Tag: executive power

Wednesday Links

  • Senate Judiciary Committee abandons hope of bringing any real change to the Patriot Act. Julian Sanchez in The Nation: “The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place.”

The Emperor’s Green Clothes

According to Thursday’s New York Times, “the Obama administration announced on Wednesday that it was moving forward on new rules to regulate greenhouse gas emissions from hundreds of power plants and large industrial facilities.”

President Obama has said that he prefers a comprehensive legislative approach to regulating emissions and stemming global warming, not a piecemeal application of rules, and that he is deeply committed to passage of a climate bill this year.

But he has authorized the Environmental Protection Agency to begin moving toward regulation, which could goad lawmakers into reaching an agreement.

In the book that popularized the phrase “the Imperial Presidency,” historian Arthur Schlesinger Jr. focused overwhelmingly on the vast growth of presidential power in foreign affairs. But as an inveterate New Dealer, Schlesinger had a blind spot where it came to the Emperor’s burgeoning powers at home.

The Supreme Court’s virtual abandonment of the nondelegation doctrine after 1935 paved the way for the modern administrative state, in which Congress all too eagerly cedes legislative power to the executive branch. As the Obama administration’s latest actions on global warming show, the Imperial Presidency comes in green, too. From my column in the Washington Examiner this week:

James Madison believed that there could be “no liberty where the legislative and executive powers are united in the same person.” And yet, here we are, with those powers united in the person of a president who has pledged to heal the planet and stop the oceans’ rise.

The Times article makes clear that Obama won’t push his authority under the Clean Air Act (or the Supreme Court’s interpretation thereof in Mass. v. EPA) as far as he might, yet: “By raising the standard to 25,000 tons, the new rule exempts millions of smaller sources of carbon dioxide emissions like bakeries, soft drink bottlers, dry cleaners and hospitals.” Instead, the administration plans to use its power under the CAA as a hammer to hold over Congress’s head, pushing it to act on cap and trade.

But eventually, Obama could push that authority even further. According to a comprehensive legal analysis issued by NYU Law School’s Center for Policy Integrity“if Congress fails to act, President Obama has the power under the Clean Air Act to adopt a cap-and-trade system.” (Emphasis mine). (Note in the link above that Matt Yglesias, dedicated opponent of Bush’s war-on-terror executive power grabs, doesn’t seem exactly upset at the prospect of cap-and-trade via executive fiat.)

True, such a move would be litigated to death, and the forests of paperwork it would generate might result in a carbon footprint larger than whatever it abated. Nonetheless, we ought to be disturbed by the notion that in a democratic country the president could make such a move without an up or down vote from Congress. And, as I suggest in the Examiner piece, it ought to make conservatives question their longtime conviction that presidential control over administrative agencies is a reliable method for decreasing the country’s regulatory burden:

After 9/11, the phrase “unitary executive theory” (UET) came to stand for the idea that the president can do whatever he pleases in the national security arena. But it originally stood for a humbler proposition: UET’s architects in the Reagan administration argued that the Constitution’s grant of executive power to the president meant that he controlled the executive branch, and could therefore rein in aggressive regulatory agencies.

In an era when Republicans held a virtual lock on the Electoral College, that idea had some appeal. But as Elena Kagan, now President Obama’s Solicitor General, pointed out in a 2001 Harvard Law Review article, there’s little reason to think that “presidential supervision of administration inherently cuts in a deregulatory direction.”

… [A]s Kagan notes, after the Democrats lost control of Congress in 1994, President Clinton used his regulatory authority unilaterally to show progress, pushing “a distinctly activist and pro-regulatory agenda.” As Obama’s popularity erodes, he may come to like the idea of being the “decider.”

Good News: 9/11 Didn’t ‘Change Everything’

On the eighth anniversary of the terrorist attacks on New York and D.C., things are going much better than most of us dared hope in the initial aftermath of that horrible day.  We’re still a secure, prosperous, and relatively free country, and the fear-poisoned atmosphere that governed American politics for years after 9/11 has thankfully receded.

Not everyone’s thankful, however.  Boisterous cable gabber Glenn Beck laments the return to normalcy. The website for Beck’s “9/12 Project” waxes nostalgic for the day after the worst terrorist attack in American history, a time when “We were united as Americans, standing together to protect the greatest nation ever created.” Beck’s purpose with the Project?  “We want to get everyone thinking like it is September 12th, 2001 again.”

My God, why in the world would anyone want that?  Yes, 9/12 brought moving displays of patriotism and a comforting sense of national unity, but that hardly made up for the fear, rage and sorrow that dominated the national mood and at times clouded our vision. 

