“The Presidency Comes With Executive Power, Deal With It”: Obama’s Just Doing What He’s Empowered To Do
In his State of the Union address, President Barack Obama vowed to act on his own if Congress did not do its part. Republicans duly took the bait. “We don’t have a monarchy in this country,” said Representative Steve Scalise of Louisiana. “The abuse of power by the administration has only become more brazen,” said Senator Ted Cruz.
Obama has unsheathed the sword of executive power, and yet rather than use it to smite his foes, he seems intent on clipping hedges. He says he will raise the minimum wage for a few thousand employees of federal contractors, tinker with the pension system, trim red tape, cajole business leaders to fund pre-kindergarten education, and do something unspecified to help stop gun violence.
Obama begged Congress for help far more often than he vowed to go it alone. Obama’s significant acts of executive power—the Libya intervention, the refusal to defend DOMA before the Supreme Court, non-enforcement of the immigration law against certain groups, climate regulation, NSA surveillance, recess appointments, executive privilege, and so on—lie in the past.
So we have a paradox. In his first term, Obama humbly beseeched Congress for help and sang the virtues of bipartisanship while resorting to unilateral action whenever he needed to. Today, he announces his defiance of Congress yet seems uninterested in using his newly acknowledged executive powers to, for example, shut Guantanamo Bay or raise the debt ceiling on his own.
Be that as it may, it is worth understanding what is at stake in these debates. We all learned in school that the founders feared executive power and so gave policy-making authority to Congress. In fact, the founders feared a too-powerful Congress as well, and they sought to create a strong executive. But the idea that Congress makes law and the president executes it—and any deviation from this pattern is tyranny—is burned into our political culture.
This system of separation of powers was cumbersome from the start. The country did well in its first few decades probably because state governments led the way, and state government structure was far less rigid than federal structure, which finally collapsed with the Civil War. When the communications and transportation revolutions created national markets and new opportunities and threats in foreign relations, it was finally clear that the federal separation-of-powers system could not manage policy at a national level.
The problem was that Congress was an enormously clumsy institution. Its numerous members fiercely advanced their deeply parochial interests. Policies of great importance for one section of the country, or one group of people, could not be embodied in legislation unless logrolling could be arranged, which was slow, difficult, and vulnerable to corruption. As a public, deliberative body, Congress could not react swiftly to changing events, nor act secretly when secrecy was called for.
No one held a constitutional convention to replace the eighteenth-century constitution with a twentieth-century one. Instead, political elites acting through the party system adjusted the government structure on their own. Congress created gigantic regulatory agencies and tasked the president to lead them. Congress also acquiesced as presidents asserted authority over foreign policy. The Supreme Court initially balked at the legislative delegations but eventually was bullied into submission; it hardly ever objected to the president’s dominance over foreign affairs.
This was not a smooth process. The rise of executive power sometimes hurt important interests and always rubbed against the republican sensibilities that Americans inherited from the founders. From time to time, Congress reaped political benefits from thwarting the president. But today Congress reacts rather than leads. It investigates allegations of corruption in the executive branch. It holds hearings to torment executive officials. It certainly doesn’t give the executive the budget he always wants, or pass every new law that he believes that he needs. But existing laws and customs almost always give the president the power he needs to govern. And when they don’t, Congress will sooner or later give him the power he wants. Witness the Dodd-Frank Act and the Affordable Care Act—two massive expansions of executive power.
In monarchies, the official position was that the king made policy but everyone understood that his ministers did. In our system, the official story is that Congress makes policy and the president implements it—such is the inertia of history. But the reality is that the president both makes policy and implements it, subject to vague parameters set down by Congress and to its carping from the sidelines. Presidents can defy the official story and assert the reality if they want. That is what the George W. Bush administration did, to its eventual sorrow. In hindsight, the broad assertions of executive power by Bush administration lawyers in signing statements, executive orders, and secret memos were naïve. They described, with only some exaggeration, the actual workings of the government, but their account conflicted with the official narrative and thus played into the hands of critics, who could invoke tyranny, dictatorship, and that old standby, the “imperial presidency.”
Democratic presidents have been shrewder. Bill Clinton and Obama have been just as muscular in their use of executive power as Ronald Reagan and Bush, but they resisted the temptation to brandish the orb and scepter. Whereas Republican presidents cite their constitutional powers as often as they can, Democratic presidents avoid doing so except as a last resort, preferring instead to rely on statutes, torturing them when necessary to extract the needed interpretation. Thus did Obama’s lawyers claim that the military intervention in Libya did not violate the War Powers Act because the U.S. bombing campaign did not amount to “hostilities” (the word in the statute). A more honest legal theory—one that does not require such a strained interpretation of a word—is that the War Powers Act infringes on the president’s military powers, but a theory like that would have provoked howls of protest.
