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Ron Paul Is Not Leading a Foreign Policy Revolution

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Andrew Sullivan believes that Ron Paul is needed in the GOP race in order to lead a wave of foreign policy change:

But the point of [Paul’s] candidacy is not necessarily to win, but to open up the foreign policy debate. And when you look at the move of the GOP in the last few years away from big government conservatism to a more Paulite view of the role of the state, I think his importance is under-stated. Most of all, he has integrity, even if you think he’s way off the map ideologically. Very few of his rivals have that kind of character. Some of them seem to have had careers and lives that scream out against it. Palin, Gingrich, Trump, and Romney are all obvious liars, positioners and, to a greater or lesser extent, frauds. I’d put Huntsman, Daniels, Santorum, and Johnson in a group as exceptions to this rule. But Ron Paul heads the pack – in consistency, integrity and sincerity.

Steve Kornacki‘s post at Salon reveals what is obvious: that Paul is only a needed candidacy for political junkies:

The biggest winner may be political junkies, who will probably find the coming GOP presidential debates far more interesting with Paul in them, especially when the subject turns to foreign policy. Paul’s appearance on Sean Hannity’s show last night offered a preview of what we can expect. When the subject turned to America’s relationship with the Muslim world, Paul refused to engage in the kind of Muslim-baiting that has become de rigueur for Republican politicians.

Kornacki also is clear on the limits of Paul’s support:

[T]here’s a clear ceiling on Paul’s support. A passionate, not insignificant chunk of the Republican base is receptive to him and his message. But most of the conservative establishment is openly hostile to him, partly because of his adamantly non-interventionist foreign policy views and partly because he can be so easily painted as a fringe figure. Elite conservative opinion-shapers long ago succeeded in marginalizing Paul within the GOP. This point was driven home at CPAC the past two years. Each time, Paul won the annual presidential straw poll (with well under 50 percent of the vote), setting off jubilant cheers from his supporters — and angry boos from just about everyone else in the room. Recall also that Fox News actually blocked Paul from participating in the final GOP debate before the 2008 GOP primary — even though he had just finished ahead of Rudy Giuliani (and tied with Fred Thompson) in Iowa.

The problem that Sullivan doesn’t even attempt to grasp is that in his rush to embrace Paul’s foreign policy ideas, he’s inadvertantly unleashed Paul’s completely idiotic monetary policies on the world. E.D. Kain addressed this earlier today regarding FGary Johnson:

Probably the best argument against supporting Johnson is this: supporting a candidate based on a single-issue alliance is not as effective as supporting a cause.

It’s also more dangerous because if that cause becomes too embodied by that candidate, then the rest of his ideas – like abolishing the Fed, for instance – can then become conflated with the good cause as well. And so you weaken and undermine those ideas by associating them too closely with the bad ideas of the candidate you supported. You see this with Ron Paul, who has very good and decent positions on foreign intervention and the security state, but who is way off in crazy Austrian land when it comes to economics and goldbuggery.

It’s important to build up support for these ideas from the bottom up rather than from the top down. If you want a more anti-war, civil-liberties-based liberalism than you have to argue for it, work with activists to build up grass-roots support for those policies, and vote for local and state candidates who support those ideas. Making a deal with the devil may be a dramatic and appealing way to register one’s dissent, but it’s more than likely counter-productive. A show of support for Johnson’s anti-drug-war policies is just as easily taken as support for slashing public support for healthcare and education, or for busting public sector unions.

I understand Sullivan’s frustration even if I don’t completely share it. He wants a much, much more limited foreign policy has a large blog and still has had little progress in achieving that goal.

But left unsaid by Sullivan is that Ron Paul ran four years ago. In the years since, despite Paul having record money showered upon him, we’ve seen no indication whatsoever that the core of the GOP was changed by that engagement. If anything, they’re worse than ever given the antipathy towards Muslims that Obama’s Presidency has unwittingly revealed. By contrast, a giant part of the GOP is now out to burn the Federal Reserve to the ground metaphorically. Ron Paul is teaching Michele Bachmann about the Fed, not about the war in Iraq. Someone should notice that at some point.