But Beck’s not alone in seeing a bright side to national tragedy.  Less than a month after people jumped from the World Trade Center’s north tower to avoid burning to death, David Brooks asked, “Does anybody but me feel upbeat, and guilty about it?” “I feel upbeat because the country seems to be a better place than it was a month ago,” Brooks explained, “I feel guilty about it because I should be feeling pain and horror and anger about the recent events. But there’s so much to cheer one up.” 

One of the things that got Brooks giddy was liberals’ newfound bellicosity. That same week, liberal hawk George Packer wrote:

What I dread now is a return to the normality we’re all supposed to seek: instead of public memorials, private consumption; instead of lines to give blood, restaurant lines… ”The only thing needed,” William James wrote in ”The Moral Equivalent of War,” ”is to inflame the civic temper as past history has inflamed the military temper.” I’ve lived through this state, and I like it.

There’s something perverse, if not obscene, in “dreading” the idea that Americans might someday get back to enjoying their own lives.  “Private consumption!”  “Restaurant lines!”  The horror!  The horror!

Like Brooks’s National Greatness Conservatives, a good many progressives thought 9/11’s national crisis brought with it the opportunity for a new politics of meaning, a chance to redirect American life in accordance with “the common good.”  Both camps seemed to think American life was purposeless without a warrior president who could bring us together to fulfill our national destiny. 

That’s why prominent figures on the Right and the Left condemned George W. Bush’s post-9/11 advice to “Enjoy America’s great destination spots.  Get down to Disney World in Florida.  Take your families and enjoy life, the way we want it to be enjoyed.”  As Jeremy Lott notes, “in his laugh riot of a presidential bid,” Joe Biden repeatedly condemned Bush for telling people to “fly and go to the mall!”  A little over a year ago, asked to identify “the greatest moral failure of America” John McCain referenced Bush’s comments when he answered that it was our failure sufficiently to devote ourselves “to causes greater than our self interest.”   

True, Bush’s term “destination spots” is a little redundant; but otherwise, for once, he said exactly the right thing.  And of all the many things to condemn in his post-9/11 leadership, it’s beyond bizarre to lament Bush’s failure to demand more sacrifices from Americans at home: taxes, national service, perhaps scrap-metal drives and War on Terror bond rallies?

National unity has a dark side.  What unity we enjoyed after 9/11 gave rise to unhealthy levels of trust in government, which in turn enabled a radical expansion of executive power and facilitated our entry into a disastrous, unnecessary war. 

In his Inaugural Address, Barack Obama condemned those “who question the scale of our ambitions, who suggest that our system cannot tolerate too many big plans.” “Their memories are short,” he said, “for they have forgotten what this country has already done, what free men and women can achieve when imagination is joined to common purpose and necessity to courage.”

Riffing off of Obama’s remarks, Will Wilkinson wrote:

Can you recall the scale of our recent ambitions? The United States would invade Iraq, refashion it as a democracy and forever transform the Middle East. Remember when President Bush committed the United States to “the ultimate goal of ending tyranny in our world”? That is ambitious scale.

Not only have some of us forgotten “what this country has already done … when imagination is joined to a common purpose,” it’s as if some of us are trying to erase the memory of our complicity in the last eight years — to forget that in the face of a crisis we did transcend our stale differences and cut the president a blank check that paid for disaster. How can we not question the scale of our leaders’ ambitions? How short would our memories have to be?

Oddly, even Glenn Beck seems to agree, after a fashion.  The 9/12 Project credo celebrates the fact that ”the day after America was attacked, we were not obsessed with Red States, Blue States, or political parties.”  And yet Beck has called on “9/12’ers” to participate in tomorrow’s anti-Obama “tea party” in D.C. 

On the anniversary of 9/11, what’s clear is that, despite the cliche, September 11th didn’t “change everything.”  In the wake of the attacks, various pundits proclaimed “the end of the age of irony” and the dawning of a new era of national unity in the service of government crusades at home and abroad.  Eight years later, Americans go about their lives, waiting in restaurant lines, visiting our ”great destination spots,” enjoying themselves free from fear — with our patriotism undiminished for all that.  And when we turn to politics, we’re still contentious, fractious, wonderfully irreverent toward politicians, and increasingly skeptical toward their grand plans.   In other words,  post-9/11 America looks a lot like pre-9/11 America.  That’s something to be thankful for on the anniversary of a grim day.

The White House as Animal Farm

As George Orwell’s Animal Farm closes, the revolutionary pigs have been transformed into oppressive humans.  It took some time to occur on the Animal Farm.  It’s taken just a few months in the Obama White House.

