Tags: Constitution

For Simplicity’s Sake, Pledge Tit-for-Tat GOP Executive Order


The essence of my proposal here is that the GOP would hold a caucus in which its members pledge not take any action against one future Republican president elected in 2016, 2020, or 2024, if he or she were to issue one executive order of equivalent impact with Obama’s threatened Big Amnesty order, if Obama goes through with it.  

You Dems dare to get Big Amnesty by unconstitutional executive-branch de facto legislating? Know this, then: The next time we elect a president, we get Big Fence, or Big Obamacare Repeal, or some other Big conservative wish-list law, by a similar executive order.

The GOP could do this if a) they were too chicken to pledge impeachment in retaliation for Big Amnesty, b) they pursued such, but found the public to be too much against it, or c) if the House went ahead and impeached Obama in retaliation, but with no effect on his behavior. Again, Senate conviction is impossible. Of course, I’m for the GOP pledging both impeachment and retaliation by executive order. ASAP. Give Obama and his party several reasons to want to back-down .    

The principle is simple:  this is grossly unconstitutional, and to deter Democrats from ever tolerating such again from one of their presidents, we will make them pay an equivalent price policy-wise. 

It is only in the language, and in agreeing upon the proposed menu of proportionately retaliatory executive actions, where things get tricky. 

As to the language, Republicans would have to say, “We are pledging ourselves to do nothing against one executive order by a GOP president we think is unconstitutional, for the sake of keeping any more of such orders being done. We will thus allow one instance of egregious Constitution violation for the sake of protecting it against many more.” The language must not say that any president has a right to such an action.  

As to the menu of acceptable retaliatory actions, this would be difficult to gain agreement upon, but such agreement would be absolutely necessary. Otherwise, we would face the prospect of some rogue Republican presidential candidate promising to do a too expansive retaliatory executive order, and he or she winning the election. Or, we would face the prospect of a Republican president, once in office, springing some quite new proposal upon us and saying we had agreed to it in principle. So each item — I would recommend three to five options — on the menu of acceptable retaliatory options would have to have some flexibility, such that a Republican president as late as 2024 would still find them relevant, but not so much as to amount to a blank check. 

I would leave the debate about such proposals to the Republican meeting, which should include all Republicans sitting in or elected to Congress, all Republican governors, and perhaps the chairman and other high officers of the party also. My suggestion would be to make the options as similar in broad nature to the promised Obama executive order as possible — i.e., they would be orders that mainly work via purported prosecutorial discretion, and that similarly effect so many millions of persons or have an equivalent fiscal effect. If a couple of these options could be drafted with respect to immigration policy, and if in a “restrictionist” spirit, all the better. I would, however, strongly advise against promises to punish those who have benefited from Obama’s order — we shouldn’t make the legal status of millions a back-and-forth political football.  


Simplicity, ladies and gentlemen. You allow your president to blatantly violate the Constitution for X amount of policy/political gain, we will allow one of ours to do the same in the future.  We will do so regardless of what might happen in the courts, or with any shut-down or impeachment threat.

It’s the people’s Constitution. Republican representatives, show the people with actions they don’t need legal or budget-rules expertise to understand, that you stand up for it.

Tags: amnesty , Impeachment , retaliation , Constitution , spine

For Simplicity’s Sake, Pledge to Impeach


In my most recent post (scroll below) I indicated why the using the power of the purse to respond to Obama doing the Big Amnesty executive order would likely be inadequate and confusing.

Back on August first, when Obama began floating his patently unconstitutional, utterly anti-democratic, and deeply polarizing plan, I wrote a piece here called “The Case for Formally Threatening Obama with Impeachment Right Now.”  If you’re going to object to this post in the comments, you may want to read that first, as it provides the full, objection-anticipating, case.  There I laid out the language a formal pledge would employ, in promising to impeach Obama if he does the Big Amnesty order.  There I also provided links to previous impeachment-blogging I had done (on the First Things channel) last December, one of which showed that there is no textual barrier, either in the Constitution or in The Federalist Papers, to impeaching Obama. 

What I envision now would be the Republicans calling for a party meeting and caucus of all Republican House members and all such Representatives-elect, for a one-day debate about, and public vote concerning, such a pledge.  ASAP.