Paul has no say on foreign policy in this Congress, but he does have a key subcommittee post on monetary policy. I watched Paul on the Colbert Report last night, and Paul spent more time taking on the Federal Reserve than talking about foreign policy.

At some point, it’s time to put away niche candidacies, even if you would like the niche, because there are bigger things at stake. I’d like Andrew Sullivan to admit that Ron Paul has doine more harm to America monetarily than good militarily. Find a more responsible candidate if you need drastic foreign policy change. It’s irresponsible to support Paul for that purpose anymore.

More bluntly, it’s time to stop wishing about what candidate Sullivan wishes Ron Paul was and to start looking at what candidate Ron Paul is.

Written by John Whitehouse

April 26, 2011 at 2:48 pm

Whistle Blowing Versus Leaking; Tamm and Manning

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The Department of Justice decided to not prosecute Thomas Tamm for leaking information regarding secret warrantless wiretapping to the New York Times under the Bush Administration.

This reminded me of what Adam Serwer wrote this morning about Bradley Manning, even mentioning Tamm:

I don’t agree with the equivalence some Manning defenders have drawn between Manning and other leakers. Yesterday, Glenn Greenwald wrote that “Once again we find how much we now rely on whistleblowers in general – and WikiLeaks and (if he did what’s accused) Bradley Manning in particular – to learn the truth and see the evidence about what the world’s most powerful factions are actually doing.” There’s a difference between the kind of targeted leaking whistleblowing involves and simply releasing reams of information, which is what Manning is accused of doing. There’s a difference between what Manning is accused of doing and Thomas Tamm, the FBI agent who exposed an unconstitutional warrantless wiretapping program. There’s a difference between what Daniel Ellsberg did when he exposed years of government lies about Vietnam, even if Ellsberg himself doesn’t see it. A targeted leak meant to expose a specific instance of government malfeasance is qualitatively and morally distinct from someone simply exposing volumes of information without regard for what might be in them, even if some of that information ultimately leads to the disclosure of information related to government misbehavior.

None of this is to say that Wikileaks should be prosecuted, an act that would set a disturbing precedent that could endanger the First Amendment rights of all media organizations.  I do however, think if Manning is guilty he should be punished. I don’t mean punished by austere conditions in pre-trial detention, before any level of legal culpability is established, but I do think the government has the authority to go after leakers rather than whistleblowers, and if the accusations against Manning are true he’s the former rather than the latter. Official secrecy should never be used to cover up government malfeasance, but there are some government functions that require secrecy, and those cannot be performed if there is no legal barrier to disclosing that information.

It’s important to get right at what that difference is. The difference is not who it was leaked to – both Wikileaks and the New York Times (in re Tamm and Ellsberg) are media organizations.

The problem is that statutorily sending information to the media is leaking:

Under U.S. law, in simple terms, a “whistleblower” is somebody who reports an employer’s bad conduct to an agency with oversight over the employer. You’re working for a mining company, the mining company is committing safety violations, so you report the violations to the MSHA; or they’re committing environmental violations, so you report the violations to the EPA; or they’re committing wage and hour violations so you complain to the state or federal department of labor. Whistleblower protections come into play, as your employer is not supposed to retaliate against you for reporting their conduct.

Leaking is when you take your employer’s confidential information and you provide it to somebody outside of your organization, usually the media, for the purpose of exposing your employer’s conduct. Leaking is not the same as whistleblowing. Unlike whistleblowing, a statutorily protected activity, leaking is usually going to be tortious and often criminal in nature.

Circumstances arise when the oversight system breaks down or is corrupted, and a frustrated employee leaks information in order to end abuses that won’t otherwise be stopped. There are also times when an employer’s activities are lawful, but the employee is sufficiently offended by those activities or their implications that he chooses to leak them to the media.