In most cases, lawyers do not need to resort to such measures because Congress has already granted authority. The president’s power to raise the minimum wage comes from the Federal Property and Administrative Services Act of 1949, which, in typically broad language, permits the president to set contract terms with federal contractors so as to promote “efficiency.” Far from being a bold assertion of executive power, this is the type of humdrum presidential action that takes place every day.
Congress gave the president the power to determine contract terms because Congress did not want to—practically speaking could not—negotiate those terms itself every time the U.S. government entered a contract. This principle explains why Congress gives the executive branch enormous discretion to determine health, education, environmental, and financial policy. Congress directed the financial regulators to implement the Volcker Rule, but it would be entirely up to those regulators to make the rule meaningful or toothless. Nor can Congress block Obama’s decision to effectively implement the Dream Act—which was not passed by Congress—by not enforcing immigration laws against those who would have benefited from the act.
Meanwhile, the founders’ anxieties about executive tyranny have proven erroneous. The president is kept in check by elections, the party system, the press, popular opinion, courts, a political culture that is deeply suspicious of his motives, term limits, and the sheer vastness of the bureaucracy which he can only barely control. He does not always do the right thing, of course, but presidents generally govern from the middle of the political spectrum.
Obama’s assertion of unilateral executive authority is just routine stuff. He follows in the footsteps of his predecessors on a path set out by Congress. And well should he. If you want a functioning government—one that protects citizens from criminals, terrorists, the climatic effects of greenhouse gas emissions, poor health, financial manias, and the like—then you want a government led by the president.
By: Eric Posner, The New Republic, February 3, 2014
“In The Dark By Choice”: Christie Still Unsure About Traffic Study
As Rachel reported on the show last night, there were quite a few developments late yesterday in New Jersey Gov. Chris Christie’s (R) bridge scandal, including the governor himself answering questions on the controversy for the first time in weeks.
Indeed, one of the more striking moments last night came when Christie, appearing on a local radio show, stuck to a position that’s literally hard to believe.
CHRISTIE: [A]s I said at the time of January 9th when I did my press conference, I still don’t know whether there was a traffic study that morphed into –
HOST: You still don’t know at this point whether there was a traffic study?
CHRISTIE: Well, what I’m saying, Eric, did this start as a traffic study that morphed into some political shenanigans, or did it start as political shenanigans that became a traffic study?
The host’s incredulity was understandable, since the notion that there was some kind of legitimate traffic study was discredited quite a while ago. Christie hopes to maintain his credibility as multiple scandals surrounding his administration continue to unfold, but the more he suggests the traffic-study fig leaf was real, the more suspect his defense appears.
It’s worth emphasizing that in the same interview the governor “unequivocally” denied having anything to do with the Fort Lee scheme before it was executed by his team last September.
It was, of course, Christie’s former deputy chief of staff, Bridget Ann Kelly, who said it was “time for some traffic problems in Fort Lee,” and it was Kelly who also raised some eyebrows late yesterday afternoon.
Kelly, whom Christie fired last month, has refused to comply with the subpoena issued by the state legislature’s investigatory committee.
In a letter issued [Monday] by the lawyer for Kelly, who last month was fired as Gov. Chris Christie’s deputy chief of staff after emails emerged showing she had apparently orchestrated the lane closures, Kelly cited both her Fifth Amendment right against self-incrimination and Fourth Amendment privacy rights.
Michael Critchley, Kelly’s lawyer – widely known as an aggressive and highly skilled trial lawyer – wrote in the letter that, “Here, the information demanded from Ms. Kelly … directly overlaps with a parallel federal grand jury investigation being conducted by the United States Attorney’s Office for the District of New Jersey.
Kelly is not the only former member of Team Christie to take the Fifth in response to investigators’ request for information – Bill Stepien, Christie’s former campaign manager, and David Wildstein, Christie’s former aide at the Port Authority, both did the same thing in January.
And speaking of subpoenas, Christie also acknowledged last night that his office has received a federal subpoena from the U.S. Attorney’s office as part of its investigation into the bridge scandal. This is separate from the subpoenas issued by the state legislature’s investigatory committee. The governor said his office will comply with the federal subpoena.
Finally, Christie said during the radio interview last night that he’s “curious” about “what happened here” and remains “really anxious to find out.” It’s unclear, however, why he didn’t ask Bridget Ann Kelly why the scheme was hatched before her dismissal.