The rationale would be this:  a) if Obama thought he would go down as only one of three presidents to be impeached (we’ll never have the votes in the Senate to convict) that might deter him from doing it, and b) if he goes ahead and does it, it will go down in the record books that the House, and perhaps 55% of the Senate, officially judged it unconstitutional. 

I am not saying this would be the only tool to employ.  The GOP could pursue legal angles, could make Big Amnesty part of a bundle of issues that provokes a money cut-off, and could organize mass protests.  We must want our “Sheriff” to show up to this constitutional crisis not just fingering a single billy-club, but also have a couple guns and plenty of ammo visible on his person.

Nor am I saying that the threatened Big Amnesty is the only aspect of presidential behavior unacceptable, illegal, debatably unconstitutional, and patently unconstitutional that Congress will need to act against.  Several scandals remain to be investigated, for one.  What a pledge would do is to highlight for the public how particularly heinous, constitution-wise, the Big Amnesty plan is.  It would single it out from other violations and disputes, and push the public to consider its opinion on the matter. 

Were a caucus-meeting gathered, obviously we would get polls about how the public feels.  If the immediate opposition to the idea in those polls was overwhelming, the delegates to the meeting could vote the pledge down.  Similarly, if over the period of time between the pledge and the initiation—assuming Obama goes ahead—of actual impeachment proceedings, the public voiced overwhelming opposition, that could be grounds for any representative voting against impeachment.  The pledge would only be to initiate the official process, not to vote one way or the other. 

To keep saying that the public isn’t ready, so don’t propose impeachment, is to never try to ready them.  I said as loudly as I could that it would be wrong for the GOP to pretend to disavow all recourse to it prior to the elections.  I was roundly ignored.  Charles Krauthammer and others announced that any talk of impeachment was insane.  Well, now the elections are won.  So it’s time for Republican representatives to talk honestly about the fact that probably majorities of those who voted for them want impeachment talk, although sure, doing so now is a bit more awkward than it needed to be.

But it is going to keep getting more awkward the longer it is put off.  If Obama gets away with Big Amnesty, with only drawn-out and confusing responses via budget process and legal challenges as the price, he will surely keep issuing unconstitutional orders.  When, oh sage Republican strategists, will it finally become acceptable to threaten impeachment?  If we stomach the four or so obvious violations he has committed so far, mostly to tinker with Obamacare rules, and then Big Amnesty on top of that, will it be at three more?  Ten?  Twenty?  In the summer of 2015?  The winter?  During the heart of the 2016 campaign? 

Simplicity, ladies and gentlemen.  It is what is the most democratic, the most Constitution-following, and compared to all the complex talk of budget-process and close-door bargains, it is indeed a joy.  “This would be a vile sin against the Constitution, and here is the remedy the Constitution itself provides against such.  We pledge, if the president does Big Amnesty, to use that remedy.  If he does it, there will be impeachment proceedings.  Period.”

Say it, and let the people judge.

Tags: Big Amnesty , Constitution , Barack Obama , Impeachment

The New York Times’ ‘Cancel the Midterms’ Rant Is a Call for Monarchy


What the hell is going on at Duke University that a professor of public policy, drawing on the hard-won wisdom of a junior, could write a New York Times op-ed piece that lacks even a junior-high civics-class familiarity with the U.S. Constitution? And who’s minding the rear gate at the Grey Lady’s opinion section that the paper would publish something so shoddy?

You’ll be asking yourself these and other questions after reading “Cancel the Midterms,” a passionate call to return the former (and future?) British colonies in America to a more kingly state. The piece is by Duke professor David Schanzer and student Jay Sullivan (2016).#ad#

The title of the piece is just clickbait for a piece about an election that has Democrats trembling, but Schanzer and Sullivan have a proposal that’s more inane than simply canceling Tuesday’s vote. They want to eliminate the gross injustice of having members of Congress justify their jobs every two years. “There was a time,” they write, “when midterm elections made sense — at our nation’s founding, the Constitution represented a new form of republican government, and it was important for at least one body of Congress to be closely accountable to the people. But especially at a time when Americans’ confidence in the ability of their government to address pressing concerns is at a record low, two-year House terms no longer make any sense.”

