Nuke ’em, Harry!

Harry Reid has decided that enough is enough, and will move to reform the filibuster by a simple majority. Good for him!

At last, Harry Reid has concluded that the Senate cannot function with an effective 60-vote threshold for confirming nominees, when the his Republican colleagues are using their minority power to undo basic Constitutional processes. Instead of whomping up the usual insincere objections to individual nominees, the Senate GOP has decided that this President will not be allowed to fill any of the vacancies on the DC Circuit Court of Appeals. So he’s going nuclear, and he thinks he has the votes. (The record suggests that Reid is pretty good at counting.)

I’m on record as saying that a mid-session change in the filibuster rule made by simple majority vote is a breach of the Senate rules. So be it. Extraordinary abuses demand extraordinary remedies. A asymmetric political process, where one side respects convention and the other systematically abuses whatever power it has, is not sustainable.

The theocratic party

55% of Reps favor making Christianity the official state religion. Only a third support religious freedom.

Fifty-five percent of Republicans in a YouGov poll would support making Christianity the official religion in the states where they live. Only 33% support religious freedom, only 15% “strongly.” A plurality of Republicans, but short of a majority, would amend the Constitution to make it the official religion of United States.

And you probably thought I was kidding, or exaggerating, when I called the GOP “theocratic.”


The 14th Amendment (non)Option

The President can no more borrow money on his own say-so than he can raise taxes on his own say-so. Both powers are clearly assigned to the Congress. So the “14th Amendment Option” is entirely imaginary.

The Constitution assigns to the Congress the power to “borrow money on the credit of the United States.” (Art 1, Sec. 8, second clause.) That’s right after the power to tax.

The President can no more borrow money on his own authority than he can impose taxes on his own authority. Any attempt to do so would be a clear violation of the Constitution.

It is not the case that the debt ceiling is a statutory control imposed on an otherwise empowered President. The Congress used to authorize debt issuance on a case-by-case basis, the way it commissions officers. Then it switched to authorizing debt issuance up to a fixed limit. But without Congressional authorization the Constitution does not allow the President to borrow money. Period.

The 14th Amendment says that the validity of the debt shall not be
questioned. It does not give the President any authority to do anything whatever. If the Republicans allow the government to run out of money, the Treasury has to stop writing checks.

Yes, that’s a bad outcome, which is why we should do everything we can to put pressure on Congressional Republicans to do the right thing. Inventing imaginary ways out of the problem just tells the infants then can keep on making messes because the grown-ups are available to clean up after them.

Update Yes, some of the lunatics have gamed this out. Sarah Palin says that it would be an impeachable offense either for the President to not pay the debt or to borrow to pay it past the limit set by Congress. 

It´s Harry Reid´s Alamo too

Bohner´s attempted revolution also targets the Senate.

Harry Reid´s political interests are loosely aligned with President Obama´s but they are not identical. (For one thing, Reid cares a lot more about the 2016 election.) It´s striking that in the current showdown with John Boehner´s House Republicans, they are both standing firm. No surrender, no negotiation.

Charles I executionBoehner is, willingly or not, leading an attempt at not one but two constitutional revolutions, that it took the Westminster House of Commons 270 years to achieve. The first is against the President or monarch: to use the power of the purse to establish the supremacy of the parliamentary majority over the executive. Westminster started this fight in 1641 and won it with Charles I´s execution in 1649.

The second is to establish the supremacy of the lower over the upper house. After a trial run in 1832 over Grey´s Reform Bill, the House of Commons established its primacy over the Lords with the 1911 Parliament Act. The vistory came after a huge struggle sparked by Lloyd George´s redistributive ¨People´s Budget¨ of 1909. Boehner´s proposals would downgrade the Senate from an equal partner to a consultative appendage to the House, not only on the budget but on any controversial legislation like ACA.

Reid, like Obama, has no choice but to fight this putsch to the end. Fortunately for Senate Republicans, budget procedures do not allow filibusters, so GOP Senators are spared an explicit choice between their ideology and their status. Most to them by report didn´t think much of Ted Cruz´s pseudo-filibuster.

