July 16, 2014

What the Hell is Administrative Law, and Where Did it Come From?

That is the question which is, by every account, answered brilliantly in a new book by Professor Philip Hamburger of the Columbia Law School: Is Administrative Law Unlawful?

Amazon reviewer Ross Huebner wrote last month:

Professor Hamburger outlines the fact that administrative law (outside of very limited circumstances) is not only unconstitutional, but it is anti-constitutional as well. I recommend this book as a worthy legal history of administrative law and state simply that it should be in every serious scholar's library for both historical and legal purposes.

In a radio interview this morning the author explained that administrative law, essentially the rules and regulations of Administrative Branch agencies, crept into our government after its founding as a holdover from the pre-Constitutional era and do not have any justification under the Constitution. To the contrary, Article I Section 1 begins: "All legislative Powers herein granted shall be vested in a Congress of the United States..." therefore any legislative powers exercised outside of Congress are illegal.

And not just legislative, but judicial powers are wrongly exercised under color of "administrative law." Who may lay his finger on the Constitutional passage that enumerates that? Article III Section 1 begins: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." No mention of EPA or FDA that I could find.

A timely tome it doth seem to be.

Posted by JohnGalt at 3:11 PM | Comments (1)
But jk thinks:

Dothn't it.

Posted by: jk at July 16, 2014 6:46 PM

June 28, 2014

Executive Overreach

Entered a Facebook fight today. A workmate "likes" this:

boehnerandobama.jpg

So sad that people cannot separate principle from personalities. This will not likely be settled before both these men are out of their positions. It is Article I vs. Article II and -- as I mentioned on FB -- is over 100 years late.

There are those on the right afflicted as well, but I posit that the quotidian consumption of "The Daily Show" and "Colbert Report" feed the left. Laugh lines work better with politicians than principles.

Posted by John Kranz at 10:54 AM | Comments (0)

June 27, 2014

Gene Healy, Call Your Office

There is no denying that Executive Power has crept up through the years to the point that I would call it a Constitutional Crisis. But Kim Strassel brings forth fond remembrances of past Congresses who protected their purviews -- even from an Executive of their own party.

But should that president step on Congress's size 12 toes, all partisan bets were off.

Andrew Johnson was impeached by nearly two-thirds of the House for the "high crimes and misdemeanors" of violating a controversial law that the House had passed. Theodore Roosevelt's regulatory reaches were bitterly opposed by conservatives in his party. The Republican speaker, Joseph Gurney Cannon, famously complained of the Rough Rider: "That fellow at the other end of the avenue wants everything from the birth of Christ to the death of the devil." When FDR announced his court-packing plan, it was a Democrat, Henry Ashurst, who labeled it a "prelude to tyranny" and delayed the bill in the Senate for 165 days, contributing to its defeat.

This institutional cantankerousness was alive and well through the Bush era. In May 2006, the FBI raided the office of then-Democratic Rep. William Jefferson. Republican Speaker Denny Hastert and Minority Leader Nancy Pelosi issued a blistering joint statement denouncing it as a violation of the separation of powers. Republicans and Democrats spent much of the Bush years jointly attempting to force the president to give Congress more say in his wars and detention policies.


Brother jg asked when our generation's Mark Felt would show up. I'd sooner see our Sen. Howard Baker.

UPDATE: Or Johnny Walters.

Posted by John Kranz at 1:08 PM | Comments (0)

June 20, 2014

Obamagate

Rather than grandstanding about terrorist atrocities in Iraq or even a flood of undocumented alien children across our southern border, every single Republican congressman or senator should be jointly focused like a period-full-stop laser beam on the most deadly serious threat to US civil society today: The likely use of federal government power to influence the outcome of an election, and the obvious cover up that attempts to obstruct investigation of the original crime. Harry Reid's hometown newspaper says it well:

This is not a partisan witchhunt. It is an inquiry to determine whether a federal agency conspired with elected members of a political party to influence the outcome of an election. And it already screams of a cover-up.

The full editorial is loaded with winks and eye rolling over the "accidents" which befell the evidence requested by congress. On any objective scale, Watergate was a misdemeanor compared to Obamagate. The only thing about the more recent of these two is the news media's curiosity.

Posted by JohnGalt at 3:52 PM | Comments (1)
But jk thinks:

The second article of impeachment was the misuse of the IRS to punish political enemies. And Rose Mary Woods only lost 18-1/2 minutes.

Posted by: jk at June 20, 2014 5:07 PM

April 10, 2014

Thank you Senator!

Senator Harry Reid (Hypocrite-NV) vigorously defended federal funding for a Cowboy Poetry Festival in his state 3 years ago, slamming Republicans who sought to cut it from the federal budget as "mean spirited."