Leave aside the lame and unspecific claim that humanity has evolved in some fundamental way in a mere 200 years. (You get no credit for guessing that “hyper-accountability” has been called into being by a magical threesome of buzzwords: “Twitter,” “video cameras,” and “24-hour cable news.”) Instead, parse the logic a little: Schanzer and Sullivan are saying that because voters don’t have enough confidence in their government, they should be given even less control over it.

That would seem to be a problem if you think the country should be serving its citizens. But the professor and the junior don’t actually care about the voters. Their concern is for the leader:

The main impact of the midterm election in the modern era has been to weaken the president, the only government official (other than the powerless vice president) elected by the entire nation. Since the end of World War II, the president’s party has on average lost 25 seats in the House and about 4 in the Senate as a result of the midterms. This is a bipartisan phenomenon — Democratic presidents have lost an average of 31 House seats and between 4 to 5 Senate seats in midterms; Republican presidents have lost 20 and 3 seats, respectively.

The realities of the modern election cycle are that we spend almost two years selecting a president with a well-developed agenda, but then, less than two years after the inauguration, the midterm election cripples that same president’s ability to advance that agenda.

The factual premises of Schanzer and Sullivan’s argument are wrong: Incumbent reelection rates are higher than 80 percent for both chambers of the federal legislative branch. As of 2010, members of Congress got reelected 87 percent of the time, while senators got reelected 84 percent of the time. At best, the proposal to “extend the term of House members to four years and adjust the term of senators to either four or eight years” would change the safety of incumbency by a few percentage points. And it would do nothing to curtail the legislative branch’s heretofore unnoticed power over the presidency, an office whose power has vastly expanded in the last century. The idea that too-frequent elections cause an excess of accountability is simply false. (And by the way, strictly speaking, Schanzer and Sullivan are also wrong that the president is “elected by the entire nation.” In a constitutional nicety that is still with us, the president is elected by the Electoral College.)

The balance of power in the federal government went through an important change just over 100 years ago, though these constitutional experts can’t find room to mention it. In 1913 the Seventeenth Amendment radically restructured Senate elections, taking that authority away from state governments and moving it to a direct vote. Schanzer and Sullivan never consider why the House of Representatives was subject to direct, and more frequent, approval by the voters in the first place, nor do they provide any evidence that subsequent changes to the government have made it necessary to change that — because if they did they would find that subsequent changes have made frequent House elections even more important. According to Federalist 52, the House was designed to be the “branch of the federal government which ought to be dependent on the people alone.”

Duke is not the Harvard of the South (that’s Vanderbilt), so we can’t expect a junior to have much familiarity with Federalist 52, which is attributed to James (or maybe Dolley) Madison. But you would expect the professor to have repaired to the basic documents of American governance. Sure, Schanzer would have had to plow through a lot of old, boring, pointless stuff about old, boring, pointless people who wore wigs. But he would also have found material bearing directly on the case he is trying to make: specifically, that the House was designed the way it was because it was intended to be the most powerful part of the government (i.e., the one that controls taxing and spending), and thus its authority had to be restricted by both frequent elections and openness to “merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”

Madison also addressed Schanzer and Sullivan’s specific concerns about why the voters (who, it bears mentioning, had to go through much more physical inconvenience to vote in the 1780s than we do today) should be subjected to biennial polling: because history furnished numerous proofs that less-frequent elections make it easier for despots to seize more power for themselves:

As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. . . . 

From these facts it appears that the greatest frequency of elections which has been deemed necessary in [Britain], for binding the representatives to their constituents, does not exceed a triennial return of them. . . . 

It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted.

In eliding these points, “Cancel the Midterms” is in tune with contemporary political speech that redefines “checks and balances” as “gridlock,” prejudices any attempts to rein in state power, and denies the existence of arguments against what Schanzer and Sullivan call “the ability of their government to address pressing concerns.” But the piece does provide a useful glimpse at how little regard contemporary political science has for the basics of representative democracy.

This article is obviously the sad product of a classroom colloquy (or “rap session,” as the kids say these days) wherein a stupid question (and there are plenty of stupid questions) inspired the teacher to shop a piece to the destination media and include the student in the byline to appeal to hypothetical Millennials. The 2014 election silly season is drawing to a close, so increasingly loony arguments are to be expected. But in the Richelieuesque purity of their case, the professor and the junior reveal something essential about contemporary good-government types. They don’t want government to be more accountable to the people, because they believe the people are the problem.

