Archives: January, 2013

Obama’s Andrew Shepherd Moment?

Washington Post columnist Richard Cohen today laments what he calls the “cratering of liberalism.” Cohen remembers that the “liberal agenda once included confiscating handguns and abolishing the right to own one.” Yes, agreed, we should remember that. Liberals would really like Obama to channel Michael Douglas, who played a liberal commander-in-chief in the Rob Reiner/Aaron Sorkin film, The American President (excerpt below). Should we do this in the inaugural address or the state of the union? That’s probably the debate among Obama’s speechwriters. 

Pakistan’s Dysfunctional Democracy

News out of U.S. “ally“ Pakistan appears promising for its fragile democracy, but may actually signal a continuation of that country’s destructive political pattern. For the past two days, Sufi cleric Tahir-ul Qadri has led protests in Islamabad calling for a caretaker administration to take over for the ruling coalition, a swap he claims will help to ensure that upcoming parliamentary elections (yet to be scheduled) remain honest. Amid those protests, Pakistan’s Supreme Court issued an arrest order for Prime Minister Raja Pervaiz Ashraf, who as minister for water and power allegedly received illegal kickbacks. 

A colleague asked me: “What does this mean for Pakistani democracy?” To which I replied, “When did it ever exist?” 

Certainly, any and all condemnations of public sector corruption comes as welcome news, especially in a country ruled by a tiny minority of kleptocratic elites. Still, such developments require historical background. On cleric Qadri, last week Radio Free Europe’s Daud Khan Khattak asked rhetorically “Can This Islamic Cleric Liberalize Pakistan’s Politics?“ Perhaps, but unlikely. The federal government responded quite rightly that Qadri’s demand for the government to step down—and the judiciary and the military help appoint a caretaker government—is unconstitutional. What makes Qadri’s demands especially troubling, writes Eurasia Group’s Shamila N. Chaudhary, is that the current government will be the first time a [civilian] government in Pakistan finishes a complete term.” It seems imprudent to derail such a historic moment by emboldening Pakistan’s military, which carries a long history of dictatorship. In fact, Qadri once supported Pakistan’s former General-President Pervez Musharraf. 

On that note, another prominent figure in this unfolding drama who once supported the maintenance of dictatorial authority is none other than Pakistan Supreme Court Justice Iftikhar Chaudhry. In February 2000, after Musharraf overthrew democratically elected Prime Minister Nawaz Sharif in a bloodless coup in 1999, Chaudhry, then chief justice of the Balochistan Supreme Court, swore an oath of office under Musharraf to become a judge on Pakistan’s Supreme Court. As Pakistan analyst Seth Oldmixon points out, the court, in its own words, “validated the extra-constitutional step on the touchstone of the doctrine of state necessity and the principle of salus populi suprema lex” (Let the good of the people be the supreme law). 

Spontaneous bouts of pro-democracy protests are promising, but sadly it appears that no one is innocent in this confusing political spectacle. Democracy or no democracy, though, Islamabad’s relations with Washington will likely continue its transactional nature, with a heavy and unpredictable mixture of antagonism and cooperation.

Why the Rush, Governor Cuomo?

Legislation rushed through passage is invariably bad law. And the gun bill that emerged overnight from the New York State Legislature, on its first day back, will surely be no exception. Written in private by Gov. Andrew Cuomo and legislative leaders and completed late yesterday, “rank-and-file Senators had only a few minutes to read the legislation before voting on it,” the New York Times reports. “If there is an issue that fits the definition of necessity,” Cuomo intoned, “I believe it’s gun violence.” Really! So pressing are events that the normal three-day waiting period, so legislators could study the bill, had to be waived?

So what do we have? A bill that bans, as “assault weapons,” semiautomatic pistols and rifles with detachable magazines and “one military-style feature,” and semiautomatic shotguns with such a feature. And what is a “military-style feature”? We’ve seen this play before. New Yorkers who already have such guns can keep them, but they’ll have to be registered. Expect litigation on all of those points. Once again, it’s the law-abiding people this bill will affect, not those we have to worry about.

But if the gun part of the bill is problematic, the mental health part is even more so. Mental health professionals would be required “to report to local mental health officials when they believe that patients are likely to harm themselves or others,” the Times tells us, the failure of which would not be sanctioned if they acted “in good faith.” Here again, as with the guns, we imagine that all we need is more law to address what is doubtless the most difficult part of the problem. The implications for confidentiality and, more important still, for encouraging people to seek help, are deeply troubling.

Yet the most important measure that could be taken immediately—one that has proven to reduce deaths from random mass shootings—seems to be missing altogether from this bill, despite the fact that two-thirds of Americans support it. It is to have armed security officials at schools and other currently “gun-free zones.” This act is likely to have little effect on the real problem, however much it makes those who promoted and passed it feel good. 

Do the American People Agree with Obama?

News reports quote President Obama, in discussing the debt ceiling and the ongoing argument over tax and spending policy in his press conference yesterday, saying:

It turns out the American people agree with me. 