He might feel that move has come back to haunt him, as the manager of a ranch under siege by the Obama Administration's Bureau of Land Management for letting cattle eat desert grass, as the family has done since about 1870, seems to have benefited from the event.

"They're trying to take our stewardships,

And run us off the land that we love best.

But I think they'll find the hard way,

that we're still willing to fight for this here west.


I hope them fellers soon hump their holes

or some of us will lose our souls,

'cause killin' it ain't right

but don't expect to take this land without a fight.


The fire is ragin' once again in the western man's eyes,

and these eastern folks are gettin' thicker than flies.

We're tyin' our ropes into twelve-coil knots,

our guns are loaded and our hammers are cocked.


So you'd better help us find a solution

or pull your hats down tight and get ready for the western revolution.


-Derrel Spencer, Ranch Manager

I wonder who he would say is more "mean spirited" - Republican legislators or armed BLM agents engaged in cattle rustling?

Posted by JohnGalt at 6:26 PM | Comments (1)
But jk thinks:

A mendacious old codger from Searchlight,
Thought your tax dollars his birthright,
Koch brothers he fought,
While liberty's sons sought,
His majority's eventual twilight.

Posted by: jk at April 10, 2014 8:08 PM

February 14, 2014

And When They Came For the Journalists...

Those of you who think the press has a leftist bias will be as surprised as I was to read that, under the President Barack H. Obama Adminstration, the Federal Communications Commission is moving forward with plans to install a "wet nurse" in "radio, television, and even newspaper newsrooms" purportedly to find out if minority viewpoints are suppressed.

Pai warned that under the rationale of increasing minority representation in newsrooms, the FCC, which has the power to issue or not issue broadcasting licenses, would dispatch its "researchers" to newsrooms across America to seek their "voluntary" compliance about how news stories are decided, as well as "wade into office politics" looking for angry reporters whose story ideas were rejected as evidence of a shutout of minority views.

The surprising part of this story is not the government's, but the press industry's action. Or ... inaction.

It's an idea so fraught with potential for abuse it ought to have news agencies screaming bloody murder. The very idea of Obama hipsters showing up in newsrooms, asking questions and judging if newspapers (over which they have no jurisdiction), radio and TV are sufficiently diverse is nothing short of thought control.

But the reaction from the National Association of Broadcasters was mealy-mouthed. The FCC "should reconsider" "qualitative" sections of its study, it wrote.

The FCC now says it will be "closely reviewing the proposed research design to determine if an alternative approach is merited," as a result of Pai's warning. Adweek actually reported that as a "retreat."

Perhaps the powers that be in the news industry don't yet realize that by "minority views" the Administration intends to empower those who might defend personal liberty and voluntary trade in a free market?

HAHAHA!

HAHAHAHAHAHAHA!

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

UPDATE: Added the link to the wet nurse clip, as I had originally intended.

Posted by JohnGalt at 2:42 PM | Comments (2)
But jk thinks:

I'm picturing the guy who gets parked at the Rearden plant by the State Science Institute.

In tandem with the smidgeon of an IRS scandal, this kind of stuff scares me.

Posted by: jk at February 14, 2014 5:06 PM
But johngalt thinks:

Me too. All of that racous laughter was of the nervous variety. You know, like "Hey look, our ship is sinking. Isn't that hilarious!!"

Posted by: johngalt at February 14, 2014 5:23 PM

December 30, 2013

Those Were the Days

An interview with Barack Obama, wherein he expresses great concern for Executive Power and deference to the Constitution. From 2007.

Hat-tip: @slone

UPDATE: The Internet Segue Machine™ suggests a delicate pairing of this interview with Ilya Somin's "President Obama's Top 10 Constitutional Violations Of 2013."

Unfortunately, the president fomented this upswing in civic interest not by talking up the constitutional aspects of his policy agenda, but by blatantly violating the strictures of our founding document. And he's been most frustrated with the separation of powers, which doesn't allow him to "fundamentally transform" the country without congressional acquiescence.

But that hasn't stopped him. In its first term, the Administration launched a "We Can't Wait" initiative, with senior aide Dan Pfeiffer explaining that "when Congress won't act, this president will." And earlier this year, President Obama said in announcing his new economic plans that "I will not allow gridlock, or inaction, or willful indifference to get in our way."

Posted by John Kranz at 11:17 AM | Comments (0)

October 7, 2013

Steyn: That Which Shall Not Be Discussed

John Stossel took a peek into Nancy Pelosi's "bare" cupboard last night to see if she was correct in saying there is nothing left to cut. Brilliantly, he placed Social Security, Medicare and military spending on top of the cupboard since "those are so big they don't even fit in the cupboard." Mark Steyn takes on the same issue today saying, Too Much of the Federal Government Can't Be Shut Down.