Tamm’s and Ellsberg’s targeted leaks were both instances where the oversight system broke down – what they were leaking about concerned the specific concerns of alleged illegal or unconstitutional action that went to the highest office in the land.

That’s just not the case with Manning. He just copied and pasted a whole  trove of State Department Secrets and sent it off. Some were embarrassing to the US, some embarrassing to other countries, some might even have been deserving of targeted leaks, depending on circumstances I’m not really aware of. But that wasn’t what Manning did. Burning down a city isn’t justified because a mass murderer perished in the flames.

Guantanamo and the Executive Branch

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Propublica:

When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.

In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.

Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.

This is an excellent report by Pro Publica (not a surprise, they’re the best around at that). But beyond what Pro Publica reports, we as a society can often be in a rush to make everything a political decision, but sometimes it’s just as simple as a bureaucratic error. While the detention involved presidential decisions, the redaction decisions are of a much lower pay grade. One of them got screwed up, with no easy way to make it right. Regardless of whether detention at Guantanamo or elsewhere was done correctly, poorly, or somewhere in the middle, this situation could still exist.

It’s also hard to jump to conclusions about the impact on the judge when the judge will not say what it was:

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

It is unclear precisely what restrictions or classification requests guided Kennedy’s alterations. Neither the judge nor the Justice Department would say.

Gillers said such editing has an effect on public opinion, even when it doesn’t change the outcome of the case.

There are two competing interests in government redacting: protecting national security and protecting the prosecution. Not surprisingly, both of these institutional interests are alleged:

Officials at other agencies said they had a fairly free hand in removing information supplied for the government’s case. “Whenever a court security officer identifies a document slated for posting on the court’s public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review,” Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.

One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.

Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.

“This censorship has nothing to do with protecting ‘national security’ and everything to do with covering up government mistakes and malfeasance,” said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to “mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo.”

The question is not if both of these interests exist; even if one or both did not, there would at least be a perception of both. The question is how to address them. And the only way to do that is from outside the executive: Congress, the Supreme Court, or ideally both somehow would act in a way to ensure fair procedural safeguards.

The problem is that both institutions have essentially abdicated any responsibilities related to war whatsoever. This has long been the case with the Supreme Court. The laissez-faire attitude peaked in the Korematsu decision that refused to condemn the internment of Japanese-Americans during World War Two. The series of detainment decisions culminating in Boumediene were meaningful but the impacts, as we have seen, have been basically to give far outside limits. And the Congressional action, from the AUMF on, has been absolutely shameful.

My main problem is that for some reason people expect the executive to change this unilaterally. That will never happen. There are four reasons why this won’t happen:

1) No executive is going to be able to completely rid bureaucrats of a desire to protect prosecutors.

2) No president will unilaterally get prosecutors to be more forthcoming on issues of national security, especially when pushing for trust of the national security apparatus is the first thing any new President must do (particularly those with a history of perceived antipathy).

3) Add to this the overwhelming pressure to protect America. No President wants to release the guy who ends up creating the next 9/11 or Cole bombing. Voters would punish that proportionally far more than they would reward a President for releasing someone who the president thinks may just be a mild risk.

4) Presidential leadership on Guantanamo is not the most important variable in change. I thought Jamelle Bouie’s post on this was on the mark:

Yes, Guantanamo closure was a core issue for President Obama, and yes, it was a core issue for his liberal supporters, but it wasn’t a core issue for the Democratic Party, and it needed to be for any chance at success. Given unanimous and vocal Republican opposition to the administration agenda writ large, Guantanamo closure was virtually certain to become a bitter partisan fight. For success, Obama needed a certain level of pro-closure consensus among congressional Democrats. Absent that consensus (and combined with public pressure to the contrary), it was no real surprise to see the White House avoid confrontation: Given limited resources, limited power, and the choice between a hard fight with a small chance of success, and a hard fight with a moderate one, the administration felt best served by investing its resources in the hard fight with moderate chance of success, i.e., health-care reform.

