“But He’s Our Imperial President”
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.
On Egypt’s Transition
Today POLITICO Arena asks:
At his press conference this afternoon, White House Press Secretary Robert Gibbs distanced the Obama administration from former Egypt envoy Frank Wisner’s suggestion over the weekend that Hosni Mubarak should stay in power as Egypt transitions to a new government. Was Wisner, a former U.S. ambassador to Egypt, right about that and about the potential for a power vacuum?
My response:
Wisner was half right, but on the Mubarak half he was almost certainly wrong. Transitions are messy — at best. Ask the French about theirs two centuries and more ago. Occasionally they’re done pursuant to existing constitutions. Ours from the Articles of Confederation to the Constitution wasn’t, despite which it wasn’t all that messy. We were lucky. We had a relatively healthy culture and strong leaders, even if the early years were often touch and go, as we sometimes forget.
It appears, from press accounts, that the current Egyptian constitution does not provide for the kind of transition that many would like to see. If so, then extra-constitutional measures will need to be taken, including perhaps the drafting and ratification of a new or at least an interim constitution, or more likely some less formal arrangement through which interim authority can be brought into being with a semblance of legitimacy about it – whether a new government or a new constitution and ratification process. A simple call for elections is too simple: by whom, under what procedures, to fill what offices, in what institutions?
All of this is where politics in its most elemental form comes to the fore, for better or worse, as the French saw to their horror. It’s the ultimate test of a culture. So Wisner was right about “the potential for a power vacuum” — although in Egypt the army is likely to fill that vacuum — and in recognizing that a vacuum should be avoided, if possible. But he was likely wrong to suggest that Mubarak should fill that vacuum or serve as a transitional figure since it appears that he no longer has the credibility to do so. Ideally, leaders with credibility need to emerge, and soon.
An Imaginary Federal Election Commission
Jeff Patch and Zac Morgan of the Center for Competitive Politics report on the storm that is brewing at the Federal Election Commission over regulations to implement Citizens United. The three Democratic appointees propose regulations that would impose significant elements of the DISCLOSE Act, a bill that failed to pass Congress last year. The three Republican appointees, in contrast, propose to clarify existing law and clear away defunct regulations, all with an eye toward the holdings in Citizens United. The FEC seems unlikely to adopt the proposals by the Democratic appointees. After all, the Democratic commissioners do not have and are unlikely to obtain majority support for their agenda.
Imagine if the Federal Election Commission were directed by a seven-member board where one party or the other held a working majority. Imagine also the Democrats had a majority on this fictional commission. The regulations proposed by the three current Democratic commissioners would become the law of the land. They would become so despite the fact that Congress itself did not pass the DISCLOSE Act and the regulations contravene the spirit and perhaps the letter of a major Supreme Court decision.
How would that (imagined) outcome be compatible with American constitutional democracy? How would it comport with the rule of law?
The Constitutional Vision of The New York Times
The editorialists at the The New York Times are out of sorts this morning over a Tea Party backed constitutional amendment that would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved. Despite the backing of incoming House majority leader Eric Cantor and legislative leaders in 12 states, the proposal has little chance of succeeding, the Times avers, “but it helps explain further the anger-fueled, myth-based politics of the populist new right.” Indeed, it expresses “with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad.”
Well? Isn’t that what the election last month was all about? But right there, for the Times, is the problem: “In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.” With the Tea Party, however, the tables have turned. What most troubles the Times, it seems, are Tea Party signs that say “We Want Less!”
And nowhere is that better captured than when the Times speaks of “the mistaken vision of federalism on which [this amendment] rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.”
If that vision is “mistaken,” so too, apparently, were the Founders, because it was their vision as well. To be sure, the Constitution they crafted held “competing elements, some constraining the national government, others energizing it,” as the Times writes. And true also, the government they shaped was meant “to promote economic development that would lift the fortunes of the American people” — but mainly by securing the framework for liberty, the rule of law, not by pursuing prosperity through government programs. In particular, the Framers believed in personal, not government, responsibility; private, not collective, property; and a free, not a planned, economy. And they left most power with the states, where it would be exercised responsibly, or not — something to keep in mind as we watch our “failed states” asking Washington (read, the other states) to bail them out.
A Little More Support for Killing Fed Ed
Yesterday, I wrote that rather than counseling incoming Republican Congress members to bolster federal intrusions in education, now is the time to start dismantling Washington’s unconstitutional education apparatus. Exit polling from yesterday’s election, while certainly not focused on education, offers some support for this.
Quite simply, voters want less government in their lives, not more. Support for the Tea Party was very high considering that many people consider it something of a fringe movement, with 41 percent of voters saying they either “strongly” or “somewhat support” the Tea Party. Only 31 percent expressed opposition to the movement. Just as telling, if not more so, 56 percent of respondents said they thought “government is doing too many things better left to businesses and individuals.” Only 38 percent thought “government should do more to solve problems.”
It could be argued that the beginning of the end for the most recent Republican congressional majority was the No Child Left Behind Act, the party’s first major repudiation of what had been a core principle; in this case, that the federal government must stay out of education. Responding to voters now – not to mention following basic principles and the Constitution – by withdrawing federal tentacles from the nation’s classrooms would be a terrific way to start getting the party’s desperately needed credibility back.
Oh, and as I noted yesterday, it would also be the right thing to do for taxpayers and, most importantly, the children.
Can We Take the Truth?
Today POLITICO Arena asks:
Is Alaska Republican Senate nominee Joe Miller correct to suggest that the federal minimum wage is unconstitutional? And beyond that constitutional question, is this a wise political strategy?