"Mandatory spending" (Social Security, Medicare et al.) is authorized in perpetuity -- or, at any rate, until total societal collapse. If you throw in the interest payments on the debt, that means two-thirds of the federal budget is beyond the control of Congress' so-called federal budget process.

That's why you're reading government "shutdown" stories about the PandaCam at the Washington Zoo and the First Lady's ghost-Tweeters being furloughed.

He segues from there to what passes for a spending prioritization process in the capitol of our national, nee federal, government.

Pace Sen. Reid, Republican proposals to allocate spending through targeted, mere multi-billion-dollar appropriations is not only not "irresponsible" but, in fact, a vast improvement over the "continuing resolution": To modify Lord Acton, power corrupts, but continuing power corrupts continually.

America has no budget process. That's why it's the brokest nation in history. So a budgeting process that can't control the budget in a legislature that can't legislate leads to a government shutdown that shuts down open areas of grassland and the unmanned boat launch on the Bighorn River in Montana.

I've been Tweeting and Facebooking that we're witnessing day whatever-it-is of "Essential Government." In reality, what's still steaming ahead full is well beyond what is essential.

Posted by JohnGalt at 2:51 PM | Comments (1)
But nanobrewer thinks:

How's about we put all the mandatory items in Al Gore's lockbox?

Posted by: nanobrewer at October 8, 2013 12:21 AM

July 9, 2013

Quote of the Day

President Obama's decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter--the limits of executive power--has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689--the most important precursor to the U.S. Constitution--declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal." -- Michael McConnell

Posted by John Kranz at 1:20 PM | Comments (1)
But johngalt thinks:

Rube! :)

"How" or "whether"... tomato, tomahto. Very well, I use my substantial discretion to proclaim that I shall enforce my law using the 5-second rule, except that 5-seconds shall, for the purposes of Obamacare, be 12-months... for now.

Posted by: johngalt at July 9, 2013 2:31 PM

July 6, 2013

Gimme that old time [Constitutional] Religion

Hmm, am I ahead on my reading? Or behind in my reviewing? I seem to have quite a queue lined up. Yet I cannot wait to share a couple quotes from Steven Hayward's The Politically Incorrect Guide to the Presidents: From Wilson to Obama. Like me (and Gene Healy), Hayward longs for the day of Presidents' behaving as chief magistrates and defenders of the Constitution with a lot less "Leader of the Free World." As late as Benjamin Harrison, presidents refused to speak on current affairs and legislation "You ask for a speech. It is not very easy to know what one can talk about on such an occasion as this. Those topics which are most familiar to me, because I am brought in daily contact with them, namely public affairs, are in some measure forbidden to me. . ."

And that, in an enjoyable early chapter, highlights the problem: post TR they all talk too damn much. Consider the current occupant of the White House while reading an Article of Impeachment against the 17th:

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and the dignity and propriety thereof . . . did . . . make and deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States. . . . Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming of the Chief Magistrate of the United States, by means whereof . . . Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens.

Hayward, Steven F. (2012-02-13). (The Politically Incorrect Guides) (Kindle Locations 708-713). Regnery Publishing. Kindle Edition.


Oh dearie me. He also gets in a quote from George Will:
The Strong, Silent Type

"Madison took the country into war, the British burned down his house, and he still didn't give a speech."

Posted by John Kranz at 11:11 AM | Comments (2)
But johngalt thinks:

Just imagine if old Andrew had the ability to appear on a sycophantic television broadcast 24 hours a day. And a teleprompter. That would have been an even greater disgrace to the high office of the President.

Posted by: johngalt at July 7, 2013 10:37 AM
But jk thinks:

"scandalous harangues..."

Posted by: jk at July 7, 2013 2:16 PM

January 14, 2013

Examine your Conscience?

Really?

obama_guns_ap.gif

I suggest the President examine the Constitution -- and perhaps peruse Federalist #10 on executive power while he is at it.

Posted by John Kranz at 1:37 PM | Comments (0)

November 18, 2012

Review Corner

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.
[..]
Their powers are anything but equal: Congress can remove executive officers, up to and including the president. Congress decides on the structure of the executive branch; it can create or destroy agencies and departments and regulate them through Article I, Section 8' s "sweeping clause." The president has no comparable powers over Congress. There's a reason the Capitol Dome dominates the D.C. landscape, towering over the comparatively modest presidential residence down the street. The capital's design mirrors the constitutional architecture, in which Congress, not the executive, was supposed to be the prime mover in setting national policy.
[...]
"My classes think I am trying to be funny," [Constitutional Professor Charles] Black continued, "when I say that, by simple majorities," Congress could shrink the White House staff to one secretary and that with a two-thirds vote, "Congress could put the White House up at auction." But Professor Black wasn't kidding: Congress has the power to do all that if it so decides. And if Congress can sell the White House, surely it can defund illegal wars and rein in a runaway bureaucracy.

