January 14, 2013
Examine your Conscience?
I suggest the President examine the Constitution -- and perhaps peruse Federalist #10 on executive power while he is at it.
November 18, 2012
I enjoyed Gene Healy's "Cult of the Presidency." No doubt my references to it have become tedious over these last four years. But in all the right-left, conservative-libertarian, platonic-aristotelian discussion, I think it underappreciated how many of our freedom issues stem from the removal of Constitutional balance-of-power. If we did not think our presidents the leader of the free world and our dad, they would be far more limited in the rumpus they could cause.
Healy nails this in "Cult." It is an important look at the arrogation of power to the executive and is bipartisan in his disapprobation. The book details a litany of transgressors as we lost the idea of a constitutional magistrate a long time ago, but the book spends most pages thumping one President George W. Bush. I read it after Obama had been elected and laughed under my breath: "Oh. Gene, Gene...buddy you have no idea how much worse things are going to get."
Wishes do come true and the author has released an e-book update to cover the first Obama Administration. False Idol: Barack Obama and the Continuing Cult of the Presidency
Over the last few years, when people asked me if I planned to write another book, I'd demur, joking that I could just update The Cult of the Presidency every four to eight years with details on whatever fresh hell the next president visits on the country. The joke was on me, it seems. When it comes to presidential cults, Barack Obama turned out to be the gift that keeps on giving-- an irresistible opportunity to put Cult's themes in front of a new set of readers.
It remains celebrity and Congressional pusillanimity that gives our President such power -- not parchment.
"In a republican government, the legislative authority necessarily predominates," Madison wrote in Federalist 51, and he actually worried about whether the president would have sufficient power to resist congressional encroachment.
I had hoped that waving the specter of the eeevil George Bush, that I might be able to bring some of my lefty friends into the fold on this. In 2017, maybe I can.
Four stars (just 'cause much of the meat is all in first book) but it is great -- and a deal at $3.49.
June 20, 2012
Quote of the Day
Executive privilege is a vestige of Richard Nixon's desperate effort to conceal criminality in the Watergate scandal. The last thing Obama wanted to do, with the November election looming, was resort to the Nixon strategy (which, we should recall, failed in the end). And, again, if the Obama administration's story was true, they would want to release the documents that support it. -- Andrew McCarthy
January 31, 2012
The gig is up
The historical accounts of the 2012 Presidential election are already being written. From Steve McCann's 'The Republican Establishment's Strategic Blunder' in the American Thinker:
The one major accomplishment of Barack Obama has been to bring a sudden and abrupt end the people's ability to tolerate this tacitly understood game between the two major Parties.
July 12, 2011
President Obama as Sheriff of Nottingham
President Obama and the Democrats love to frame the debate over redistribution of wealth as "millionaires" versus "working folk." In their fantasy scenarios they are brave and virtuous Robin Hoods, "taking from the rich and giving to the poor."
Iain Murray's new book Stealing You Blind - How Government Fat Cats Are Getting Rich Off of You explains that a curious thing happens to much of that money on the way from one pocket to the other.
Remember when we used to call government employees “public servants”? They’re servants no more—now they’re bureaucratic masters of the universe, claiming inflated salaries (up to two times as much as private sector employees) and early retirement with unparalleled pensions and benefits. And how do they spend their time? When they’re actually working, they spin red tape and regulations that make your life harder (and their lives easier), your taxes higher, and your share of the nation’s debt unsustainable.
Robin Hood did not "take from the rich and give to the poor" but rather stood up to the rulers of a tyrannical government bent on ever greater taxation, calling them out on it in the public square. "Brave, brave sir Robin!"
June 12, 2011
Ignorant Laws Have No Excuse
I set out on the internet this morning to find support for a personal premise: The existence of unenforced laws undermines respect for those laws that are enforced. The experience caused me to recognize an unacknowledged subsequent premise: Individual liberty is enhanced in a law-abiding society. For some time now I have thought the first premise was a call to action in furtherance of the second premise but then I questioned the validity of that objective, and of the second premise itself.
Slate magazine published, in October 2007, a rather wide-ranging compendium of unenforced law discussion by Tim Wu.
He addressed the drug war, illegal immigration, copyright, polygamy and more. Wu seems to conclude that non-enforcement is good for America. Not, as I would attempt, in furtherance of greater liberty but of "the economic interests of the nation."