By: Steve Benen, The Maddow Blog, February 4, 2014
“The Mad Men Problem At Home”: Closing The Wage Gap Begins With Remedying The Housework Gap First
When President Obama addressed the gender-based wage gap during his State of the Union address last week, women cheered and Congresswoman Rosa DeLauro even gave out high fives. Obama called on Washington and businesses to help women succeed at work and “do away with workplace policies that belong in a Mad Men episode.” However, the President forgot to name a key constituency in his call to help women succeed: husbands.
All the workplace policies in the world aren’t going to get women to parity unless we do away with our Mad Men-era policies at home, too. Despite the fact women are the sole or primary source of income in a record 40% of U.S. households, they still do the majority of housework and childcare. According to the Pew Research Center, during an average week[OK? The study, if I’m looking at the right one, seems to have measured weeks rather than days.], women spend more time cleaning, doing laundry, and preparing food then men do. Men, on the other hand, spend more time watching television than women do. And even in households where the woman is the sole breadwinner, the labor division is far from equal. Men who stay home average 18 hours of housework per week, while their working partners average 14. Stay-at-home mothers, though, average 26 hours of housework. Their working partners average just a third of that time. America has a housework gap, and it’s fueling the gender gap at work.
Research indicates there is a direct and negative correlation between housework and the wage gap. One theory, from research in The Journal of Human Resources, suggests this could be employers’ negative reactions to women who appear dedicated to household activities. It could also be that many employers believe mothers are less committed to their jobs than other employees, as Shelley J. Correll, a sociology professor at Stanford University, posits. As a result, employers are reluctant to hire them and offer them high salaries. The “mommy penalty” is real. The wage gap between mothers and non-mothers is greater than that between women and men, according to the advocacy group MomsRising.
It appears that in 2014, we have high expectations of what a woman can accomplish at work, but we still have 1950s expectations about her role at home. But it’s time to rethink and renegotiate who does what where. Men who have opted out of housework should lean in at home so their wives can lean in at work. And they should advocate for, and take advantage of, family-friendly policies such as paid sick days, paternity leave, and flex benefits in order to create a more equitable arrangement at home.
If we truly believe that, as Obama said, “when women succeed, America succeeds,” then we need to stop ignoring the housework gap. Laundry and dirty dishes may not be standard agenda items for our legislators and business leaders, but they should be. After all, a woman can’t have it all if she’s too busy doing it all.
By: Liz O’Donnell, Time, February 4, 2014
“Stick A Fork In Chris Christie”: A Textbook Lesson In How Many Politicians’ Public Personas Often Conflict With Reality
If Chris Christie knew, his presidential ambitions are kaput.
There’s a reason why nearly everyone who came to Christie’s defense left a wide-open caveat—if he’s telling the truth. Friday’s allegation that Christie knew about the George Washington Bridge lane closures, coming from the lawyer for his Port Authority official, David Wildstein, suggests he was lying during his epic two-hour press conference by claiming no knowledge of the situation.
“Christie would have to be the world’s biggest fool to say what he said in the way he said it if he did have any responsibility,” former George W. Bush spokesman Ari Fleischer told me after the governor’s press conference. “If there’s anything that contradicts what he said at the press conference, it would make it almost impossible for him to survive.”
One Democratic operative who was always skeptical of Christie’s outright denials pointed to other famous politicians caught in scandal who lied in order to forestall immediate consequences. Bill Clinton lied about Monica Lewinsky, John Edwards lied about his affair and child with staffer Rielle Hunter, and Anthony Weiner misled reporters about his online sexting. All hoped to buy time, desperately wishing that the media would turn its scrutiny elsewhere.
If Wildstein’s allegations are accurate—he’s seeking immunity from prosecutors for his own role in the scandal—Christie’s cover-up will be even more brazen. A former U.S. attorney, Christie is fully aware of the legal jeopardy he put himself into with unequivocal denials of involvement, all for only a short-term public-relations gain. He fired two of his closest loyalists, even though they may have been acting on his orders—or at least with his consent—all along.
Christie’s approval ratings were already taking a nosedive even before Friday afternoon’s revelations hit. His personal favorability in both national and New Jersey polls dropped underwater, and increasing numbers of voters have expressed skepticism that Christie knew nothing about what was happening under him. His main selling point for any presidential campaign was electability—that he was popular with independents and some Democrats—and that is no longer operative, even if he can recover from this scandal.