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.

Posted by John Kranz at 11:28 AM | Comments (0)

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
Posted by John Kranz at 4:39 PM | Comments (0)

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.

(...)

All the other challengers were easily eliminated or made irrelevant, as they did not have the money or experience of knowing how the game is played, but Newt refused to just slink away. Never has the Republican Establishment trained its guns on any one candidate in such an unbridled and unrestrained way.

Perhaps Newt Gingrich or Rick Santorum or Ron Paul are not the right candidates to face Barack Obama, but that decision should be up to the voters. While it maybe the role of the conservative pundit class to proffer their opinions of the various candidates, it is not the role of the overall Establishment to so marginalize candidates that there appears to be only one viable alternative.

The Establishment could not have made a more strategic blunder. They will, in all likelihood, succeed in securing the nomination for Mitt Romney, but the damage they have inflicted upon themselves is approaching irreversible. The public now sees the length to which the Establishment will go to make certain their hand-picked candidate is chosen regardless of the dire circumstances facing the nation.

Posted by JohnGalt at 3:28 PM | Comments (5)
But Boulder Refugee thinks:

I dunno. This really smacks of conspiracy theory. My assessment of conspiracies is that the theorists give way to much credit for intelligence to the conspirators.

It reminds me of when Gore and RFK Jr. blamed Bush for Katrina. Sure - a guy they claim to be to stupid to read a book somehow has God-like control over the weather.

Similarly here, the "GOP establishment" is too incompetant to organize a campaign, but somehow as the skills to do a Jedi mind-trick on the electorate.

Posted by: Boulder Refugee at February 1, 2012 11:58 AM
But johngalt thinks:

I'm confused. What's the "conspiracy theory?" That negative campaign ads work or that "an amalgam of like-minded groups with one common interest: control of the government purse-strings" dominates national party politics?

Posted by: johngalt at February 1, 2012 2:52 PM
But Boulder Refugee thinks:

JG, you're a friend, so I'm happy to un-confuse you. :-)

First of all, the definition of "The Establishment": "an amalgam of like-minded groups with one common interest: control of the government purse-strings." Who in the polical debate does that NOT describe?!? We at Three Sources would love to control the government purse strings, if for no other reason than to tie a knot in them. Indeed, it is the disagreement over government gathering and use of funds that animates most of us.

Second, the idea that dozens or hundreds of prominant politicians - who can rarely agree on lunch - got together and derived a consensus and a grand strategy for electing a particular candidate seems highly implausible. The fact that a number of prominant politicians support a particular candidate does not mean that they got together and decided to do so, though no doubt many of the talk regularly.

Finally, "...it appears that those who are nominally identified as the "Republican Establishment" are doing all they can to alienate the vast majority of the current base of the Party." Seriously?? The party appartchik is sitting around dreaming up ways to piss off the "vast majority" of its base? Again, implausible. Moreover, how can they alienate the "vast majority" of the base and simultaneous convince them to vote for their chosen candidate?

This a sour-grapes theory to explain why Newt is losing to Romney. The truth is that while Romney may be deeply flawed, Newt is deeply, deeply flawed. Finally, just because a bunch of party insiders don't believe that Newt is electable doesn't mean it's not true.

Posted by: Boulder Refugee at February 1, 2012 4:26 PM
But nanobrewer thinks:

What he said. BR, that is...

Posted by: nanobrewer at February 1, 2012 11:43 PM
But nanobrewer thinks:

"Republican Establishment trained its guns"
in non-partisan, unelectioneering, bomb-catching plainspeak, people established (aka, whose opinions are sometimes sought) within the republican party exercised their right to free speech and called a Newt... well, whatever they thought he was.

The idea of Ann Coulter colluding with anyone behind a closed door is silly... until ... it becomes oddly disturbing >:-0

I caught a bit of the ads and speech from the FL campaign. I didn't find the selected Romney ad objectionable (and you'd think they'd picked a nasty one). A bit harsh perhaps, but way less harsh than Newt calling anyone else a Washington insider: that takes gall and a forked tongue well-used to the taste of bile.

Gall don't necessarily impress independent voters. I already can't stand listening to His Whineyness anymore.

P.S.: the prohibition on posting comments still afflicts NB; but only with FireFox.

Posted by: nanobrewer at February 1, 2012 11:56 PM

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.

In Stealing You Blind, you’ll discover:

- Why the wealthiest congressional district in America is in a recession-proof suburb of Washington, D.C.

