebook than the faculty at Harvard University.” There’s surely something to that, though the worst president in American history was a Princeton man.
Here’s an interesting graph comparing presidential success with presidential IQ. (Explanation here.) (Hat tip: Marian Tupy.)
It’s a fun conversation piece, but it doesn’t tell you much. First of all, all the conventional rankings dramatically downgrade “do-nothing” presidents, so the version of presidential greatness used is always going to overvalue drama, explosions, and ambitious plans to remake the country and the world. Note that here, once again, Warren G. Harding is the Rodney Dangerfield of presidents, ranked dead last despite his admirable record on separation of powers, size of government, and civil liberties.
Moreover, the IQ data are highly dubious, especially the further back you go in history, where it appears to be based on presidential biographies and personal papers, rather than standardized tests from college or military service. When I first looked at the graph, I wondered how they’d concluded that JFK was brighter than John Adams and James Madison, who didn’t need ghostwriters to make them seem smart. It turns out, according to JFK biographer Thomas Reeves, that “Kennedy was actually given an IQ test before entering Choate. His score was 119,” much lower than what he’s assessed at here.
In any event, given the difficulties of assessing IQ from a distance of generations, and the contentious nature of presidential greatness, it’s hard to draw any firm conclusions about the relationship between intelligence and presidential “success.”
However, too many conservatives, it seems to me, are too quick to conclude that brains don’t matter much when we’re choosing a constitutional chief executive. The reasoning seems to be: Jimmy Carter was smart, and he was a bad president; Reagan went to Eureka College and the intelligentsia sneered at him, yet he was a good president. Therefore, we should count ourselves lucky if and when we get George W. Bush and Sarah Palin. This sells Reagan short (and Carter too?): Reagan wasn’t an intellectual, but he was very interested in ideas and anyone who’s seen Reagan’s handwritten 1970s radio speeches, for example, knows that his intellect was nothing to sneer at. His success certainly doesn’t mean that unremarkable intelligence and lack of intellectual curiousity are virtues when it comes to the office of the presidency.
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