Reports McClatchy Newspapers:

President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama’s legal arguments repeatedly mirror Bush’s: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

“It’s putting up a veritable wall around the White House, and it’s so at odds with Obama’s campaign commitment to more open government,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist.

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration’s legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

“There is no question that there are (durable) cultures and mindsets in agencies,” Weismann acknowledged.

Conservatives once opposed executive aggrandizement.  Then with George W. Bush in office, they embraced the idea of the presidency as a kind of elective monarchy.  With President Barack Obama now pushing the executive power grab, will conservatives rediscover their inner-Constitution and again join the barricades for liberty?

Cultwatch: Union Station, New York Times

obamastoreSnapped this pic at DC’s Union Station this afternoon, on my way from the Amtrak platform to the Metro (where the machine dispensed a metrocard featuring a grinning BHO). Readers planning to visit DC will be happy to know that you can get all your Obama-related tchotchkes and talismans in one convenient locale right after you get off the train.

Say what you will about hapless Jerry Ford, but he had this going for him: nobody ever thought of making an action figure in his image.

In other cult-related news, today’s New York Times has an “Op-Extra” sidebar,with “excerpts from Opinion Online.” Our friend Judith Warner, last seen discussing cougar fantasies about “sex with the president,” weighs in about the shirtless Obama cover on the current Washingtonian:

“Just as having a president who can string a sentence together with subject-verb agreement makes us all look a little bit smarter, just as having a really admirable family in the White House makes us all seem a little less dysfunctional, perhaps having a president who can look good in a bathing suit is in some bizarre way good for the nation.”

Yeah, I mean, God knows it’s been good for Russia.

Counterterrorism, Torture, and the Law

Over at The Wall Street Journal, Cong. Peter Hoekstra calls for an investigation into “what the Obama administration may be doing to endanger the security our nation has enjoyed because of interrogations and other antiterrorism measures implemented since Sept. 12, 2001.” Hoekstra implies, or at least clearly believes, that Obama’s renunciation of torture has made the country less safe. Rest assured, when the next attack occurs (and there will be another attack), Hoekstra and other supporters of torture will claim vindication, even though they won’t be able to point to direct evidence that torture would have averted the attack. It is equally impossible to prove a negative – why something does not occur – as it is to prove that an action not taken in the past would have prevented something in the present.

Similarly, former Vice President Cheney claims that the use of techniques such as waterboarding, sleep deprivation, stress positions, and cramped confinement enabled the U.S. government to stop future terrorist attacks, and he has asked the Obama administration to declassify the documents that supposedly prove it. Cheney has previously said that President Obama’s renunciation of torture increases the likelihood that future attacks will be successful.

Of course, Cheney has not asked for the declassification of all information obtained by torture. He presumably doesn’t want the American people to know the countless false positives, the fake leads, the purely bogus information offered up by those being tortured in a vain attempt to halt – or merely postpone – their severe discomfort. (Gene Healy documents a few of these in his recent column.)

Nor can Cheney or Hoekstra prove that the few kernels of useful information obtained under torture could only have been acquired under torture, and not by other techniques, techniques that were consistent with our laws, and that we employed in past conflicts. They can’t prove such claims, because they aren’t true.

In the end, however, this is not a question of whether torture works. Appeals to reason fail when people perceive a danger beyond what reason informs. After all, no reasonable person could logically conclude that terrorism poses an existential threat to the Republic, and yet that false belief continues to shape our conduct. We choose not to consider what has worked in the past because we perceive the past to be irrelevant.

That our actions are driven not by logic but by our fears – visceral, instinctual fears – is understandable. Vengeful actions, while not logical, can be justified in certain circumstances. Would the relatives of those killed in Oklahoma City have been justified in publicly stoning Timothy McVeigh? We could have given a rock – or better yet a piece of rubble from the Alfred P. Murah building – to one family member of each of those killed. The parents of the children killed in the day care center might have been handed particularly large chunks of concrete. Or perhaps the families of the 87 people killed in the Happy Land social club should have been allowed to burn alive Julio Gonzalez, the unemployed Cuban refugee who set the fire? And if we handed a machete to Mariane Pearl – or to Adam Daniel, the son Daniel Pearl never knew – and watched them chop off Khalid Sheikh Mohammed’s head, no one would shed a tear. We might even call it justice.

That we do not resort to such tactics is one of the things that separate us from animals.

In the animal kingdom, might makes right. If the lion can catch the antelope, no higher authority can stop it from devouring his prey. No moral code teaches the lion that he should eat grass instead.

