Topic: Government and Politics

Suing the President: Maybe Legal, Likely Unwise

“So sue me,” said the president. Late yesterday, in a mostly party-line vote, the House authorized Speaker Boehner to do just that—to call President Obama over his repeated acts of constitutional dereliction. This is a close call, legally. But as I argued recently, I believe it would be unwise for Boehner to actually bring such a suit, much less to initiate impeachment proceedings, as some Republicans are urging him to do. With mid-term elections less than 100 days ahead, the nation’s attention should be focused on Obama’s sorry record, not on the legal merits of a partisan suit, as inevitably would happen given the legal problems surrounding such a suit.

Those problems are not insignificant. Under the Constitution’s Case or Controversy Clause, a plaintiff must have “standing” to bring a suit. In this case, the House must show some injury in fact that is fairly traceable to the president’s conduct and is redressable by the court. The theory the House is relying on here is novel: the idea is that Congress as an institution is injured when the president refuses to perform his constitutional duty to execute the law, as when he postponed Obamacare’s employer mandate, thus nullifying Congress’s act and leaving it no remedy—it’s power to withhold funds from the executive branch in this regard would have no effect on his failure to act, as it would had he acted contrary to the law.

That may get Congress over the standing hurdle. But again, if it doesn’t, and even if it does, attention will still be focused on the suit, not on Obama’s record. As for impeachment, that would be an even greater distraction, as we saw in the case of President Clinton, and would be a fool’s errand as well, given the Democratic Senate. Frustration over this lawless president is palpable, as the polls show. But at the end of the day, the remedy is likely to be political, not legal. Put plainly, there is a constitutional remedy for these constitutional wrongs: it’s in the voting booth.

House Lawsuit against Obama Has Legal Merit

When the president violates the Constitution, there has to be a remedy short of impeachment, which is a blunt political tool that does nothing to reverse the illegal actions at issue. Speaker Boehner’s proposed lawsuit seems measured to challenge what is perhaps President Obama’s most egregious extra-constitutional action, rewriting the Affordable Care Act to suit his political needs. 

When Congress passes a law, it is the president’s duty to enforce it. The president has discretion in how to enforce it, to be sure, but he can’t suspend, waive, ignore, or change it. The House of Representatives is thus well-placed to sue over the institutional injury that the executive branch has foisted on the legislative branch. 

For more, see this week’s op-eds by David Rivkin and Elizabeth Price Foley in the Wall Street Journal and Washington Post.

The Export-Import Bank and Its Victims: Which Industries Bear the Brunt

The Export-Import Bank of the United States is a government-run export credit agency, which provides access to favorable financing for the foreign customers of some U.S. companies.  For several months, Washington has been embroiled in a debate over whether to reauthorize the Bank’s charter, which will otherwise expire on September 30.  While Republican House leadership remains publicly committed to shutting down the Bank, a bipartisan group of eight senators introduced reauthorization legislation last night, setting the stage for a post-August recess showdown.

Reauthorization buffs contend that Ex-Im fills a void left by private sector lenders unwilling to provide financing for certain transactions and, by doing so, contributes importantly to U.S. export and job growth.  Rather than burdening taxpayers, the Bank generates profits for the U.S. Treasury, helps small businesses succeed abroad, encourages exports of green goods, contributes to development in sub-Saharan Africa, and helps “level the playing field” for U.S. companies competing in export markets with foreign companies benefitting from their own governments’ generous export financing programs.  Accordingly, failure to reauthorize the Bank’s charter would be akin to unilateral disarmament.

But those justifications – two rationalizations, really, and a few token appeals to liberal sensibilities intended to create the illusion of a bipartisan imperative for reauthorization – are unpersuasive or non-responsive to Ex-Im’s critics.  By effectively superseding the risk-based decision-making processes of legions of private-sector, profit-maximizing financial firms with the choices of a handful of bureaucrats using non-market benchmarks and pursuing often opaque, political objectives, Ex-Im risks taxpayer dollars.  That Ex-Im is currently self-sustaining and generating revenues is entirely beside the point and is no more reassuring than a drunk driver rationalizing that he made it home safely last night so there’s no danger in drunk driving tonight.

Ukraine Crisis Reminds Americans Why NATO Should Not Expand

The bitter conflict in Ukraine drags on.  Russia continues to destabilize Kiev and NATO remains divided on how to respond.

Washington has taken the lead against Moscow even though America has little at stake in Russia’s misbehavior.  In fact, the crisis has generated a spate of U.S. proposals to take military action and expand NATO.

For instance, Sen. John McCain urged adding Ukraine to the “transatlantic” alliance.  Former UN ambassador John Bolton suggested including Georgia and Ukraine.  Other proposed candidates for the alliance include Armenia, Bosnia-Herzegovina, Finland, Kosovo, Macedonia, Moldova, Montenegro, and Sweden. 

Efforts to expand NATO are strikingly misguided.  The end of the Cold War eliminated the reason for creating the alliance. 

However, alliance advocates acted like nothing had changed and proposed new justifications for the old organization.  Member governments eventually turned NATO into a mechanism to integrate Central and Eastern European states.   