In other words, like Bill Clinton and gays in the military, Guantanamo closure was a high-profile fight that lacked strong support within and outside the party. Obama could have invested further resources in closing the base, but he would have lost ground with health-care reform, stimulus, and other competing priorities. This isn’t to minimize Obama’s failures or the extent to which he has simply embraced large elements of Bush national-security policy, but you can think of an issue like Guantanamo as the price of presidential ambition. When there are many things on the executive plate, some of them have to go by the wayside. This, unfortunately, was one of them.

You can add to this that every electable politician on Guantanamo had the same position as Obama or was much further right (see Romney offering to double Guantanamo). This is why it frustrates me that so many on the left expend all pressure on the matter at Obama, and not on Congress, who is actually 1) pliable and 2) can be changed without massive collateral damage elsewhere.

Obama signed an executive order to close Guantanamo. What happened? The Senate foreclosed any such action by a 90-6 vote. That’s right. Ninety to six.

Until and unless Congress is pushed to engage more on detainee action, the executive will be on an island alone; the Supreme Court will determine the boundaries of that island but little more.

**Edited this post to make clear that the Pro Publica report was -not- politicized.

Written by John Whitehouse

April 25, 2011 at 9:22 pm

Happy Birthday OSHA!!!

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As I sat down for the night, I put C-SPAN on to find a panel from the Center for American Progress earlier today celebrating the 40th anniversary of OSHA. A quick Google news search showed that the only people covering this anniversary were, in fact, CAP itself and the AFL-CIO who had a representative on the panel. It did not even merit a press release from the Department of Labor! There is a OSHA at 40 page… located at the OSHA website. Most of what I’ve found here I found through twitter, not surprisingly.

So what is OSHA? It’s the Occupational Safety and Health Administration, signed into existence by the safest President of them all, Richard Nixon.

Basically, what OSHA does is ensure a safe workplace for everyone. I found these rebuttals of common complaints about OHSA salient. Here’s an excerpt:

3. Speaking of PPE, we never had that junk when I was in the field, and we did just fine.Did I just hear, “We’ve always done it that way?” Or maybe it was, “Real men don’t need that crap.” Think about this: Prior to 1970, there were about half as many workers in the United States as there are today, and there were 14,300 job-related deaths. Today, with a workforce more than twice as large, fewer than 5,000 workers are killed on the job in a year. Comparing relative rates (1970 vs 2008) there are about 82 percent fewer fatalities now than in 1970. That sounds pretty good, unless you consider that 5,214 workers were given capital punishment for the crime of going to work. Doesn’t sound so good, does it? Maybe the good old days weren’t so good.

4. OSHA writes citations that cost me money. How am I supposed to stay in business?Short answer: Maybe you shouldn’t be in business if you can’t protect your workers.

I’d really recommend the entire (short) article.

One last point: amidst all the talk about collective bargaining regarding wages (which is really important) collective bargaining also serves an important function in regards to safety standards. Unions are a major institution advocating for the safety of workers. Without their power and ability to mobilize, literally 6 or 7 thousand people a year would probably be dead because of their line of work.

Moreover, cutting OSHA is a dumb idea. It’s already underfunded. This is something the left should (and is) fighting for. There’s no business where it makes sense over any period of time to take serious safety risks in return for higher profit margins. None. OSHA is something that literally pays for itself, and is fundamental to what America is as a country: not letting people die on the job when simple inspections could prevent it.

We’ve seen attacks on OSHA before. The result? They’re nonsense:

OSHA has been particularly effective when regulating some of our most dangerous industries, which hasn’t stopped the affected employers from vigorously challenging the agency at every turn. Following a series of explosions in grain elevators in December 1977, which caused the deaths of 59 workers, OSHA began the process of developing a grain handling facilities standard that took a decade to put into effect. At the time industry was bitterly opposed. Yet, the National Grain and Feed Association (NGFA), a persistent critic of OSHA, acknowledged in 1998 that the industry had seen “an unprecedented decline in explosions, injuries and fatalities at grain handling facilities.” In 2006, a review by the U.S. Chemical Safety and Hazard Investigation Board reported a 42 percent decline in grain explosions, 60 percent decline in injuries, and a 70 percent decline in fatal accidents. (There are still recalcitrant employers who do not follow OSHA’s guidelines, leading to tragedies like the deaths of Pacas and Whitebread.) Similarly, the passage of the Cotton Dust standard in 1978 lowered rates of “brown lung” among textile workers throughout the country from approximately 12 percent to about 1 percent of all employees.