Neither Charles I nor the House of Lords had democratic legitimacy, so the changes were clear improvements. This cannot be said of Boehner´s campaign, which if it succeeds will upend a constitution designed on the principle of a balance of powers, in order to prevent the democratic tyranny of a president or congressional majority. Americans are brought up to think this scheme superior to the untrammelled rule of a whipped Commons majority, and on balance they are right.

Some will object to the comparison. Quite apart from the merits of their causes, Speaker Lilburne, John Hampden, Charles Grey and David Lloyd George were politicians of a different calibre to John Boehner and Eric Cantor. They had also thought things through.

If-you-can-keep-it Dep’t

So former Bush-the-Lesser henchman Mark Thiessen disapproves of what he rightly calls the hostage-taking strategy of Cruz, Boehner & Co.: because they’re threatening the wrong hostage. Instead of just threatening to shut down the government, they ought to be threatening to smirch the honor and wreck the credit of the United States of America by defaulting, and in the process throw the world economy into a tailspin, because given that threat, according to Thiessen, the President would have to capitulate.

Thuggish behavior is nothing new in American politics. But the adoption of this sort of thuggish language hasn’t been seen since the run-up to secession.

Most political reporters haven’t noticed it yet, or at least won’t say so out loud, but this is no longer normal politics. This is civil war conducted (for now) by non-violent means. Unless the voters wake up and massively punish the Republican Party for putting the country through this, the constitutional system which has served us pretty damned well for two-plus centuries is under actual and immediate threat.

Of the many wise and witty remarks attributed to Benjamin Franklin, the finest was his answer to a woman who asked him, as he emerged from the final session of the Constitutional Convention (which conducted its business in secret), “Well, Dr. Franklin? What is it to be? A monarchy, or a republic?” Franklin replied, “A republic, madam: if you can keep it.”

As things are shaping up right now, the 2014 elections may be as important as those in 1800 or 1860. That’s not a good thing. But since it’s the case, we need every patriot - every lover of the work of 1789 - to get angry, and get energized, around the project of keeping the Republic.

Why the nuclear option is justified, and why the Democrats should go the whole hog

“Tit for tat” is good strategy; trying to get just a little bit pregnant is not.

Senate Republicans have decided to use the power of the filibuster to make it impossible for the President to fulfill his sworn duty to “take care that the laws be faithfully executed.” They don’t like the law creating the Consumer Financial Protection Bureau, so they’re promised to block a vote on any nominee to head the Bureau until the law is rewritten to their specifications. They dislike the idea that workers might be protected from arbitrary actions of their employers, and have refused to allow votes on the confirmation of members of the National Labor Relations Board; save for the President’s recess appointments - under court challenge - that agency could not function at all, which would deprive workers any avenue to vindicate their legally guaranteed rights.

It now appears that Republican obstructionism has gotten to the point where even some of the old Senate bulls on the Democratic side have decided to give partisanship and patriotism priority over institutional pride, and allow Harry Reid to move forward with the “nuclear option” the Republicans threatened to use against judicial filibusters in 2005.

There’s no polite way to put this: the nuclear option is cheating. Continue reading “Why the nuclear option is justified, and why the Democrats should go the whole hog”

Hidden Time Bomb in the DOMA Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes yesterday, which is a good thing.  Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in.  Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes.  (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California.  Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage.  Then Molly dies and Sarah wants Social Security survivors’ benefits.  Does she get them?  The answer is not obvious.  Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma.  Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem.  (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy).  Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer.  Would they qualify for federal benefits?  No, said Kaplan: it would turn on domicile, not state of marriage.  But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right.  If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.  (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated.  The answer might turn on the interpretation of the statute in question.  After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power.  As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute.  President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion.  But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference).  So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.

Dad’s Army for Freedom!

The strange belief that militias are necessary for liberty.

Barack Obama took a nice dig at Second Amendment absolutists in his second inaugural speech:

For the American people can no more meet the demands of today’s world by acting alone than American soldiers could have met the forces of fascism or communism with muskets and militias.