NATO has turned into a dole for indolent rich countries.  After Moscow’s collapse the Europeans steadily reduced their military outlays. 

Now the Ukraine crisis has reminded everyone that the alliance might be called upon to confront nuclear-armed Russia.  Several of the newest members are screaming for America to “reassure” them by establishing bases and deploying troops.

This ludicrous situation demonstrates the folly of NATO expansion.  The U.S. should not compound its earlier mistake by bringing in additional members with even less strategic value. 

The list of potential members suggests strategic madness in Washington.  For instance, tiny Balkan states Bosnia-Herzegovina, Macedonia, and Montenegro never have mattered for U.S. security. 

Playing Tourist in Beijing: Communing with the Greatest Mass Murderer in History

It isn’t often that I get to spend time with mass murderers, let alone the greatest mass murderer in history.  But in playing tourist in Beijing I had a chance to hang out with the Great Helmsman himself, Mao Zedong.

His mausoleum sits at the center of Tiananmen Square, facing the Gate of Heavenly Peace with its famous Mao portrait.  The facility’s hours of operation are few and the number of visitors many.  When I joined the line mid-morning it began at the building’s side, headed to the rear, then reversed course back toward the front.  The line moved at a steady slow walk, with individuals and groups constantly attempting to push by and gain a couple feet. 

The lines split apart going through a security check-point—no doubt, al-Qaeda has placed the mausoleum high on its target list.  The line then reformed and moved forward again.  Vendors sold flowers which people deposited on entering the mausoleum, in front of a statue of a sitting Mao, backed by a painting of a peaceful mountain scene.  He looked thoughtful, as if plotting his next madcap scheme, a la the “Great Leap Forward,” actually into the abyss, and the Cultural Revolution, which consumed even the most dedicated communists. 

In the next room the Great Man—assuming it really is him—lies under glass beneath a blanket decorated by a hammer and sickle. Two soldiers stood guard behind him, while mausoleum staff urged onlookers to move along.  No time to look at the body of the greatest mass murderer in history, who caused decades of human carnage.

Raising Big Money to Fight Big Money?

In the latest of many enthusiastic National Public Radio reports on Professor Lawrence Lessig and his efforts to remove money from politics, Lessig outlines big plans:

In 2016, we want to raise a substantially larger amount of money - could be 200 million, could be 800 million - so that we can win a Congress committed to fundamental reform in the way campaigns are funded.

Well, if spending $800 million in billionaires’ contributions to “win a Congress” won’t knock out big money, what will?

But even if he does raise this kind of money, Lessig might find himself disappointed. You can’t always get what you want, even if you’ve got a lot of money to throw around. From John Connally’s “$13 million delegate” in 1980 to Ross Perot’s $65 million campaign in 1992 to Meg Whitman, Linda McMahon, and Jeff Greene in 2010, the candidates with the most money sometimes fail badly. Or take the billion dollars that Republican groups planned to spend in 2012 to take back the Senate and the White House. 

Given the consistently low priority Americans have placed on “campaign finance reform” for decades and up to the present – the lowest priority in this 2012 Pew poll, save for global warming – even $800 million may not be enough to sway the voters.

John Samples has raised many questions about the advisability of campaign spending restrictions in articles such as this one.

Second Verse, Same as the First

Twitter fight!

Yesterday morning, a line in a New York Times article by Nick Confessore offered me the opportunity for mirthful needling that turned into a full-blown, impossibly brief exchange of views on Twitter.

The article was on Harvard Law Professor Lawrence Lessig’s plan to elect candidates who are committed to his version of campaign finance reform. It quoted Lessig saying, “Inside-the-Beltway people don’t think this issue matters, they don’t think voters vote on the basis of this issue, and they advise their politicians not to talk about it.”

So I tweeted: “I don’t think this issue matters.” Then I tweeted: “Voters don’t vote on the basis of this issue.” (I didn’t bother with the rest because I don’t advise politicians.)

I’m inside the beltway! I’m a people! How could I not?!

Responding to another NYT reporter’s question, I touted my own work as “speech-friendly reform,” linking to our upcoming event on congressional Wikipedia editing. Just think of the prospects if legislative staff—some of the foremost experts about the bills in Congress—contributed information about notable bills to Wikipedia for the public to peruse ahead of congressional debates.

Professor Lessig took the crumb of bait, asking me “how is more speech not speech friendly #Escapethe1990s.” (I still don’t know what the hashtag means.) Assuming he was still working on public/taxpayer funded campaigns—I’m not a follower of Lessig’s in the Twitter sense or any other—I tweeted about the wrong of forcing people to pay to money to support speech with which they disagree.

Lessig’s plan is not detailed on the website of his “Mayday PAC,” which only offers gauzy promises of “fundamental reform.” After some back and forth, I learned that Lessig’s reform plan is not direct public funding, in which taxpayer money goes from the Treasury to campaigns, but indirect. He would rebate $50 in taxes in the form of a “democracy voucher.” The taxpayer could give the voucher to any candidate who pledges only to take such vouchers, it could go to the political party of the taxpayer, or “if an independent, back to this public funding system.”