- How the Department of Transportation went from having one employee making $170,000 or more to having nearly 1,700 making that much—during the peak of the recession

- Why even FDR thought federal workers shouldn’t be allowed to unionize

- How state, local, and federal bankruptcy could be coming your way thanks to public employee union greed

- Why bureaucrats regard taxpayers as sheep to be shorn—and how they do it

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!"

Posted by JohnGalt at 3:03 PM | Comments (0)

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 would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. (...) The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."

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.

Posted by JohnGalt at 12:47 PM | Comments (3)
But jk thinks:

Three Words: Bastiat, The Law.

Looking the other way at drugs invites discrimination against the statistically minority poor. That has been one of my big objections. Rightly or wrongly, minority youths feel that they are hassled by law enforcement, increasingly under the rubric of suspected drug possession.

Taken to its logical conclusion, unenforced law is no law, but rather rule by police and prosecutors.

Excellent post. The undermining of voluntary enforcement is a powerful point as well.

Posted by: jk at June 12, 2011 1:32 PM
But johngalt thinks:

Love the link. Six stars! If you've posted it before I was delinquent in following it.

"The Desire to Rule Over Others" is a good reply to your current FB tilt.

Posted by: johngalt at June 12, 2011 3:19 PM
But gd thinks:

Agreed. Great post and response. Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.

Posted by: gd at June 12, 2011 9:31 PM

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.

But, asks Epstein, "(W)hat about employers who do not have the resources to navigate the waiver process? What about those lacking the political connections to make their concerns heard in Washington? And what happens when the one-year waivers run out? Will they be renewed? Under what conditions? And what rights will insurers have to waive then in order to avoid going out of business?"

The world of Obamacare is no place for the little guy.

The danger of waiver power is that it will be used differentially, giving one private entity a competitive advantage over another. The company denied a waiver can bring suit -- but litigation is expensive and slow.

Additionally, companies may fear government retaliation: "It is no accident that it is often public-interest groups or patient groups that take on the FDA, for instance. It is simply too risky for a pharmaceutical company with multiple applications before the agency to challenge one action if it is vulnerable to a government-induced slowdown on another," writes Epstein.

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.

Posted by JohnGalt at 2:56 PM | Comments (0)

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.

One of my constant concerns with the Obama administration is that its vision of executive power means that it has not recognized the need to rein in its discretion. Quite the contrary, in a variety of areas it seems only too eager to use its discretion to maximum advantage, often to support its own political agenda. That is the chief charge against the way Obama's National Labor Relations Board has instituted litigation against The Boeing Company for imagined unfair labor practices when the company decided to open up its new assembly plants in management-friendly South Carolina.

That same tendency toward mischief has been revealed in two of its other recent actions, each of which sheds light on the risks of the abuse of discretion. I speak here of criminal punishment for off-label drug uses and mandatory disclosures of campaign contributions by prospective government contractors.


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.

Posted by John Kranz at 3:09 PM | Comments (0)

April 12, 2011

Never Mind

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!
Posted by John Kranz at 5:05 PM | Comments (4)
But Boulder Refugee thinks:

The Refugee is perhaps a bit more optimistic than his blog brethren. Here's the way he looks at it:

- Had the Democrats passed a budget for FY2011, it likely would have been ~$80 billion more than what the Republicans passed. We're money ahead by any scorecard, even if it is not spending what was previously allocated.
- Under normal budgeting, the Dems would ask for an 8% increase and the Republicans would be trying to hold the line at "only" 3% - and vilified for that.
- When the likes of E.J. Dionne wail about the demise of the progessive agenda, we're doing something right.

The remainder of FY2011 is penny-ante stuff. The real battle is over the debt ceiling and 2012. We won't get all we want - that's nature of Washington - but a reduction in the real size of government, and not just the rate of growth, is a huge win.

The greater worry is: When the crisis is over, are we back to business as usual or have we found a new religion? That's the ultimate test of success or failure.

Posted by: Boulder Refugee at April 12, 2011 5:38 PM
But jk thinks:

Agreed up and down the line. And for the record I am pretty optimistic.

Yet it was disturbing to read the headline "Budget tricks helped Obama save programs from cuts." It seemed to negate the results of a lengthy contretemps. More importantly, it seems an abuse of executive power. I don't think Madison contemplated the President funging money around to fund priorities that do not match Congress'.

Posted by: jk at April 12, 2011 6:07 PM
But johngalt thinks:

As you suggested, "Captain Renault, call your office."

Posted by: johngalt at April 12, 2011 7:18 PM
But jk thinks:

Taranto nails it: The analogy that occurred to us was to finding money under the cushions of a couch. So that's what Obama meant by "change."

Posted by: jk at April 13, 2011 1:00 PM

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.

