President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.
A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.
Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.
Isn’t the Supreme Court supposed to have the last word on these matters? In challenging President Bush’s attempt to replace regional U.S. Attorneys against Congressional opposition in 2006, Democratic Rep. Henry Waxman said such differences between the executive and legislature must be umpired by the courts. He and his classmates were taught in law school that “the Constitution was what the Court said it was.” Bush replied he would not allow his Attorney General to enforce a judicial contempt order even if the court issued one and that was that. More recently, President Obama announced he would not enforce federal anti-drug laws against states with marijuana legalization laws and refused to deport certain illegal immigrants. Back in 1988, Congress passed a Civil Rights Restoration Act specifically nullifying the Grove City Court decision and in 1991 passed a civil rights bill overruling five Supreme Court decisions by name.
Even with their relative decline in recent years, the states are not without redress either, as the marijuana legalization laws demonstrate. States have created constitutional amendments, laws, and attorneys general suits to circumvent national laws and opinions on marriage, abortion, racial preferences, gun restrictions, the Real ID Act, Obamacare (by more than half the states), and many others. Indeed, many federal laws and court decisions are administered by state bureaucracies that differ in their interpretation and enforcement greatly, as Alabama and Massachusetts in fact do. Amendments to the Constitution have been passed on many critical subjects over the years and on several occasions the mere threat has changed federal policy.
Taxes would seem one area where the legislature must predominate. No taxation without local representation was the principle complaint justifying the American war for independence. Today the effective imposition of taxes by creative executive regulatory interpretation—such as the recent increase in fuel emission standards—is the rule rather than the exception. Judges have required state legislatures to increase taxes to upgrade schools for minorities or to redress other presumed shortcomings for all kinds of special interest purposes. A St. Louis federal court in effect ran the local school for decades. Since the Supreme Court has ruled that the Obamacare penalties were taxes, exemptions and changed regulatory requirements are in effect taxes passed by the health and treasury secretaries alone.
President Obama is by no means the first to govern by Executive Order. Read More…
The media has missed the real story in former Defense Secretary Robert Gates’s new book, Duty. While coverage stresses his criticisms of President Barack Obama, Vice President Joe Biden, and the White House staff, his main target is the Pentagon, about which he writes, “no one knew what anyone else was doing.” The Pentagon’s byzantine administration ignored many of Gates’s commands and largely defeated or delayed his proposals. This is a common concern amongst those serving in top government positions, but the Pentagon is the most stubbornly labyrinthine.
Concerning the Afghanistan and Iraq interventions, Gates writes, “We entered both countries oblivious to how little we knew.” He generally concludes we should be more cautious in getting involved anywhere in the world and that we should plan our exit from the very beginning. Duty imparts much good sense. When NPR asked for his reaction to the media’s handling of his book, Gates’s greatest regret was that quipped sound bites from ideological partisans had displaced discussion of its deeper issues. Foreign policy should be serious business.
Unlike much of the media, the Wall Street Journal is indeed interested in such a debate, and argues that today’s greatest foreign-policy peril is an American “retreat” from “Syria, Lebanon, Iraq, and beyond.” Its editors criticize President Obama and “Rand Paul Republicans” for wanting to “avoid the world’s conflicts with good intentions and strategic retreat.” Indeed, most Americans “want to forget about” the U.S.’s strategic obligations, despite threats from Sunni extremists igniting car bombs in Lebanon and capturing cities in Iraq, Shi’ite Hezbollah moving anti-ship missiles into Lebanon to threaten Israel, and Shi’ite Iran advancing toward nuclear arms.
“The dangers are that the violence in Lebanon devolves into another civil war or that Hezbollah provokes Israel into a response like the 2006 war,” while Syria’s civil war spreads to Iraq and the entire Middle East. Much of the blame, the editors concede, goes to “the heavy-handed sectarian rule of Shiite Iraqi Prime Minister Nouri al-Maliki,” but they believe major responsibility rests with U.S. refusal to help the “moderate Syrian opposition,” and Obama’s withdrawal from Iraq without leaving sufficient forces to act “as a bulwark against al-Qaeda’s revival and Iran’s regional domination.”