The question: what did the authors of that little sentence, the Second Amendment, mean by it? is subject to the historical analogy to Goodhart’s Law : when an indicator is used for policy, it gets distorted (see: monetary targets, Soviet central planning). To get an unbiased evaluation of the original intention, you’d have to hire a historian from Mars and deprive them of all data after 1800.

Fortunately there’s a slightly easier question. Where did they get the idea of :

A well regulated militia being necessary to the security of a free state …

How does this stand up as a claim of fact?
In 1792 it looked pretty good:

    • List of free states: Great Britain (*), France, Netherlands, Switzerland, United States.
    • List of free states with militias or citizen armies: Great Britain, France (chaotically), Switzerland, United States.

* when not considered as a tyranny under the iron gaiters of George III.

Today the proposition doesn’t look quite so good: Continue reading “Dad’s Army for Freedom!”

Does Barack Obama blaspheme the Founders? Sort of. Good for him. And it doesn’t matter.

George Will, channeling (and hacking to pieces) Charles Kesler, claims that the President’s belief in progress blasphemes the Founder’s belief in natural rights and limited government. He has half a point. But it doesn’t much matter. The Founders’ beliefs deserve to be challenged. And once one jumps outside the conservative bubble, where all that matteres is culture and rhetoric, is to realize that progressive critics of the original constitution won on the institutional level, definitively, about a century ago.

I have to take exception with Mark’s post from last Saturday. In it, he slammed George Will, channeling a book by Claremont professor Charles Kesler, for claiming Barack Obama was part of “a conspiracy against the Constitution embracing Woodrow Wilson, FDR, and LBJ.” Actually, the Will/Kesler thesis has something to it. Obama almost certainly does disbelieve in natural rights and other things (most of the) Founders believed in. But to the extent he does, good for him. And to the extent that Will and Kesler want the original constitution back, they’re a few generations too late.

Kesler is, as Mark puts it, a “third-string Straussian” only in the sense that we’re all third string compared to a scheming genius like Strauss. Kesler is of course extremely conservative, but a very intelligent and serious scholar with whom one can amicably disagree in conversation, as I have. While I haven’t read his book, I would submit that it’s less likely that the book has no argument than that Will, in a 750-word column that quotes a few sentences from the book, fails to do justice to it. And I’m baffled by Mark’s claim that Will is “as intelligent a figure as the Red team has to show.” One could bounce a squash ball off the walls of the Hudson Institute’s conference room and hit a dozen smarter ones.

Even Will’s breakneck summary, though, is not completely implausible. The question is whether it matters, and whether Obama or Will is the real radical here. Continue reading “Does Barack Obama blaspheme the Founders? Sort of. Good for him. And it doesn’t matter.”

Politics and physics

When I was in the eighth grade I had Mr. Nadrowski for science, and one day he called Stephen Chilcote up to the front of the class and told him to push against the cinder-block wall until it fell over.  As Chiclet obediently pushed and the rest of us watched, Mr. Nadrowski kept up a descriptive patter: “So there he is, beads of sweat are popping out on his forehead, his muscles all straining; but you know what?  He’s not doing any work!”  His point was that from a physics standpoint no work occurs unless the object responds to the force; if the wall didn’t move, Stephen’s efforts didn’t count.

This seems to be the definition of “work” Republicans are using to complain that President Obama isn’t doing enough to fix the economy.  They build a cinder-block wall of legislative refusal and then criticize him for failing to push it over.

And when he does manage to move objects despite the cinder-block—by the Executive Order modifying immigration or the administrative maneuvers necessary to maintain contraception as a component of basic health-care—his opponents hyperventilate about Obama’s terrifying expansion of Presidential power.  From the people who created the Constitutionally bogus “signing statement,” that’s chutzpah enough to topple the canonical instance: the boy who, having murdered his parents, asks for leniency because he’s an orphan.

So let’s do some real work of our own.  If you’re interested in actually moving objects—Obama canvassers from Illinois to Iowa, and Iowa Democratic voters from their homes to the polls—please join my Wednesday evening phone bank, beginning this week (July 11) and continuing through the election.  Contact me off-line for details, but bear in mind that Iowa votes early, beginning on September 27: if we’re going to knock over the wall, we’ve got to do it over the summer.