My response:
Joe Miller is absolutely right: The federal government has no authority under the Constitution to set a minimum wage — or to do so many of the countless other things it does today. When Nancy Pelosi was asked where in the Constitution Congress was authorized to order Americans to buy health insurance, she responded, “Are you serious?” That’s a mark of how little America’s political elites today understand the document they take an oath to uphold.
James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be “few and defined” – a far cry from today’s Leviathan. How did the change happen? In a nutshell, the ideas of the Progressives – in particular, wide-ranging rule by elites — were incorporated in “constitutional law” (not to be confused with the Constitution), not by constitutional amendment but by a cowed Supreme Court following Franklin Roosevelt’s infamous 1937 Court-packing scheme. That opened the floodgates to the modern redistributive and regulatory state that so many Americans love so much today. Don’t take my word for it. Here’s Rexford Tugwell, one of the principal architects of the New Deal, reflecting on his work some 30 years later: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.”
But that’s changing, if the Tea Party movement is any indication. The American people are waking up to the truth: The governmnet gives nothing that it doesn’t first take. It’s not Santa Claus. And whether the taking is in the form of money, property, or liberty, it comes to the same thing. So in answer to the question whether telling constitutional truths is wise political strategy, we’ll see. If the people can’t take the truth, it’s only a matter of time before we go the way of civilizations before us. Fortunately, we still have enough freedom to tell such truths.
On the “Wisdom” of Obama
Return of the Principal-in-Chief
According to a Fort Worth Star-Telegram report, President Obama plans to reprise last year’s hotly debated role as Principal-in-Chief to help kick off the coming school year.
Will he have the Department of Education once again put out leading and Obama-aggrandizing study guides? Will he again take personal credit for getting computers and other goodies into your kids’ schools? Will this address look as much like a campaign event as the last one? Will he tell all the kids that the really noble thing to do is get government jobs?
We don’t know the answers to these pressing questions yet, but we do know one thing: If he really does plan to play Principal — or maybe Motivational-Speaker – in-Chief again, it will be both unconstitutional, and unacceptable to a whole lot of people.
For a refresher on last year’s spectacle, by the way, check out this terrific “Cato Weekly Video” installment on it:
Teachers Suspended for Class about Constitution
This can’t be happening. Teachers suspended from their posts for showing students a film about the Constitution! I can understand the initial parental inquiry–if a student did say “I was taught how to hide drugs.” There are such films on the market and those would certainly not be appropriate for school. But instead of gathering the facts, the school authorities seem to have made a terrible and unjust decision to suspend these teachers. The Busted film is about constitutional law and police encounters–showing people that they can lawfully stand up to the police and decline to approve a search of their home and belongings, and decline to answer police questions. Hopefully, the ACLU or FIRE will come to the defense of these teachers and get them reinstated fast.
Flex Your Rights, which produced the Busted film, recently released an even better film called 10 Rules for Dealing with Police. Cato hosted the premiere screening here in DC.
The Economist: “Efforts to Challenge Obamacare Are Gaining Momentum”
From a recent news item in The Economist:
[M]illions of Americans…think that Barack Obama’s health-insurance laws must be overturned…[P]olls suggest that many Americans still dislike them…
At the federal level Republican leaders in Congress have jumped on every bit of negative news—for example, a recent report from the Congressional Budget Office suggesting that the reforms will cost more than originally forecast—as just cause for overturning them…
The real action is outside Washington, though. Virginia, Utah and Idaho have outlawed the new individual mandate, which will require everyone to purchase health cover, and other states are looking at similar measures. Elsewhere, opponents have taken to the ballot box. Missouri will hold a referendum in August on the matter. Perhaps half a dozen other states may see a constitutional amendment blocking Obamacare on the ballot in November.
Critics have also filed various lawsuits challenging the constitutionality of health reform. In the most prominent nearly two dozen states, almost all led by Republicans, have banded together. Their chief legal argument is that the new individual mandate is unconstitutional. On May 14th the National Federation of Independent Business, a trade group representing small companies (who worry especially about the costs of compliance with the new law), declared that it too would join in.
Repeal the bill.
Waking Up at Last
Tony Blankley, former press secretary to Speaker of the House Newt Gingrich, exults in the Washington Times that Americans are waking up “to our heritage of freedom” and to the abuse of the Constitution:
All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies’ legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare “deemed” to have been enacted, rather than actually publicly voted on by Congress.
Amazingly, spontaneously, Americans are educating themselves about the details of our Constitution.
He’s absolutely right. All those actions do raise serious questions about whether there are still any constitutional limitations on government, which is to say, whether the Constitution is still in effect, questions that Roger Pilon also raised this week in the Christian Science Monitor. But it would be even better if Americans had noticed the threats to constitutional government a bit earlier, if not during the New Deal or the Great Society, then perhaps during the past decade when, as Gene Healy and Tim Lynch wrote in 2006:
Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes
- a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
- a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
- a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
- a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.
President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.
But better late than never, and we join Tony Blankley in hoping that the Constitution’s limits on the powers of the federal government will once again be an issue in American politics and governance.
Wednesday Links
- John McCain channels Dick Cheney: On March 4, McCain introduced a bill that “would require that anyone anywhere in the world, including American citizens, suspected of involvement in terrorism — including ‘material support’ (otherwise undefined) — can be imprisoned by the military on the authority of the president as commander in chief.”
- President Obama declared passage of a major student-aid reform law yesterday. Will it help? Cato education expert Neal McCluskey calls it a mixed bag.
- Thought experiment: Let’s say for a moment that Congress could actually repeal the health care overhaul. What should they put in its place?
- Should Congress pursue a constitutional amendment that would limit federal spending to one-fifth of the economy?
- Podcast: “Obama’s Intelligence Gathering Needs Oversight” featuring Julian Sanchez.
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