“Congress Does Nothing But Sue Obama”: Boehner’s Obama Lawsuit Is The Fault Of The Do-Nothing Congress
House Republicans are so angry that President Obama has been going around them to make policy that Speaker John Boehner says he will file a lawsuit against Obama to stop what the GOP sees as abuse of executive power. Said Boehner:
The Constitution makes it clear that a president’s job is to faithfully execute the laws. In my view, the president has not faithfully executed the laws. When there are conflicts like this between the legislative branch and the administrative branch, it’s … our responsibility to stand up for this institution.
Hello, pot? It’s the kettle calling. You’re black.
Boehner’s right in that the executive branch has been driving policy changes – even ones around the edges – and often using executive orders to do it. Obama is not the only president to do this, and it’s understandable that Congress would be irked at not being made a part of the process.
What rings hollow here is that Congress has aggressively chosen not to be part of the process. The 113th Congress is the least effective Congress in recent history, unable to get even basic budget and appropriations items, let alone a comprehensive immigration bill or entitlement reform. This Congress, and the House in particular, has made it a mission to oppose pretty much anything Obama wants to do (even, in some cases, where what Obama wants to do is not that dissimilar to what a lot of Republicans say they want). That’s their right, but it’s not rational for them to expect Obama to just sit by, throw up his hands and say, “oh, well – I guess I just won’t have any impact on the nation, even though I’m president.” (Though that would serve a Republican goal, too, giving them fodder to call Obama “weak” and “ineffective.”)
And it’s not as though the legislative branch hasn’t tried to flex its muscles and push around other branches of government . The House, in the past, has considered legislation that says, in the text, that the law cannot be subject to judicial review. Another bill would force another branch of government, the Supreme Court, to allow cameras in the room during oral arguments – something the high court doesn’t want and sees as a legislative branch encroachment on its day-to-day workings.
And is Obama really the only “kinglike” figure here? Mitt Romney, in the 2012 campaign, repeatedly pledged to undo Obamacare – a law written by Congress and passed by Congress – by executive order on his first day in office. Obama has been fiddling with enforcement and application of laws and regulations administered by the executive branch. Romney wanted to undo an entire law, just because it was approved by people who were duly elected by their constituents but with whom Romney does not agree. Rick Santorum, running in 2012, listed nine executive orders he planned to issue to undo laws of the land relating to abortion, stem cell research and gay marriage. He also pledged to call on Congress to abolish the Ninth Circuit Court of Appeals, a court whose rulings Santorum did not like.
Power abhors a vacuum. And if Congress categorically refuses to participate in the law-making process, it can’t expect other branches to follow suit. The Supreme Court has had a major role recently in public policy, especially issues such as gay marriage. It’s not because nine justices are sitting in a room, wringing their collective hands in a menacing way while laughing evilly. It’s because the legislative and executive branches have been unable to work together and recognize each other’s authority.
So some in Congress think Obama is taking too much power in the way he does his job. Maybe if Congress would do its job, there would be no problem.
By: Susan Milligan, U. S. News and World Report, June 26, 2014
“Another Idiot With A Gun”: A Sign Of How Out-Of-Control The Gun-Owning Fetish Has Become
One of the many problems with the growing normalization of gun ownership is that a growing number of idiots will want to buy and keep guns for no particularly good reason, and a subset of those idiots will go on to kill people.
Witness the latest horror story, in which an 11-year-old New Jersey boy, Hunter Pederson, was shot dead by his uncle, Chad Olm.
Mr. Olm said Hunter and Mr. Olm’s son asked to see his collection of firearms. So he obligingly whipped out three guns, including a Glock 27 .40-caliber pistol with a laser sight. (Why Mr. Olm felt he needed such a weapon, or such an attachment, has not been explained, probably because there is no satisfying answer.)
After showing his 11-year-old nephew a deadly weapon with a laser sight, he turned on the sight, putting a red dot on the boy’s forehead. For laughs, or something. Mr. Olm said Hunter reached for the gun, and it went off, hitting him above the eye.
Mr. Olm said he keeps his guns unloaded (obviously not), but that he had not checked to make sure before he aimed one at a small boy’s head.
Mr. Olm was arrested and is facing charges of criminal homicide, recklessly endangering another person, and endangering the welfare of children.
Anyone with the slightest shred of sense knows that you check weapons for chambered rounds before you put them away — not when you’re showing them off — and that you should never point a gun at anyone unless you think you might need to shoot.
(My wife comes from a gun-owning family. When she was growing up her father would become enraged if any of his kids pointed so much as a plastic toy pistol at someone.)
Before the comments start piling up from the anti-gun control crowd, I am not saying that all guns should be outlawed or that a better background-check system would necessarily have prevented this senseless death.
But the killing of Hunter is a sign of how out-of-control the gun-owning fetish has become, and how little it has to do with anything the writers of the Constitution envisioned.
By: Andrew Rosenthal, Opinion Pages, The New York Times, May 6, 2014
“It’s Time To Get Creative”: Want To Cut The Rich’s Influence? Take Away Their Money!
Chief Justice John Roberts this week continued his gradual judicial elimination of America’s campaign finance laws, with a decision in McCutcheon v. FEC that eliminates “aggregate” contribution limits from individuals to political parties, PACs and candidates. The decision may not have a catastrophic effect, in a world where individuals were already permitted to donate unlimited sums to independent political organizations, but it is just another move toward the end of regulation of political spending altogether. If Americans want to limit the influence of money on politics, they will have to start getting more creative.
