Archives: 06/2009

Spinning…When a President who Seeks Dictatorial Powers in an Illegal Move Is Removed by the Congress and by the Supreme Court, Is it a “Military Coup”?

The media discussion of events in Honduras is remarkably confused. Here’s CNN:

The president of the U.N. General Assembly scheduled a noon session Monday to discuss the situation in Honduras, following a military-led coup that ousted the sitting president.

and

Micheletti, the head of Congress, became president after lawmakers voted by a show of hands to strip Zelaya of his powers, with a resolution stating that Zelaya “provoked confrontations and divisions” within the country.

….

The coup came on the same day that he had vowed to follow through with a nonbinding referendum that the Honduran Supreme Court had ruled illegal.

Imagine that George Bush, Barack Obama, Bill Clinton, Ronald Reagan or some other American president had decided to overturn the Constitution so that he could stay in power beyond the constitutionally limited time. To do that, he orders a nationwide referendum that is not constitutionally authorized and blatantly illegal. The Federal Election Commission rules that it is illegal. The Supreme Court rules that it is illegal. The Congress votes to strip the president of his powers and, as members of Congress are not that good at overcoming the president’s personally loyal and handpicked bodyguards, they send police and military to arrest the president. Now, which party is guilty of leading a coup?

This is another example of populist, dictatorial, anti-democratic thought parading as “democratic.” I discuss the issue in my recent lecture on enduring democracy in New Delhi.

Beginning of the End for Bernanke

Fed Chairman Bernanke’s term as Chair ends in January 2010. So far President Obama has offered Bernanke praise for his performance, but little else. After last week’s House Oversight Committee hearing focusing on Bernanke’s role in Bank of America’s purchase of Merrill Lynch, it is now readily apparent that the Chairman has few supporters on Capitol Hill. While his nomination will not be subject to the approval of the House of Representatives, or any of its Committees, the Senate Banking Committee’s reaction to Treasury Secretary Geithner’s plan to extend the Fed’s power serves as a useful proxy in gauging that Committee’s view of the Fed’s recent performance.

Several recent polls show President Obama to be broadly popular with the American public, while the public holds some concern over the scope and cost of his policies. His policy that garners the least support has been his bailout and support for the auto industry. It is no secret that the American public was not enthusiastic about the bailouts at the time, and is even less so now. With Hank Paulson having left the stage, Bernanke is now the public face of corporate bailouts. While having Bernanke around may offer President Obama a convenient target for the public’s anger over bailouts, re-appointing Bernanke would finally force Obama’s hand – so far he’s managed to support the bailouts with little fallout, as Bush and others have taken the blame. Re-appointing Bernanke makes him Obama’s pick.

In addition to political risk to President Obama, one can assume that many Senate Democrats are not looking forward to having to vote for the man who bailed out AIG. It is a fair bet that many Republican Senators would not vote for Bernanke’s re-appointment, leaving it up to the Democrats to secure his re-appointment.

Whatever the merits, or flaws, in his performance as Federal Reserve Chair, support for Bernanke’s re-appointment is becoming a proxy for one’s support, or opposition, to corporate bailouts.

Fixing Detention

The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.

This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.

This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.

The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.

The Ricci Ruling: A Victory for Merit over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.

Supreme Court Rules on Ricci v. DeStefano

In its opinion today in Ricci v. DeStefano, the Supreme Court came down solidly for upholding the equal protection of the law.

The political implications of this decision for the Sotomayor nomination are several, but her refusal to wrestle with the important issues at stake and to side summarily with the city, together with her many statements off the bench about “identity politics,” should make for very interesting confirmation hearings just two weeks ahead.

The Court reversed the decision of the Second Circuit panel on which Judge Sonya Sotomayor sat, which had upheld, summarily, the lower court’s decision to allow the city of New Haven to throw out the results of a racially neutral promotion exam for city firefighters after whites did better than blacks on the exam.

As the Court said, all the evidence suggests that the city rejected the test results because the higher scoring candidates were white. The city’s rationale for engaging in this intentional discrimination was to avoid a suit by black firefighters. But the city could take the position it did only if there were strong evidence that its test was racially biased or not job related or that there was some other equally valid non-discriminatory test that the city refused to administer. There was no such evidence, the Court concluded. Had the city been sued by the black firefighters, it would have won.

Thus, it’s rationale for throwing out the test results will not withstand scrutiny. The city engaged in outright intentional discrimination.

Federal University

There is no official word on this yet, but according to Inside Higher Ed the Obama Administration is putting the finishing touches on a proposed “National Skills College” that will include federally designed – and owned – courses:

The funds envisioned for open courses – $50 million a year – may be small in comparison to the other ideas being discussed. But in proposing that the federal government pay for (and own) courses that would be free for all, as well as setting up a system to assess learning in those courses, and creating a “National Skills College” to coordinate these efforts, the plan could be significant far beyond its dollars.

Darn right it could be significant! Washington would for all intents and purposes be on the way to creating a federal university, and not one like the service academies that is constitutionally justifiable under federal defense powers. No, this one would be completely and utterly unconstitutional, and would unfairly compete with lots effective private – including for-profit – institutions. And, of course, there’s the little matter of how this would be paid for.

I’ll have more on this as details become available.

The Importance of Just Saying No

George Will:

Conservatives are accused of being a party of “no.” Fine. That is an indispensable word in politics because most new ideas are false and mischievous. Furthermore, the First Amendment’s lovely first five words (“Congress shall make no law”) set the negative tone of the Bill of Rights, which is a list of government behaviors, from establishing religion to conducting unreasonable searches, to which the Constitution says: No.