Immigration policy is perhaps the strongest example of the ways in which tolerated lawbreaking is used to make the legal system closer to what lies in the economic interests of the nation but cannot be achieved by rational politics. All this is why the Bush administration faces an uphill battle in the course of trying a real internal enforcement strategy.
I tend to agree with this conclusion but I attribute as cause the very American attitude of individual liberty amongst voters who won't tolerate a heavy hand against individual workers and employers. More to the point is what this does to our representative government. Since our legislatures cannot achieve rational laws our judiciaries and our executives, at both state and federal levels, exercise discretion in which laws are enforced and to what extent. This appears, at first, to be a good outcome since the forces that guide the police and the courts are those of public opinion which derive, in turn, from individuals. We effectively have 300 million citizen legislators. However, this system has (at least) two major flaws.
First is the disparate influence on the legal system from concentrated versus individual interests and the tyranny of the majority. Allowing the trial lawyers lobby, the AARP and SEIU to dictate which laws are left to wither (and which to be bolstered) is no boon to liberty.
But worse yet, the ability of government to "get" any individual on some trumped up charge whenever it is "necessary" is a hallmark of totalitarian states.
At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity--say, Mother Theresa or John Lennon.
It's one thing when government lawyers make selective prosecution into a drinking game, but quite another when used as a tool of coercion and intimidation. In the name of liberty, laws to prevent "injuring a mail bag" have no place in a just society. Liberty is enhanced when laws are obeyed, but said laws must first be not just objective and knowable but also justified in the cause of protecting individuals from others and not from themselves.
May 19, 2011
Government by Whim
I wanted to write here today that "I hereby call out Colorado Governor John Hickenlooper to apply for an Obamacare waiver for the entire state of Colorado." After all, another path to repeal, thought I, is for the entire country to be waived from the law's requirements. Needing a foundational article upon which to rest my "great idea" I found Mona Charen:
A few wags [ouch!] have suggested that the HHS grant the rest of the country a waiver and be done with it. But the implications of what Professor Richard Epstein has called "government by waiver" aren't funny. As Congress has ceded more and more power to regulatory agencies, the opportunities for abuse of power multiply. Writing in National Affairs, Epstein notes that among the companies and entities that successfully sought waivers from Obamacare's provisions were PepsiCo, Foot Locker, the Pew Charitable Trusts, many local chapters of the Teamsters, the United Food and Commercial Workers union, and numerous public-employee unions.
So it isn't just the threat of tax hikes that makes the Obama Administration such a threat to American free-market liberty; or massive deficit spending, or hostility to energy production or the subjective law of appointed judges or the proliferation of unelected "Czars" or any of the other "gangster government" ploys the administration has so quickly and expertly embraced. It is the 2000-pages of statutory "we can do what we want" called the Patient Protection and Affordability Act that makes these government bureaucrats so dangerous.
Full and complete repeal is the only answer.
May 13, 2011
Executive Power on Steroids
Richard Epstein hits one out of the park, intertwining two of my favorite topics: FDA drug approvals and arrogation of power to the Executive Branch. In so doing, he plasters the Obama Administration (okay, so three of my favorite things).
In dealing with the abuse of power, it is important to recall that each branch of government has its own defined responsibilities. On the legislative side, clear statutory commands should give fair notice to individuals, allowing them to conform their conduct to the dictates of the law. In the executive branch, the great challenge is to install managerial safeguards ensuring that the immense reservoir of discretion accorded to public officials is exercised in consistent and determinate ways. On the judicial front, it is critical to develop procedures that provide an individual with sufficient notice of charges, and an opportunity for a hearing before an impartial decision-maker prior to being subject to any criminal or civil sanctions.
It's tough but serious -- all the more devastating for its not being a partisan hit piece. A little longer than a Friday blog post, but I highly recommend a read in full.
April 12, 2011
WASHINGTON – The historic $38 billion in budget cuts resulting from at-times hostile bargaining between Congress and the Obama White House were accomplished in large part by pruning money left over from previous years, using accounting sleight of hand and going after programs President Barack Obama had targeted anyway.And I thought they were going to cut spending -- what a naif!
April 11, 2011
Libertarian Party's Senator Keeps Cap'n Trade!
Libertario Delenda Est!