— Tim Cavanaugh is news editor of National Review Online. Follow him on Twitter and Facebook.

Tags: Constitution

“Post-Constitution Day” for Tim Kaine and the Senate Democrats


If September 17th was Constitution Day, then the 18th must have been Post-Constitution Day, right? 

Generally I’ve critical of conservative thinkers, such as Mark Levin, when they say we now live in a post-Constitutional order.  I just don’t think that’s accurate, even though we’re rather plausibly on the way there.  But this last Thursday sure provided some uncanny evidence in support of that idea.

Item:  whereas on September 16th, Virginia Senator Tim Kaine published an editorial in the NYT insisting that Obama had to have authorization from Congress to wage war against ISIS, on September 18th, he supported his Democratic Senate colleagues’ decision to delay a vote on the war until after the election!  

This, despite the fact that for many months, Kaine has been talking up his efforts to develop and promote bipartisan legislation, which he calls the War Powers Consultation Act of 2014, that would better allow Congress to resist unilateral attempts by the executive branch to make decisions about war (part of the bill requires a vote after seven days of combat) and peppering this talk with quotations from Thomas Jefferson and James Madison, and effusions of patriotic love for that wise document, the Constitution.  If Tim Kaine is looking for another illustrious quote of old with which to make his case, allow me to recommend these words from a prayer of the younger Augustine:  “Lord, make me chaste!  But not yet!”

Perhaps that is unfair—for a man like Kaine has to work with the Democratic Senate, and the Democratic base, that he’s got.  Time will win them over to his view, and to a more consistent application of his principles. 

But no, that’s not it.  Bottom line:  Kaine could have opposed this.   He could have said, “My colleagues aren’t quite with me yet, and the ISIS situation is indeed a confusing one, but eventually they’ll see that their decision to delay a vote on these war actions was a mistake, that the principle of congressional war-initiation-oversight we’re hopefully going to more clearly enshrine always requires Congress to quickly give an initial yea or nay vote.”  Again, that’s not my constitutional principle, but Kaine’s.  I respectfully disagree with it, but regard it as a classic and more-often-than-not salutary American political belief.  But Kaine made no stand for the principle, but reversed his whole position—at least until after the election—and hoped no-one would notice.  

Item:  whereas by Congressional legislation and Presidential declaration, September 17th has for many years now been celebrated by all government offices as Constitution Day, on September 18th, fifty Democratic Senators, with Tim Kaine among them, voted against a bill’s amendment that would have allowed a congressional vote upon President Obama’s promise to unilaterally issue an unprecedented in scope and baldly unconstitutional amnesty for many millions of illegal immigrants.  

When does Obama promise to do this? After the election, when else?

How would Obama’s promise, if kept, violate the Constitution?  Let us count the clauses. There’s the 1) take-care clause, 2) the presentment clause, 3) the clauses pertaining to the veto, of course understood in the light of judicial rulings that they do not permit line-item vetoes, and finally 4), there’s that pesky clause right at the beginning of Article 1:  “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” But the Senate refuses to even cast a vote upon this promise to steal their own power!

A few hardy souls, such as Eric Posner, have tried to argue that the promised amnesty would not violate the take-care clause, and that the action in is no way de facto legislation.  The embarrassing thing for Democrats, however, is that Posner is an outright Executive-Branch Supremacist, and that his arguments were easily demolished, both by conservative columnist Ross Douthat and by many of the liberal commenters upon his original TNR piece.  But alas, most Americans don’t know the news.  

James Madison, whose wisdom is so extolled by Kaine, wrote in Federalist 51, a document which tens of thousands of teachers have taught to young Americans as representing the truth about their Constitution, that

…the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.

Congress is supposed to resist when the President encroaches upon their powers.  And one would think, the more blatant the encroachment, the greater the resistance.  But for some reason, our congressional Democrats have lost all motive to resist.  One might compare their attitude with that displayed by quite a few Democratic representatives of 1937, when FDR pushed to expand the Supreme Court, albeit by means of completely-constitutional legislation, and lost the vote in the Democrat-dominated Congress handily.  But the Democrats of these latter days resist nothing, and what BHO promises is even worse, being nothing but an unconstitutional substitute for legislation.