A conscience is not the only thing that separates us from the animals. When our moral compass fails us, when we are blinded by rage and a thirst for justice, law brings us back, or merely holds us back, from doing what our basest human instincts tell us is right and proper.

Since 9/11, many people have framed these laws as a mark of our weakness. Our enemies are not bound by any code, so why should we be? Lincoln suspended habeus corpus believing it necessary to save the Union. FDR approved the internment of Japanese-Americans on similar grounds. It doesn’t matter that neither measure was actually instrumental to saving the Republic from destruction; indeed, the evidence shows that they had no such effect. All that matters is that these men acted in good faith.

Thus is the torture debate at the center of our evolving concepts of executive power, with one side saying that the president is not above the law, and the other side saying that a president (and, actually, not just the president, but anyone in the executive branch) is immune from such laws when he or she believes them to be an impediment to his ability to carry out his duties. It isn’t exactly Frost/Nixon, “when the president does it, that means that it is not illegal,” but it’s close enough.

It is not as high as some people might think, but still forty percent of Americans believe that torture is appropriate in certain circumstances, even though it is clearly against the law. Most of these same people presumably don’t believe that other laws – murder, rape, incest, and human slavery, for example – can be circumvented by presidential fiat. But terrorism is different, so the thinking goes, and fighting it requires us to discard troublesome laws.

The reality is exactly the opposite. Because a central object of terrorism is to induce advanced societies to come loose from their ideological moorings, we must strive even harder to adhere to them. Because terrorists attempt to trick or goad a government founded on certain principles to depart, if only for a moment, from those same principles, our leaders must resist the urge to do so.

On these terms, we haven’t been doing a very good job. We have been circumventing our fundamental principles for seven years, and many Americans think that we should – nay that we must – continue doing it…indefinitely.

It is a sad and sickening spectacle. If we continue down this path – if we cannot call torture for what it is, if we cannot restore an ironclad respect for the rule of law, if we cannot claw back some semblance of separation of powers, with a Congress willing to oppose White House power grabs instead of simply enabling them – then the terrorists will have won.

Sanford Rejects Faustian Bargain

Yesterday, as expected, South Carolina Gov. Mark Sanford became the first governor to reject some of his state’s share of stimulus funds, spurning $700 million (of the about $8 billion headed his way) that he said would harm his state’s residents in the long run.  South Carolina’s General Assembly (controlled by Republicans who have long opposed Sanford’s attempts to cut spending, lower taxes, and generally reform government operations), using a provision of the stimulus bill inserted by Rep. James Clyburn (D-SC), nevertheless plans to seek the funds without the governor’s support.  They cite section 1607 of the American Recovery and Reinvestment Act of 2009, which provides that, notwithstanding a requirement for gubernatorial certification of a request for funds:

If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.

The question arises, setting aside the relative merits of both sides’ positions, whether the governor (or someone else) could challenge this “alternative certification” provision on constitutional grounds.  Here are some initial thoughts:

A state executive (and/or citizens of the given state) could bring colorable claims under the Tenth Amendment (powers not delegated to the federal government are reserved to the States and the people) , state separation of powers (legislature exercising executive power), and the non-delegation doctrine (Congress delegating its legislative authority to non-federal actors). Whether such challenges would be successful is a different matter.

The strongest claim would probably be under a combination of the Tenth Amendment and state law (depending on what the state constitution and statutes says about the federal grant process), especially given that much of the federal money is likely to come with strings/mandates attached – or would otherwise pervert state budgeting processes (as Sanford spelled out in a letter to state legislators). That is, depending on the particular program funds in question, it could well be that the federal government is doing an end-run around the state executive in “commandeering” (a term of art taken from the important Supreme Court case of Printz v. United States) state agencies without the full lawful acquiescence of the state government – i.e., without presentment of a bill for the executive to sign in the normal course of legislative action.

Moreover, I’m not sure how federal legislation could lawfully trump a state constitutional/statutory provision requiring that, say, federal monies only be accepted by state agencies subject to executive certification. If it could, then what’s to stop the federal government from putting in a further alternative provision allowing certification by majority vote of a state supreme court, let alone by town councils, agency heads, or any other imaginable alternatives? No, a conclusion to the contrary seems facially contrary to the separation of powers, disrupting state political structures in a way that the federal government cannot do by simple legislation.

As a caveat, the above analysis hinges on the substance of the relevant state constitution and statutes (and I haven’t yet thoroughly studied South Carolina’s, though I suspect they’re favorable to the points I’m making). The point is, it is not at all clear that Section 1607 should be considered safe from legal challenge – though courts will likely go out of their way to avoid constitutional conflicts or deciding what they may characterize to be “political” questions.