Whenever Libertoids starts dishing out the famous equivalence and suggest that their irrelevant biennial temper-tantrums do no real harm, remind them of their complicity in sending Jon Tester (D-MT) to the US Senate. Tester ousted incumbent Republican Conrad Burns by 3,562 with the LP's Stan Jones collecting 10,377. Now I can hear the capital-Ls screaming about Senator Burns's many shortcomings in the field of liberty.
But Senator Tester was the 60th vote for ObamaCare®. Today, the WSJ Ed Page salutes him for at least having the honesty to block every legislative attempt to reign in the EPA on Carbon. Other Democrats participated in subterfuge to keep Executive Power at its zenith yet defend their votes back home.
But the Libertarians' man was all in:
All 13 tacitly acknowledged that the EPA rule will do economic damage because they voted to limit its breadth or delay it for two years. But then they helped to kill the one bill that had the most support and would have done the most to prevent that economic damage.
Who knows, there might be a lesson for the Tea Party in there.
March 19, 2011
I'm calling a foul on Conservative critics of the President.
Filling out his NCAA bracket when Japan is under water! Why the leader of the free world should be _____________.
I complained -- loudly -- when Candidate Obama said his nomination would mark the moment "...when the rise of the oceans began to slow and our planet began to heal." Gene Healy, call your office -- the cult of the presidency has escaped reality.
I will not double-dip and complain that the commander-in-chief plays golf or predicts basketball. Our humble, Constitutional Chief Magistrate Presidents Taft and Cleveland were criticized for golfing too much. I'd suggest that all of our presidents do the least damage on the links. A few divots can be fixed; ObamaCare?
February 24, 2011
DOMA, Madison v. Marbury, Volkh, jk
To be fair, the folks at Volkh Conspiracy are Constitutional scholars with great history of defending liberty. And I have played guitar in many bands. Yet I find myself with the President and AG Holder on this one.
In my view, the basic problem with the Obama Administration's position on the DOMA litigation is the same problem we had in the Bush Administration with its adoption of John Yoo's theories of Article II. Recall that John Yoo's theories of Article II power rested on a highly contested set of views about Article II power. By adopting a contested constitutional theory inside the Executive Branch, the Bush Administration could pursue its agenda without the restrictions that Congress had imposed. In effect, the simple act of picking a contested constitutional theory within the Executive branch gave power to the Executive Branch that none of the other branches thought the Executive Branch had (and which laws like FISA had been premised on the Administration not having). It was a power grab disguised as academic constitutional interpretation.
Orin Kerr affirms that gay rights is incomparable to wiretapping and torture, but I don't see that as the difference.
The DOJ functions as the prosecutorial arm of the Executive and is entitled to prosecutorial discretion. I submit that they are choosing not to pursue vigorous enforcement and that is clearly in their purview. Kerr's Yoo/Bush/FISA example accuses the Executive branch of enforcing laws not legislatively enacted -- that is overreach, the Obama Administration is going for under-reach. I'm fine with that (in fact I'd like to see a lot more of it).
In my mind, the comparison is not to FISA but to Angel Raich. AG Ashcroft elected to prosecute, Holder has deferred.
This post has a surfeit of canned worms to explore. I'm not sure the Bush Administration overstepped on FISA, I know there's little love for gay marriage or medicinal marijuana among the ThreeSources Cognoscenti. And I think we all oppose Executive overreach.
But I don't see it here.
August 9, 2010
That's the "hover text" as you mouse over this picture on the Reason website:
Matt Welch calls it The View of Obama from Conde Nast Tower. He quotes some Obama aides, including the always colorful locutions of Rahm Emmanuel about how Washington is broken because it won't allow the President's agenda to sail through.
You may say I'm a dreamer, but I'm not the only one. I wonder if this Administration's overreach will dampen some folks' 100+ years lust for Executive Power. Imagine separation of powers. It isn't hard to do...
June 22, 2010
Not so fast, Barack: Judge Rules Against Obama Drilling Ban
Judge Feldman noted in his decision that the Supreme Court has explained an agency rule as being arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Translation: You did ALL of these things you jackasses!
The Republic strikes back.
June 15, 2010
Mister Orwell, Call your Office!
...perhaps all circuits are busy.