And make no mistake, it might alter our system as much as an enlarged Supreme Court would have.  If the Democrats allow Obama to do this, the next Republican president will win acquiescence from his party to his issuing an executive order of similar magnitude and unconstitutionality, perhaps unleashing a tit-for-tat dynamic that becomes a permanent feature of our system, de facto granting every future president some unspecified number of Super-Executive Orders.  A few smart liberals like Jonathan Chait have issued warnings of this kind, but no-one in Democratic political or MSM circles heeds such, not even the rumored-to-exist moderate-minded Constitution-reverencing Democratic representatives, the kind that Kaine aspires to appear to be. 

So, whatever the future holds for us, which I hope and pray will include a return to more serious allegiance to the Constitution, every teacher of Federalist 51 will from now on struggle to respond to a single pungent argument against its reasoning: “But, 2014!” 

It’s all pretty “Scary Stuff,” Senator Kaine.  And I say that after last week, that’s as much your foot trampling the Constitution there as it is Obama’s. Any possibility that you might give us some reassurances to the contrary?  You don’t face election for four years.  Are you going to step up and lead in matters constitutional?  Say, by finally answering questions like this one?  I’m sure those Republicans who take your position on what the Constitution requires with war-powers would like to believe you that you have some level of sincere devotion to the document, before they consider supporting your bill.  I’m looking to the broader future, however,  If you are not, as I think is now apparent, going to be the leader these polarized times call for, might you know of any up-and-coming Democratic stars, who are prepared to more fully assure their non-Democratic brothers and sisters that the Constitution still rules us all?  

You can get back to me anytime.  Even, if you wish, after the election.

Tags: Tim Kaine , Constitution , amnesty , war-powers

Another Day, Another White House Effort to Ignore the Constitution


From the Thursday edition of the Morning Jolt:

Another Day, Another White House Effort to Ignore the Constitution

How many Democrats are beginning to realize what they’ve done, and what kind of man they’ve put in the Oval Office?

Both political parties are in a state of high anxiety about the possibility that President Obama will allow millions of illegal immigrants to remain in the country, fearing that White House action on the issue could change the course of November’s midterm elections.

In the past few days, Democratic candidates in nearly every closely fought Senate race have criticized the idea of aggressive action by Obama. Some strategists say privately that it would signal that he has written off the Democrats’ prospects for retaining control of the chamber, deciding to focus on securing his legacy instead.

Keep in mind, by assuming that he, alone, has the power to legalize millions of people who entered the country illegally, he’s taking another hatchet to the concept of checks and balances in the Constitution.

Just yesterday we learned this White House asserts it can join international treaties that the U.S. Senate will not ratify.

Don’t take it from me; take it from the New York Times staff:

A New York Times reporter who has been fighting off a US government demand that he reveal a confidential source has described the Obama administration as “the greatest enemy of press freedom that we have encountered in at least a generation.”

James Risen, who has been ordered to testify in the criminal trial of a former CIA official Jeffrey Sterling, was speaking at a New York conference, “Sources and secrets” .

He argued that he administration wants to “narrow the field of national security reporting,” and that its prosecutions have created “a de facto Official Secrets Act.”

Or all nine justices of the Supreme Court: “The Supreme Court has ruled in Noel Canning v. NLRB, No. 12-1115, and found that President Obama had indeed violated the constitution in his recess appointment. The decision was unanimous.”

In fact, some of these coming changes come in policy areas where the administration has already lost, 9-0, at the Supreme Court. Let Ted Cruz explain:

The defeats include cases such: as Judalang v. Holder, when the court faulted the Obama team for making an “arbitrary and capricious” attempt to rewrite the rules governing who is eligible for relief from deportation; Henderson ex rel. Henderson v. Shinseki , in which Obama’s lawyers argued wrongly “that the Department of Veterans Affairs can wholly ignore a veteran’s appeal of a VA regional office’s benefits ruling when the appeal was not filed within the 120-day deadline”; and Bond v. United States, in which the “DOJ argued that an international treaty gave Congress the power to create federal criminal law for wholly local conduct.”