The editors represent an important voice in the debate and deserve a serious reply. First, withdrawal from Iraq was not a partisan decision. George W. Bush set the troop removal schedule, and neither his administration nor Obama’s could successfully negotiate for a residual force against the wishes of Iraq’s new leaders (whom both administrations spent American lives and money to place in power). More importantly, in the thousand-year war between Sunnis and Shi’ites, who are we retreating from? Even moderates on both sides of Islam view their opposites as heretics. The U.S. began by supporting Shi’ites in Iraq against a Sunni regime, but in Syria supported Sunni rebels against a Shi’ite/Alawite ruler. Whose side are we on? Read More…
America has 5 percent of the world’s population but one-fourth of its prisoners. Nearly one-third of Americans are under correctional facilities’ control at a yearly cost of $60 billion. Imprisonment has grown 400 percent over the past twenty years, the great majority for non-violent crimes. And two-thirds of criminals are back in jail for similar crimes three years after they are released. Our current correctional policy is a national shame and it simply does not work.
Both Edwin Meese and Eric Holder, the attorneys general for presidents as different as Ronald Reagan and Barack Obama, have criticized this status quo. So have uber-liberal E.J. Dionne Jr. and New Right founder Richard Viguerie. The American Civil Liberties Union and Right on Crime agree. Holder’s plea to limit sentencing for non-violent offenders can be questioned coming from one who is otherwise criminalizing new civil procedures and is blunt that his motivation comes primarily from the “shameful” fact that black male perpetrators receive longer sentences than whites. Likewise, while calling for bipartisan agreement, Dionne also emphasized the need for gun control and ending “stop and frisk” laws, a sure means to derail agreement. Caution is called for but the fact that both left and right have expressed doubts is significant.
Even Dionne concedes the crisis began in the 1960s when an “anything goes” leftist counterculture romanticized illegal behavior as glorious acts of self-fulfillment and independence, all beamed to the public by a sympathetic media and popular culture. A liberal Supreme Court responded with decisions expanding criminal rights, limiting confinement and the death penalty, and restricting police response. Crime exploded with murder and willful manslaughter doubling from 5.1 per 100,000 population in 1960 to 10.2 by 1980. The people responded by demanding a narrowing of rights and tougher penalties. The politicians complied.
The right became identified with “tough on crime” even though the leading voice of this frustration was President Richard Nixon who was anything but conservative in most of what he did, overseeing large increases in welfare spending, environmental regulation, racial preferences, and even wage and price controls. More principled conservatives supported Nixon’s program out of outrage that the Supreme Court had acted so arbitrarily by overriding Congress, the Executive, and the states without the least consideration of public opinion. As the right gained politically for supporting tougher policing and punishment, the more pragmatic left led by then Senator Joe Biden claimed equal toughness on crime by applying the death penalty and longer sentencing to many less violent matters. Tough-on-crime turned bipartisan.
Conservatives began having second thoughts as laws exploded to criminalize vast new areas of social life. Today there are 4,000 federal laws elaborated by 300,000 national regulations with thousands more at the state and local levels. Even lawyers do not know the law outside their own narrow field. Most of the additions were for nonviolent offenses, now representing 90 percent of federal prisoners. Violent crimes such as murder, assault, robbery, rape, and battery are widely acknowledged as the most serious, with the guilty being rightly placed where they cannot hurt society again. But imprisonment for non-violent crime is another matter—especially considering that a 2009 Associated Press study found that 60,000 inmates were sexually assaulted that year. Read More…
Did the Republicans get their butt kicked by shutting down the government and delaying the debt increase last month? On substance, Republicans in fact won, although there is a lurking danger in the budget settlement that could snatch defeat from the jaws of victory.
The real issue for the Democrats has always been the sequester. As the Washington Post’s Zachary Goldfarb noted “Democrats hate the sequester because it’s basically the opposite of their vision of domestic investment” where the government experts know best how to allocate society’s resources. At the beginning of the year, President Barack Obama, Senate Leader Harry Reid, and House minority boss Nancy Pelosi all set reversing the sequester spending cuts as Democrats’ top priority. Reid was especially incensed and even blamed the president and himself for being “too lenient” in being suckered into the deal in 2011 and this time won a pledge from Obama to keep the White House out of the negotiations.
With Obama president for three more years and the Senate still under Democratic control, Reid held the whip hand. What could conventional Republicans do? With the president refusing to bargain at all, what would have happened if the Tea Party backbenchers in the Senate and House had not gone ahead with the shutdown and debt threats? The whole focus of this year’s debate would have been on overturning the sequester and how the evil Republicans were punishing the poor by refusing to do so, reprising the winning theme used successfully against Mitt Romney. The compliant mainstream media would have happily picked up their favorite theme for their favorite politicians and made the Republicans look just as bad as they actually did on the shutdown. The polls would have ended exactly the same, only the spending cuts would be gone. Read More…