Instapundit linked to this this morning. I don't know the source. But on the assumption it's true (I did read it on the Internet!), I don't know why we're not hearing more about it.
Last week, with little fanfare, among the ever deteriorating oil spill crisis, the White House quietly noted the issuance of an executive order "Establishing the National Prevention, Health Promotion, and Public Health Council", in which the president, citing the “authority vested in me as President by the Constitution and the laws of the United States of America” is now actively engaging in "lifestyle behavior modification" for American citizens that do not exhibit "healthy behavior." At least initially, the 8 main verticals of focus will include: smoking cessation; proper nutrition; appropriate exercise; mental health; behavioral health; sedentary behavior; substance-use disorder; and domestic violence screenings.
'Scuse me? What was that again? I was afraid you had said that
President Obama’s sweeping plan to enforce “lifestyle behavior modification” is chock full of open-ended target areas, especially when it comes to issues of “mental” and “behavioral” health, “proper nutrition,” “sedentary behavior,” and “appropriate exercise.” The President’s Executive Order is a blatant and forceful attempt to adjust the way Americans young and old think, behave, eat, drink and whatever else free will used to entitle our nation’s citizens to enjoy as prescribed by the Founding Fathers.
No doubt it has been carefully crafted to ensure the Executive Branch was confined to a strict, Constitutional purview.
(g) carry out such other activities as are determined appropriate by the President.
Think I'll go get another cup of coffee while I still can!
May 3, 2010
ThreeSources Poll: Obama's Katrina?
Where partisan hackery meets limited government: should ThreeSourcers blame President Obama for an insufficient response to the oil spill?
I'm going to say no. My idea of Executive Power was best expressed by Randy Newman in his song Louisiana. I'm not sure one of my favorite songwriters meant to complement one of my favorite Presidents:
President Coolidge come down on a railroad train. With a little fat man with a clipboard in his hand. President Coolidge says "Little fat man, ain't it a shame. What the river has done to this poor cracker's land?"Generally, I consider that a great response, but concede that the government has a larger role in the oil spill versus the 1927 or 2005 hurricanes.
All the same, the complaints suggest a super-sized version of executive power, do they not?
I love a whack at the President as much -- okay, maybe a lot more -- than the next guy. But I have decried the arrogation of power to the Executive and am pretty squeamish about asserting expectations here.
UPDATE: Interesting addition: John Fund says that the government is obligated by the Oil Pollution Act of 1990:
The Obama Administration has tirelessly pushed the line that it has employed every available tool to fight the Gulf oil spill from "Day One." Well, it's certainly true that every media resource is being deployed to squelch comparisons with the slow-footed 2005 Bush administration response to Hurricane Katrina.
April 11, 2010
President Taft Responds
This post should be a Review Corner. I would give five stars to President Taft for "Our Chief Magistrate and his Powers." It is a series of six lectures given at Princeton, concatenated to create a book. President Cleveland has a similar -- and also good -- one in the genre, but Taft's is Magisterial.
It is free on Google Books. I read them on my SONY eReader®, but you can download the SONY "Reader Library" software for use on a computer. I bet the good folks at Google make the text available as well. I think every ThreeSourcer would dig it. It is somehow very accessible and readable without being watered down. Our most good humored president takes an insightful look at the office after holding it, yet with the dispassion of a future Chief Justice.
He does stoop to take one political shot. And it is a response to the exact quote I shared with you a few weeks ago, He first responds to the jab I highlighted:
I may add that Mr. Roosevelt, by way of illustrating his meaning as to the differing usefulness of Presidents, divides the Presidents into two classes, and designates them as "Lincoln Presidents" and "Buchanan Presidents." In order more fully to illustrate his division of Presidents on their merits, he places himself in the Lincoln class of Presidents, and me in the Buchanan class. The identification of Mr. Roosevelt with Mr. Lincoln might otherwise have escaped notice, because there are many differences between the two, presumably superficial, which would give the impartial student of history a different impression.
The last chapter is "The Limits of Executive Power" and Taft then takes on TR's assertion that the executive branch should do anything to improve the public weal not explicitly proscribed by the Constitution:
The mainspring of such a view is that the Executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a Universal Providence and set all things right, and that anything that in his judgment will help the people he ought to do, unless he is expressly forbidden not to do it.