Depending on where the evidence leads, there are a lot of other political implications for the New Jersey governor. Can Christie stay on as chairman of the Republican Governors Association under the cloud of scandal? Republicans, already facing a bruised brand, won’t want to have a scandal-plagued governor as the face of their party. It’s hard to see even the most enthusiastic prospective donors, like Home Depot cofounder Ken Langone, sticking on the bandwagon. And it’s hard to see how Christie will be able to accomplish much in his second term with investigations poised to continue indefinitely.
Christie’s downfall is a textbook lesson in how many politicians’ public personas often conflict with reality. Christie has assiduously developed an image as someone who was above politics to get things done, but in reality, he was a product of a New Jersey political system where trading favors for political support is ubiquitous.
As I wrote this month, Christie’s downfall stems from his hubris—the belief that he could win over many Democratic officials to a landslide reelection victory, and his confidence that he could use his impressive rhetorical skills to talk his way out of this mess. On both counts, he got what he wanted initially, only to see the house of cards collapse.
By: Josh Krausher, The National Journal, January 31, 2014
“So Much For Republican Rebranding”: The Mike Huckabee Boomlet Betrays The GOP’s Lack Of Seriousness
Since Mike Huckabee delivered his anti-contraception “Uncle Sugar” speech to the RNC two weeks ago, he has catapulted to the top of two GOP presidential primary polls.
Yes, that is what it takes to become the Republican frontrunner these days. Not innovative policy solutions. Not an impressive legislative record. No, what you need is to let loose a politically incorrect swipe at a liberal caricature, stir up a bunch of media outrage, and Republican primary voters will want to give you the nuclear codes.
The Republican Party is suffering record low favorability and struggling to be seen as capable of governing. And the Huckabee boomlet provides the latest evidence that the party’s rank-and-file are still allergic to seriousness.
With the first 2016 primary contests two years away, Republicans have already begun replicating the dynamic of the 2012 primaries. Last time around, primary voters fleetingly embraced anyone, regardless of their plausibility, so long as they tossed out fresh “cable catnip” to make liberal heads explode. Michele Bachmann, Herman Cain, Newt Gingrich, Rick Santorum… The revolving door of unpresidential wingnuts reduced the Republican primary to a traveling circus, hamstringing eventual nominee Mitt Romney as he struggled to keep up in the pander parade.
Another circus is not what party poo-bahs have in mind. Indeed, they’re already moving to condense the primary schedule and wrest some control of the debates away from the media in hopes of dialing down the nuttiness.
Wipe the dust off of the RNC’s year-old “autopsy” of its 2012 debacle, and you’ll find a forgotten plan to “Promote Our Governors” because they “have campaigned and governed in a manner that is inclusive and appealing. They point the way forward … working successfully with their legislatures to enact meaningful changes in people’s lives.” In other words, the governors were supposed to be the ones with the ideas to make the party look serious again.
But over the course of 2013, the only governor that got widely promoted — or, more accurately, promoted himself — was New Jersey’s Chris Christie, and we know how that turned out. Other governors touted in the autopsy have had their own struggles, be it Virginia’s Bob McDonnell, who was recently indicted for corruption, Louisiana’s Bobby Jindal ,who flopped trying scrap his state’s income tax, or Wisconsin’s Scott Walker, who is polling below 50 percent in his re-election campaign this year.
There are other low-key Republican governors who are doing just fine. In particular, Nevada’s Brian Sandoval is hugely popular, and is a swing state Latino to boot. Unlike the controversial Walker, Sandoval doesn’t even have a serious opponent to his re-election this year. But he’s popular because he is governing pragmatically, implementing ObamaCare in good faith and forging budget compromises that raise some tax revenue. And so he is completely ignored by Republican primary voters.
The upshot is this: No Republican governor begins the race as a top-tier presidential candidate. No Republican governor’s ideas are reshaping and rebranding the party. And a joke candidate like Huckabee can waltz into the lead, however briefly, with a low-rent crack.
Why are Republicans insistent on setting themselves up for more mockery? Because conservative obsession with fighting political correctness clouds their political thinking, compelling them to repeatedly alienate the moderate voters they need to get back in the game.
Many conservative Republicans seem to believe that political correctness is such a societal scourge, silencing ideas and warping debate, that it must be fought at all costs — even at the cost of forgoing new ideas.
This is why RNC Chair Reince Priebus was engaging in folly last week when he dropped everything to demand MSNBC apologize for a tweet suggesting the “right wing” is racist (after the network had already apologized). He was scratching the Republicans’ politically incorrect itch, instead of finding the ointment.
Priebus can cram the primary schedule down to two weeks and turn every debate into an infomercial. But until he can clamp down on the victimhood and crank up the idea machine, 2016 will be another cacophonous GOP circus.
By: Bill Scher, The Week, February 4, 2014
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