We have far more respect for Jon Tester, the Montana Democrat who is running for re-election in 2012 and voted against all four bills to limit the EPA. Those votes may hurt him next year, but at least he didn't join the cynics. As for the rest, they are today's reason to hate politics.


Who knows, there might be a lesson for the Tea Party in there.

Posted by John Kranz at 4:34 PM | Comments (1)
But johngalt thinks:

This is a tailor-made example of Ayn Rand's dictum: "There are two sides to every issue. One is right and the other is wrong, but the middle is always evil." Montana's Mr. Tester gets credit here for being merely wrong and not evil.

Rand is routinely criticized for her use of inflammatory words like evil, sacrifice and selfishness. They are inflammatory only to those who wish to evade the full meaning of what she describes. In this case the "cynics" (I'll call them duplicitous) vote for shackles on our economy and tell their constituents "we got your back in Washington." That, friends, is evil.

Posted by: johngalt at April 11, 2011 7:51 PM

March 19, 2011

Go Jayhawks!

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?

Posted by John Kranz at 11:38 AM | Comments (5)
But johngalt thinks:

Damn! And there I thought you were going to tell us that upsets had already blown up Obama's bracket picks!

Posted by: johngalt at March 20, 2011 12:42 PM
But jk thinks:

As soon as the UNC(olorado) Bears were out, we lost interest... Sorry, Silence et al, I am just missing the College Hoops gene.

Condolences to Brother BR. His DU Pioneers took the WCHA championship game into double overtime before succumbing to the Fighting Sioux of North Dakota. One of the best games I have ever seen.

Posted by: jk at March 20, 2011 1:36 PM
But johngalt thinks:

I don't believe college hoops fandom is a gene so much as school spirit. Alums of perrenial hoops powers are impervious to avoiding its charms.

Colorado schools CSU and UNC were both invited to the "big dance" but both also were eliminated in their first game. Colorado's Golden Buffs, a basketball wasteland since the Chauncey Billups heyday, were snubbed by the NCAA tourney despite taking Kansas, President Obama's pick to win it all, to the wire in the Big-12 championship losing by just 8.

The dejected Buffs were, in my opinion, done a favor as they've now advanced to the quarter-finals in the NIT and with a win Tuesday in Boulder will go to the semis at Madison Square Garden in New York. As the 1 seed in their bracket they were odds-on favorite for the semis with a good chance to take the crown.

When your alma mater has no history of hoops tourneydom it's hard to take interest. When they're in the mix it makes all the difference. And with new head coach Tad Boyle CU fans are optimistic about a regular post-season presence in the future.

Go Buffs!

Posted by: johngalt at March 20, 2011 2:44 PM
But Boulder Refugee thinks:

@JK: Shhhh! I'm still in mourning.

Actually, not so much. It was a great game and a classic, featuring both goalies standing on their heads in OT. DU had the best of them for most of overtime but could not find the back of the net, getting robbed on some good chances.

All three Colorado Division I hockey programs make it to the NCAA tournament (DU, Air Force and Colorado College). Ironically, DU got placed in the same bracket as North Dakota, so we'll likely see each other again in order to get to the Frozen Four.

Posted by: Boulder Refugee at March 21, 2011 5:16 PM
But Everyday Economist thinks:

As I have explained before, March Madness does not reduce productivity. Shameless self-promotion:

http://www.usatoday.com/money/workplace/2007-03-16-march-madness-usat_N.htm

Posted by: Everyday Economist at March 22, 2011 1:48 PM

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.

Posted by John Kranz at 10:38 AM | Comments (10)
But jk thinks:

So ... that's TWO ThreeSourcers against the Constitution...

This started out on Facebook for me, as I "liked" a post by a (rhymes with "loon-sat") former colleague of mine. I publicly considered rescinding when I saw the Kerr piece and considered it as Executive overreach. I have read a pile of good commentary on it today, CATO has a nice piece, but none has supported my prosecutorial discretion view (except brother jg's stirring defense).

I feel a bit out on the limb as well. But I am a huge advocate for prosecutorial discretion and see no reason why it does not extend to the AG.

Posted by: jk at February 24, 2011 3:29 PM
But Boulder Refugee thinks:

@JG: Mondo heh! Good line.

Nevertheless, there is nothing more constitutionally fundamental than the separation of powers: Congress makes the laws, the Executive enforces the laws and the Court interprets the laws. There's no enforce-'em-but-only-if-you-like-'em clause.

Imagine if we had a "Department of Peace" president who decided to defund DoD by refusing to authorize payment through the Treasury. After all, "Show me the clause that says I have to fund the military."

Hoping there is a pile of leaves under that branch.