“If the Department of Justice had won these cases, the federal government would be able to electronically track all of our movements, fine us without a fair hearing, dictate who churches choose as ministers, displace state laws based on the president’s whims, bring debilitating lawsuits against individuals based on events that occurred years ago, and destroy a person’s private property without just compensation,” Cruz explained.

“When President Obama’s own Supreme Court nominees join their colleagues in unanimously rejecting the administration’s call for broader federal power nine times in 18 months, the inescapable conclusion is that the Obama administration’s view of federal power knows virtually no bounds,” he concluded.


Tags: Constitution , Barack Obama

Obama Unveils New Plan to Work with Foreign Governments to Ignore the Constitution


From the midweek edition of the Morning Jolt:

President Obama’s a big NBA fan, right? What if he’s tanking this year of his presidency because he thinks he gets a better lottery pick in the draft next year?

Obama Unveils New Plan to Work with Foreign Governments to Ignore the Constitution

You know why Obama seems so disconnected and disinterested in the presidency? Because he doesn’t want to be president, he would rather be king:

The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.

In preparation for this agreement, to be signed at a United Nations summit meeting in 2015 in Paris, the negotiators are meeting with diplomats from other countries to broker a deal to commit some of the world’s largest economies to enact laws to reduce their carbon pollution. But under the Constitution, a president may enter into a legally binding treaty only if it is approved by a two-thirds majority of the Senate.

To sidestep that requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions. The deal is likely to face strong objections from Republicans on Capitol Hill and from poor countries around the world, but negotiators say it may be the only realistic path.

“If you want a deal that includes all the major emitters, including the U.S., you cannot realistically pursue a legally binding treaty at this time,” said Paul Bledsoe, a top climate change official in the Clinton administration who works closely with the Obama White House on international climate change policy.

Look at how these people speak. If you cannot get the Senate to ratify a treaty (technically, passing a resolution of ratification), then the United States is not a party to that treaty. Period. Full stop. The Constitution is not iffy on this. This part is not a suggestion. There is no wiggle room.

There are a lot of nonsensical or highly exaggerated chain e-mails accusing the president of working with foreigners to subvert the U.S. Constitution. But this time you’ve got the foreigners and administration officials themselves confirming it on the front page of the New York Times!

“There’s a strong understanding of the difficulties of the U.S. situation, and a willingness to work with the U.S. to get out of this impasse,” said Laurence Tubiana, the French ambassador for climate change to the United Nations. “There is an implicit understanding that this not require ratification by the Senate.”

“The difficulties of the U.S. situation” is a reference the fact that we have a Senate that opposes the treaty.

The Times casually notes that President Obama ignored the legislative process in his domestic climate-change agenda, too:

In seeking to go around Congress to push his international climate change agenda, Mr. Obama is echoing his domestic climate strategy. In June, he bypassed Congress and used his executive authority to order a far-reaching regulation forcing American coal-fired power plants to curb their carbon emissions. That regulation, which would not be final until next year, already faces legal challenges, including a lawsuit filed on behalf of a dozen states.

“ . . . days away from fundamentally transforming the United States of America . . . ”

Tags: Barack Obama , Climate Change , Constitution , Global Warming , United Nations

Scary Stuff


If our president keeps flouting the Separation of P’s,

just what should a good D say? 

Say little, say nothing, or cheerfully reply,


Jonathan Chait writes a piece titled “Obama’s Immigration Plan Should Scare Liberals, Too.”  He supports the policy content of the plan, which would grant “temporary” legal status to up to 5 million illegal aliens, but opposes the manner of its proposed effectuation, which would be an executive declaration followed by non-enforcement of the existing law against those granted the legal status.   For more details on the rumored-to-be-in-consideration plan, which I call “Big Amnesty,” see Ross Douthat’s important editorial against it.  I have noticed only one weak denial that it is in consideration from a White House spokesperson, and there has certainly been no promise from Obama that it is now off the table for good.

Liberals should be scared by this, definitely.  I applaud Chait for saying so.  His piece has a few flaws, however.