He moves on to President Roosevelt's plans to break the Pennsylvania coal strike and nationalize the mines. He provides approbation to TR for his actual handling of the crisis, but opprobrium for the backup plan included in his Autobiography.
Now it is perfectly evident that Mr. Roosevelt thinks he was charged with the duty, not only to suppress disorder in Pennsylvania, but to furnish coal to avoid the coal famine in New York and New England, and therefore he proposed to use the army of the United States to mine the coal which should prevent or relieve the famine. It was his avowed intention to take the coal mines out of the hands of their lawful owners and to mine the coal which belonged to them and sell it in the eastern market, against their objection, without any court proceeding of any kind and without any legal obligation on their part to work the mines at all. It was an advocacy of the higher law and his obligation to execute it which is a little startling in a constitutional republic. It is perfectly evident from his statement that it was not the maintenance of law and order in Pennsylvania and the suppression of insurrection, the only ground upon which he could intervene at all, that actuated him in what he proposed to do.
Read at least the last chapter of this short book.
UPDATE: Google link with reader
March 31, 2010
Barack Obama, Progressive
I appreciate blog friend tg's thoughtful comments in defense of our 26th President and invite everybody to read them before they fall off the page.
Shelby Steele has an interesting piece on the WSJ Ed Page today on President Obama. Steele speculates that "He is likely to be the most liberal president in American history. And, oddly, he may be a more effective liberal precisely because his liberalism is something he uses more than he believes in. As the far left constantly reminds us, he is not really a true believer. Rather liberalism is his ticket to grandiosity and to historical significance."
Presidents Andrew Jackson and Abraham Lincoln opened the door to expanded executive power and any believer in limited government and separation of powers needs to weigh this -- substantively -- against their achievements.
But I am going to draw the line from TR Progressivism to Obama Progressivism with this quote from Steele:
Of the two great societal goals—freedom and "the good"—freedom requires a conservatism, a discipline of principles over the good, limited government, and so on. No way to grandiosity here. But today's liberalism is focused on "the good" more than on freedom. And ideas of "the good" are often a license to transgress democratic principles in order to reach social justice or to achieve more equality or to lessen suffering. The great political advantage of modern liberalism is its offer of license on the one hand and moral innocence—if not superiority—on the other. Liberalism lets you force people to buy health insurance and feel morally superior as you do it. Power and innocence at the same time.
My friend is absolutely correct that much of President Obama's agenda would be anathema to President Theodore Roosevelt. But that paragraph portrays both men perfectly.
September 14, 2009
In my tour of the Presidents, I am still a dozen whiskered men away from Theodore Roosevelt.
I have promised myself and one ThreeSources friend that I will choose Theodore Rex for President #26. It is a well reviewed biography that is pretty positive to our first Progressive. Where I have previous opinions about a President, I make an effort to find a contradictory view.
However, maybe a couple of TR fans might want to consider TR, the Progressive Party, and the Transformation of American Democracy, by Sidney M. Milkis. It is reviewed in the WSJ today. Jeff Greenfield suggests that "the real story of 1912 lies in the realm of public policy. So argues Sidney M. Milkis in 'Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy.' The Progressives, he says, 'set in motion the central political events of the 20th century: the rise of direct democracy and the expansion of federal administrative power.'"
But Roosevelt's campaign as the Progressive Party's candidate went beyond reforming the political process. It was rooted in a belief that the constitutional structure of American government—with limited federal power and a judiciary striking down economic regulations as violations of "natural rights"—simply could not cope with the realities of a 20th-century industrial behemoth. (In 1905, the Supreme Court had ruled, in Lochner v. New York, that New York state could not limit the hours that bakers could work.) Only federal power, in the form of regulatory bodies and laws, TR believed, could match the power of the corporations and trusts. But Roosevelt's philosophy went further: Even from a distance of a century it is hard to imagine the most consequential Republican of his time arguing, as TR did, that "our aim should be to make this as far as possible not merely a political, but an industrial democracy."
Milkis even blames TR for Wilson, not only splitting away Taft votes but forcing the Democrats toward the New Jersey Gov away from William Jennings Bryan. No, I am not suggesting A Bryan presidency would have been that much better.
But the drive toward direct democracy, federal control, and executive branch power, was greatly accelerated in the Progressive Era and I am reluctant to give its first practitioner a free pass because he was a cool dude.
We'll discuss -- next February open?