Posted by: Boulder Refugee at February 24, 2011 4:20 PM
But Boulder Refugee thinks:

@JK: The principle of prosecutorial discretion applies to whether or not the evidence supports the charge, if there were mitigating circumstances or if the government erred in the case. It DOES NOT apply as to which laws to enforce and which to ignore. Imagine, we get a corrupt prosecutor who decides graft is OK. Or a fundamentalist Muslim who thinks that honor killing is OK. Still on board for prosecutorial discretion?

Posted by: Boulder Refugee at February 24, 2011 4:24 PM
But Boulder Refugee thinks:

Here's a real world example: AG Holder declined to prosecute New Black Panthers in a case of voter intimidation because the victims were white. Is race preferences a valid reason for prosecutorial discretion? (Bull Conner just stirred in his grave.)

Do we want to live in a society where laws are applied based on the whim or political leanings of the prosecutor?

Posted by: Boulder Refugee at February 24, 2011 4:47 PM
But johngalt thinks:

Yes, separation of powers is a bedrock principle of the Constitution. But again, the powers are limited and not mandated.

You still haven't laid that finger...

But taking your other arguments, the principle of prosecutorial discretion centers around the word "discretion." The only stipulation on said discretion is "to prosecute or not to prosecute." The reasons for choosing one or the other rest upon the prosecutor's moral judgement. And this is as it should be. As a counter example consider the recent phenomenon of "zero tolerance policies" where administrator's are not free to use any discretion.

I find it sadly ironic that you use the Holder Justice department's refusal to prosecute the New Black Panthers defendants as an example of your point that the administration has a "Constitutional obligation." Since when has this administration cared a whit about that founding document? Of course I would prefer that Obama's justice department applied the law equally to everybody, but I'm not going to hold my breath waiting for them to realize, "Oh wait, the Constitution says we have to." The voters, on the other hand...

2012. Tick - tock - tick -tock.

Posted by: johngalt at February 24, 2011 5:20 PM
But Boulder Refugee thinks:

JG, if you want to put your finger on it, pull out your copy of the Constitution, set it on the desk and place your digit of choice thereupon; it's a core principle of the whole damn thing.

The idea that each administration gets to select which laws it wants to enforce and which it wants to ignore upon taking office is crazy talk - the result would anarcho-democracy, if that's possible. Somewhere, Perry is smiling.

Posted by: Boulder Refugee at February 24, 2011 7:33 PM

August 9, 2010

Words Fail

That's the "hover text" as you mouse over this picture on the Reason website:

VFobamaGulliver.jpg

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...

Posted by John Kranz at 11:35 AM | Comments (0)

June 22, 2010

Judicial Slap-Down

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."

"That rationale resonates in this dispute," Judge Feldman wrote in his decision.

Translation: You did ALL of these things you jackasses!

The Republic strikes back.

Posted by JohnGalt at 3:57 PM | Comments (5)
But jk thinks:

Huzzah for Judge Feldman and huzzah for tripartite government!

Larry Kudlow mentioned the injunction last night but I was not at all optimistic.

Makes one proud.

Posted by: jk at June 22, 2010 5:02 PM
But Boulder Refugee thinks:

Aw, you guys are missing the point on this one. The judge saved the Obama Administration from itself. Hizzoner took an ecological disaster and expanded it to an economic disaster as well. Had the judge not made this ruling, Obama & Co. would have held the bag for the whole catastrophe. Now, Obama has the political cover with his Leftist base, but won't suffer the consequences of the decision. Somewhere Barry and Michele are fist-bumping.

Posted by: Boulder Refugee at June 22, 2010 7:11 PM
But johngalt thinks:

No. I think not. This Reagan-appointed judge made an objective reading of the law and concluded that the administrative branch can not "arbitrarily and capriciously" deem a legal business to be illegal, even temporarily.

Without rulings like this Barack Obama and Hugo Chavez would be fist-bumping.

Posted by: johngalt at June 22, 2010 7:32 PM
But Boulder Refugee thinks:

Don't get me wrong, I think it was the right decision as a matter of law. But, I don't think that you can deny that the judge saved Obama from himself, politically.

Posted by: Boulder Refugee at June 22, 2010 8:05 PM
But jk thinks:

President Obama has a plan: he's going to put fifteen judges on teh Fifth Ciruit in time for the appeal.

Posted by: jk at June 23, 2010 11:03 AM

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!

Posted by John Kranz at 3:27 PM | Comments (2)
But T. Greer thinks:

It is on the White House website. This is real.

Posted by: T. Greer at June 15, 2010 6:52 PM
But johngalt thinks:

No, I don't think so. As Dr. Simon Pritchett taught us, "We can never be completely sure of anything. It has been scientifically proven, beyond any doubt." There's no more reason to believe this White House pronouncement is true than to believe that anything can ever be true.

Posted by: johngalt at June 17, 2010 3:23 PM

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.