Roberts’ specialty is “faux judicial restraint,” in which he achieves his radical desired goals over the course of many incremental decisions instead of one sweeping one. In this case, as many observers have noted, Roberts pointed to our current easily circumvented caps on political spending as justification for lifting yet another cap, without noting that the Roberts court helped create the current system to begin with. Our campaign finance laws have not quite yet been “eviscerated,” but the trend is clear. Roberts and Justice Clarence Thomas, who penned a partial dissent calling for all regulation of political spending to be eliminated, have something close to the same end goal, but Roberts is willing to be patient in getting there.
As long as Roberts and his fellow conservatives dominate the Supreme Court — and it seems likely that they will continue to dominate it for years to come — campaign finance reformers are going to find themselves sabotaged at every turn. As Rick Hasen says: “It is hard to see what will be left of campaign finance law beyond disclosure in a few years.”
By: Alex Pareene, Salon, April 3, 2014
“Justice Roberts Defends The Embattled Rich In McCutcheon”: With Laundered Contributions, You Can Now Buy Off Whole Committees
Chief Justice John Roberts’s majority opinion in McCutcheon v. Federal Election Commission, in which the Supreme Court struck down aggregate limits on campaign donations, offers a novel twist in the conservative contemplation of what Nazis have to do with the way the rich are viewed in America. In January, Tom Perkins, the Silicon Valley venture capitalist, worried about a progressive Kristallnacht; Kenneth Langone, the founder of Home Depot, said, of economic populism, “If you go back to 1933, with different words, this is what Hitler was saying in Germany. You don’t survive as a society if you encourage and thrive on envy or jealousy.” Roberts, to his credit, avoided claiming the mantle of Hitler’s victims for wealthy campaign donors. He suggests, though, that the rich are, likewise, outcasts: “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he writes:
If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
So the problem is that even Nazis are treated better than rich people—less constrained by public anger in their ability to speak out. Or pick your analogy: when thinking about people who want to donate large sums of money to candidates, should we compare their position to that of the despised and defeated, like the Nazis in Skokie, Illinois, in the nineteen-seventies, or of scorned dissidents, like flag-burners, trying to get their voice heard with their lonely donations?
As in Roberts’s opinion in Shelby v. Holder, in which the Court overturned parts of the Voting Rights Act last year, the people we think of as having the power are, in fact, embattled, the victims of schemes, driven by popular opinion, meant to “restrict the political participation of some in order to enhance the relative influence of others,” as Roberts put it. “The whole point of the First Amendment is to afford individuals protection against such infringements,” he wrote, adding:
No matter how desirable it may seem, it is not an acceptable governmental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.”
There is, apparently, a fine line between efforts to keep our political system from being for sale and a social experiment in levelling.
Roberts’s opinion left intact limits on how much a person can donate to a single candidate or party committee, but it took away the limit on how much money in total a person can give directly to candidates. Until this case, the totals were $48,600 to individuals and $74,600 to committees per election cycle. (Shaun McCutcheon, the plaintiff, said he wanted to keep giving directly to Republicans after he’d reached his limits; the Republican National Committee joined him in the case, saying it would be happy to take his money.) Roberts recognized, as the Court long has, that the government has an interest in preventing corruption which allows it to limit the size of a check that one person can hand one candidate. Earlier decisions allowed the aggregate limits in order to prevent donors from using multiple contributions to get around the cap, by giving to numerous committees that might pass the money around and get it to the candidate anyway. Stephen Breyer’s dissent—he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—lays out a number of quite practical ways this could happen, but Roberts dismisses those arguments as silly.
“It is hard to believe that a rational actor would engage in such machinations,” Roberts writes, after examining how a person could donate to a hundred PACs to get money to a hypothetical candidate named Smith. He may simply be lacking in imagination here: the immediate effect of McCutcheon is likely to be the development of structures and vehicles for effectively laundering contributions through many small channels, and the emergence of specialists who know how to set these things up. Roberts might think that the complexity—the potential paperwork—is a guarantor against corruption, but he has too little faith. We’ve got the technology to get it done.
Roberts’s other argument is a little sad: “That same donor, meanwhile, could have spent unlimited funds on independent expenditures on behalf of Smith.” In other words, aggregate limits wouldn’t foster corruption, because using money to influence a campaign is much easier with the sort of independent expenditures that Citizens United makes possible.
Citizens United or no, McCutcheon will set up a large-scale experiment in how money is used and passed around, with new kinds of mega-bundling, and how coördinated donations either impose uniformity on a party’s far-flung candidates or help to solidify regional or ideological blocs. It may be a different kind of leveller than Roberts imagines; it could also be a way to financially fuel intra-party civil wars. And that is quite separate from the new potential for influence peddling. Instead of targeting a single Congressman, you can try to buy off a whole committee.
But then Roberts relies on a very narrow measure of corruption: “Ingratiation and access … are not corruption,” he writes, quoting Citizens United. (There are a number of citations of Citizens United in this decision.) The argument of McCutcheon, in effect, is that a political party itself cannot, by definition, be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.” The gratitude may only be for a place of safety where donors, assailed by the popular opinion of bitter, poorer people, can find a little bit of solace.
By: Amy Davidson, The New Yorker, April 2, 2014
“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
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