First, he never uses the word “unconstitutional.”  Odd, isn’t it?  Well, if you read his piece twice, you’ll notice that Chait actually speaks of this as a debate not about violations of the Constitution, but about violations of nowhere-written-down “norms” of congressional and presidential behavior that he says are needed to maintain our Constitution.  Apparently, none of Obama’s actions (unlike several taken by the Republican House) have so far violated those “norms,” but the Big Amnesty would violate them.  Chait’s framing of things in this way lets him avoid having to say whether Obama’s previous law-suspension actions violated the Constitution or not.  Clever.

Second, his piece is too short, and too drained of passion.  Where are the two-thousand words of outrage against what has been an obscene lack of liberal opposition to this proposal?  Where are the high-toned calls for Democrats to forthrightly support the Constitution?  My self-promoting joking aside, his piece does lack the requisite urgency of tone.  And its timing, coming two-and-a-half weeks after Obama first floated of the Big Amnesty idea, similarly undercuts the feeling that this is something worth being scared about.    

Finally, nowhere in the piece does he demand of Senator Tim Kaine (D-VA) an answer to this simple question posed to him many months ago by a Weekly Standard reporter:  “Are there any parts of Obamacare that the president can’t suspend?”  

I bring it up here, because that question that cuts to the heart of the debate.  I think reporters should be asking every Democratic representative and candidate that question.  For clarity’s sake I’d rephrase it this way:

“Are there any parts of Obamacare that it would be unconstitutional for the president to suspend?”   

Senator Kaine’s response to the question was to dodge it, and to excuse his not replying on the grounds that “he is not a scholar.”  Of course, upon other more complex topics regarding executive power he presents himself as rather scholarly, quite concerned with the Founders’ intentions, and ready to answer all questions of constitutional and legal detail. 

Few Democrats will prove willing to answer the question, because even though it might seem to make intuitive sense to allow a president to make a few minor changes to a very complex law so as to allow its main work to be done effectively, they can find nothing in the Constitution that permits such.  In fact, no non-arbitrary rule for limiting such could be formulated for any constitution.  How few is few?  How minor is minor?  How complex must the law be?  Etc.

Thus, the real answer to the question would either be that 1) our actual politics allow every president as many violations of the Constitution as he or she can get away with in the court of public opinion, so that the “not getting away with it” prospect of Obama’s Big Amnesty plan, and the “Republican presidents might now do the same” prospect are the only really scary things about it, or 2) that presidents can refuse to enforce any parts of any law, up to all parts of said “laws.” 

2) means a Republican president could refuse to enforce Obamacare entirely, and any other law they dislike.  If you accept 2), you accept reducing the separation of powers merely to this:  a president can’t exactly pass a law by himself, but out the mass of federal laws on the books, he can “carve out” via non-enforcement suspensions whatever new legal landscape he wishes.  Such non-enforcement suspensions are de facto vetoes, but are not, like constitutional vetoes, subject to being overridden nor prohibited from being “line-item.”   

I don’t see how this ditching of our Constitution’s basic structure isn’t precisely what Eric Posner advocated last week when he offered one of the only serious defenses of the legality of the president’s proposal.  When the bells and whistles of his argument are removed, it basically boils down to this:  when a president decides Congress is “in gridlock” about an issue he believes is pressing, he may suspend the enforcement of laws as he sees fit to resolve said issue, and public opinion will provide the necessary restraint against unlimited use of this remarkable power.  Eric Posner’s truly scary TNR editorial is here, and Ross Douthat’s reply to it is here.  

But here’s the thing:  forthright scholar that he is, Posner is simply illustrating with clarity and consistency the position on domestic executive power that most Democrats actually now hold, whether they can admit it to themselves or not.  Chait would resist the idea that he has to agree with Posner, and that is to his credit.  But nonetheless, he is in a tricky position, for unlike those, such as the liberal scholar Jonathan Turley, who unambiguously denounced Obama’s various non-enforcement suspensions of 2013-2014 as—there’s that pesky word again!–unconstitutional, Chait’s now opposing the proposed Big Amnesty law-suspension has to be squared with his not opposing the smaller instances of the same type of action.  I’m not a Chait-watcher, but I take it that he either played the ignorance card about those earlier violations, as Kaine did, or if that was too ridiculous for him, tried to change the subject of the debate to one about policy, or to one about abrogation of his posited constitution-supporting “norms.”  But the main question, about whether this proposed action would violate and the earlier actions did violate the Constitution itself, is very easy to answer.  No, the Constitution does not allow a president to repeal laws or parts of laws.  And to say or imply that the “little repeals” are allowed, is to logically endorse larger ones. 