Do they? It’s true that a majority of respondents told pollsters that they wanted to raise taxes on someone else. And Congress did that in the “fiscal cliff” legislation.

But what about the president’s insistence on a larger government and essentially no cuts in federal spending? The election day exit polls shed some light on those questions.

51 percent of voters polled said the government is doing too many things better left to businesses and individuals—8 points higher than in the 2008 election. Only 43 percent of voters said they believe government should be doing more.

49 percent said the 2010 health care law should be repealed, with only 44 percent of voters supporting it.

And 51 percent said they prefer smaller government with fewer services, while 43 percent prefer larger government. As usual.

There are many reasons that Mitt Romney lost the election, from the Republicans’ alienation of everyone except straight white men, to an effective campaign of demonization, to “legitimate rape.” But the polls don’t show that voters agree with President Obama on constant expansion of the size, scope, and power of government.

The Good, Bad, and Ugly of the Obamacare Ruling

The Texas Review of Law and Politics has just published as a law review article an expanded, annotated version of the speech I’ve been giving all over the country regarding the Supreme Court’s ruling in NFIB v. Sebelius.  The title, which I hope will hold up with the passage of time, is “Like Eastwood Talking to a Chair: The Good, the Bad, and the Ugly of the Obamacare Ruling.”  Here’s the abstract:

The constitutional challenge to Obamacare was a case that comes along once every generation, if not less often. Not because it could affect a presidential election or was otherwise politically significant, but because it reconsidered so many aspects of our constitutional first principles: the fundamental relationships between citizens and the government and between the states and the federal government; the role of the judiciary in saying what the law is and checking the political branches; and the scope of and limits to all three branches’ powers. This case was not about the state of health care in America or how to fix this troubled area of public policy. It was instead about how to read our nation’s basic law and whether Congress was constitutionally authorized to use the tools it used in this particular instance.

Anyone reading this article will already know at least the basic outline of the Supreme Court’s ruling. As I wrote on the leading Supreme Court blog in the wake of the decision, those who challenged the law won everything but the case. That is, the Supreme Court adopted all of our legal theories regarding the scope of federal regulatory authority and yet Obamacare stands. This article explains and elaborates on those basic points, the good (Commerce Clause, Necessary & Proper Clause, Spending Clause), the bad (the taxing power), and the ugly (John Roberts’s reasoning and motivations).

In sum, the Constitution’s structural provisions — federalism, separation and enumeration of powers, checks and balances — aren’t just a dry exercise in political theory, but a means to protect individual liberty from the concentrated power of popular majorities. Justice Kennedy said it best in summarizing the joint dissent from the bench: “Structure means liberty.” If Congress can avoid the Constitution’s structural limits by “taxing” inactivity, its power is no more limited and liberty no better protected than if it were allowed to regulate at will under the Commerce Clause. The ultimate lesson to draw from this two-year legal seminar, then, is that the proper role of judges is to apply the Constitution regardless of whether it leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.

As should be clear from this article, I’m still not over the ruling – by recognizing that Obamacare was unconstitutional but shying away from striking it down, John Roberts fundamentally shook my faith in our system of justice – and probably never will be.

M. Hollande Sends Troops to War

A top headline in today’s Washington Post reads (in the print version)

France’s Hollande intervenes in Mali

An odd headlne, I thought. I’m sure Hollande himself isn’t picking up a gun and heading for Mali. And if he’s simply sending troops (as the online version says), don’t we usually just say “France sends troops”? But in fact, of course, some person or persons actually send troops to war. It isn’t done by a whole country collectively. And in the case of France, apparently one person has the authority to launch military interventions. (Thank God we don’t live in such a country!)

The headline in my morning paper put me in mind of one of Tom Palmer’s favorite quotations in discussions of statism and individualism. It comes from the historian Parker T. Moon of Columbia University in his study of 19th-century European imperialism, Imperialism and World Politics

Language often obscures truth. More than is ordinarily realized, our eyes are blinded to the facts of international relations by tricks of the tongue. When one uses the simple monosyllable “France” one thinks of France as a unit, an entity. When to avoid awkward repetition we use a personal pronoun in referring to a country—when for example we say “France sent her troops to conquer Tunis”—we impute not only unity but personality to the country. The very words conceal the facts and make international relations a glamorous drama in which personalized nations are the actors, and all too easily we forget the flesh-and-blood men and women who are the true actors. How different it would be if we had no such word as “France,” and had to say instead—thirty-eight million men, women and children of very diversified interests and beliefs, inhabiting 218,000 square miles of territory! Then we should more accurately describe the Tunis expedition in some such way as this: “A few of these thirty-eight million persons sent thirty thousand others to conquer Tunis.” This way of putting the fact immediately suggests a question, or rather a series of questions. Who are the “few”? Why did they send the thirty thousand to Tunis? And why did these obey?

I guess the Post has avoided the obfuscation of which Moon complained by stating frankly: “Hollande sends troops to Mali.”