But as for having actual oil-spill fighting technology on hand before the crisis, as the Oil Pollution Act of 1990 requires, the administration was clearly caught unprepared.

After the Transocean rig blew up two weeks ago, it turns out the federal government didn't have a single fire boom on hand in the Gulf to enable a controlled burn of the oil slick, according to The Press-Register of Mobile, Alabama. Instead, the government quickly purchased the only fire boom that an Illinois-based manufacturer had in stock, and then asked the company to call its customers around the world to see if the U.S. government could borrow their booms.


Posted by John Kranz at 6:45 PM | Comments (4)
But Lisa M thinks:

jk, I have to agree with you on this one in prinicple, however:

The left used Hurricane Katrina to destroy President Bush. It was patently unfair on just about every level. And mostly it was unfair precisely because the Federal Government is too bloated, large, lethargic, incompetent and inefficient to act nimbly in a natural disaster situation where time is of the essence. As we all know here, localities are more nimble and better equipped to handle these situations.

With an eye toward our friends on the left who believe central planning and a benevolent, all-powerful federal government is the solution to every problem, this oil spill is a perfect teachable moment for small government principles. We should not squander it by backing off on pointing out the Administration's completely incompetent response to this crisis, not in spite of our beliefs that big government is a problem, but precisely BECAUSE of those beliefs.

Posted by: Lisa M at May 3, 2010 9:42 PM
But jk thinks:

Yeahr-but-no-but... (Any "Little Britain" fans out there?)

You make a principled stand of "see, this proved we should not rely on government." I like that. Part me of me loves the idea of revenge: "Obama doesn't like Southern People!"

But there is an implicit expectation of executive power in any complaint. And even if you make it clear, others will not, and those summarizing your arguments will not, and in the end we'll get a clamor for more power as the next President says "I'm not going to be undone by a disaster -- I will federalize the National Guard on the first raindrop.

So I think we play this cool and avoid anything that can be seen as attacking President Obama for being too much like President Coolidge.

Posted by: jk at May 4, 2010 1:03 PM
But T. Greer thinks:

Yeah, I don't see it. The way most folks on the left are taking it goes something like this:

See, this is what happens when you let companies fight federal regulators. And look at the Republicans now! Jindal, and co. talk about small government, but when push comes to shove they don't stick to small government principles.

That is the ruling narrative, and it will take a bit to dislodge it - much less shift the blame to Obama.

Posted by: T. Greer at May 5, 2010 3:48 AM
But Lisa M thinks:

A commenter to Daniel Foster on The Corner today:

"The Gulf oil spill reminds me of the financial collapse. Again we see that it is not the regulations that is a problem but the regulators — the flawed, fallen humans that man the bureaucracies. There is a natural limit to what regulations, and government, can do — us. As always, humility would be the appropriate response, but instead we'll get instead Washington hubris."

Posted by: Lisa M at May 5, 2010 8:46 PM

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.

It suggests a story which a friend of mine told of his little daughter Mary. As he came walking home after a business day, she ran out from the house to greet him, all aglow with the importance of what she wished to tell him. She said, "Papa, I am the best scholar in the class." The father's heart throbbed with pleasure as he inquired, "Why, Mary, you surprise me. When did the teacher tell you ? This afternoon?" "Oh, no," Mary's reply was, "the teacher didn't tell me — I just noticed it myself."


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

Posted by John Kranz at 10:40 AM | Comments (2)
But Perry Eidelbus thinks:

Taft was a lot more astute than I ever gave him credit for. The comparison to Lincoln is appropriate on the only scale that matters: how much is someone for liberty? Honest Abe centralized power not just at the federal level, but at the federal executive level: suspension of the writ of habeas corpus (allowing him to jail 300 newspaper editors for the crime of disagreeing with him), the first draft, the first income tax.

Even for those who believe limited government is a necessity, that whole thing about "The powers delegated by the proposed Constitution to the federal government are few and defined" started fading two centuries ago. Much went out the window starting in 1861.

Posted by: Perry Eidelbus at April 11, 2010 5:24 PM
But jk thinks:

There's a section where he goes deeper into Lincoln. Taft was prepared, if not to look away, to give wide latitude to President Lincoln based on the severity of what he was facing. He compares this rather unfavorably to TR's being ready to take over the mines,

Posted by: jk at April 12, 2010 10:00 AM

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.

Posted by John Kranz at 12:20 PM | Comments (1)
But johngalt thinks:

And if Obama Progressivism isn't defeated some other president, probably sooner than 72 years hence, will pursue an agenda that makes Obama look like Dwight D. Eisenhower.

Posted by: johngalt at March 31, 2010 3:23 PM

September 14, 2009

President TR

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?

Posted by John Kranz at 10:30 AM | Comments (0)