The Democratic Party’s dodging all serious talk about the constitutionality of the little repeals may have invited Obama’s scary Big Amnesty trial balloon; and alas, its continued silence even as that omen of constitution-abandonment malevolently hovers over there on the edge of our current affairs, a silence interrupted only by a few disgruntled noises such as Chait’s piece, indicates that Posner’s “okay, president” position really could become the one that the Democratic Party openly endorses from here on out.

P.S.  Mr. Chait, or sure, Mr. Posner, if you happen to see this, what would your answer be to the question put to Senator Kaine?

P.P.S–UPDATE:  Looks likelier now that Chait’s delayed timing in addressing the Big Amnesty proposal was due to his hearing new indications that Obama is going to do it.  That seems to also be what Mark Krikorian is hearing, who has an excellent piece today that walks you through the constitutional issues he compares Obama’s “little Amnesty” action in 2012, his pre-2012 delaying of enforcement, and pre-Obama era executive grants of temporary status, to the Big Amnesty proposal.  The constitutional issues here are slightly less straightforward than with his suspensions of Obamacare provisions, but Mark helps you sort them out.  The guiding question nonetheless remains, ““Are there any parts of Obamacare, or immigration law, that it would be unconstitutional for the president to suspend?”     

Tags: Jonathan Chait , Tim Kaine , Eric Posner , Constitution

Thoughts on American Liberty


I’m happy to add my praise of Carl’s fine article. I sure can’t think of a more accurate taxonomy of American liberty. For those who haven’t read it (or read his previous PomoCon posts on the subject — not sure if these are available given our recent move), here are his 5 kinds:

  1. “natural-rights liberty”: liberty as the protection of natural rights
  2. “classical-communitarian liberty”: liberty as the self-governance of the local community or group
  3. “economic-autonomy liberty”: liberty as economic individualism
  4. “progressive liberty”: liberty as the social justice of the national community
  5. “personal-autonomy liberty”: liberty as moral individualism

 Here are some points for further discussion.

  1. A libertarian might ask: Really how much distance is there between No. 1 and No. 3?  Is the emergence of  No. 3 caused only by the decline of  No. 2, or is there a substantive philosophic distinction between the two?
  2. No. 4 seems to me to be most at odds with the others.  It is certainly the most destructive of our constitutional framework for limited government and federalism.  Yes, it’s been around now for more than a century, but given its antagonism to #1, #2, and #3, does it really deserve a place at the table?
  3. Is it true that No. 1 was bound to develop into No. 5? Was this development merely prevented or postponed by our pre-modern inheritances and the practice of No. 2, or does Locke’s conception of natural rights contain resources for its own limitation or moderation?  That is, might Locke himself have wanted to stay in the Locke box (it was probably nice and cozy in there . . .)?
  4. What is the place of the Constitution in all of this? Is the ordered, formal liberty of the Constitution a potential sixth category? Or could a “liberty of forms” be a sort of independent variable to graft onto the five kinds? It seems to me that a liberty of forms is related intrinsically to No. 2 and perhaps to No. 1. But No. 4 and No. 5 are hostile to the liberty of forms. Thus the very idea of constitutional government might be abandoned to the extent that 3–5 dominate. Harvey Mansfield once put it this way: “The trouble with modern constitutionalism is that civil liberties and man-made constitutional forms are made subordinate to the natural end of life, liberty, and the pursuit of happiness. They are means to that end, not united with it; the form is not united with the end, as in Aristotle’s constitutionalism. Hence we are willing to jettison our liberal constitutional forms if they do not achieve their end.” Or, to put this problem in the language of another favorite thinker of the PomoCons, Pierre Manent: Modern liberty (especially the hyper-modern version) is suspicious and even dismissive of all “mediations.” Forms — by demanding our participation and/or shaping our behavior with an eye toward others — prevent any individual claim from becoming absolute. But all individual claims now demand immediate recognition (see No, 5).

Tags: Carl Scott , American Liberty , Constitution , Locke

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