Despite these successes, business lobby groups and their allies in Congress have hamstrung OSHA’s effectiveness by thwarting tougher standards, restricting its budget, and limiting the number of inspectors. Today, state and federal OSHA agencies combined only have 2, 218 inspectors, and in every state the number of OSHA inspectors fails to meet the benchmark set by the International Labour Organization for the appropriate ratio of safety inspectors to employees.

This year’s headline catching accidents at Upper Big Branch and Deepwater Horizon, and many of the less known tragedies like the deaths of two teenagers in Mount Carroll, were avoidable with stronger laws and more vigorous enforcement. Industry groups have used their significant resources to escape their responsibilities. Now, the US Chamber of Commerce and congressional Republicans are stepping up their attacks on OSHA, recycling many of the same arguments they used 40 years ago. While they claim stronger workplace protections are “job killers,” the unfortunate reality is that it is American workers who are dying every day.

This is what the administrative state does: it slowly but inevitably makes society work better through a responsive, though slow, process. OHSA is just one example of that.

Sadly, that seems the road the right wants to take us on: where John Galt gives some crumbs, and if people die chasing them off a cliff, so be it. The moral repugnance of that cannot be overstated.

Is the Bloc Québécois About To Fall?

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Via Matt Yglesias, stunning news from North America’s frigid third:

Jack Layton is riding high after a pair of polls show the NDP overtaking the Bloc Québécois – a change that would mark a huge transformation of the political landscape if it carried through to election day and was transformed into seats in the House of Commons.

CROP survey published Thursday in the Montreal newspaper La Presse suggests the NDP is the preferred choice for 36 per cent of Quebeckers, compared to 31 per cent for the Bloc. The Tories were at 17 per cent in that poll and the Liberals were at 13 per cent.

And an EKOS Research surveyconducted for the internet news outlet iPolitics suggests that the New Democrats have jumped 10 percentage points since just before last weeks’ leaders debates to 31.1 per cent while the Bloc has dropped to 23.7 per cent.

Meanwhile, a Nanos Research pollconducted for The Globe and Mail suggests that Mr. Layton’s New Democrats are closing in on the Liberals for second place in popular support across the country.

It wasn’t inevitable that this was going to happen now, but this was inevitable sooner or later. The Bloc is in essence a vanity party: a vote for them and secession means that you as a voter literally do not care about any other issue, just secession. And given the past 5 years globally, as well as continuous effects of a conservative governing coalition, at some point it was bound to happen that  people would vote their economic and social interests over a pure protest vote.

As I noted in my previous, lengthy post, Quebec at one point was the heart of the left in Canada. These polls indicate it might be happening again. The NDP is really center left (the liberals are left) but this literally could change everything: if the Bloc loses, then the NDP could have a governing coalition like the left used to.

What makes this really interesting, of course, is that it was the Bloc siding against Harper’s government in a no confidence vote that made this election possible.

Why Our Pundits Are Broken

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Andrew Sullivan on the Ryan Budget:

There are two possible responses to the news that the House has put its votes on the line and endorsed the Ryan plan for the budget. It behooves me to note that I doubted they would ever get this specific, given their refusal to raise any of these specifics in the election campaign. You can gloat that the GOP has committed political suicide by essentially ending Medicare and Medicaid as we know them, but that is not a substantive response. They deserve political props for nailing this proposal to the door of the White House.

But the substantive criticism is still salient. It is that simply shifting Medicare to private insurance plans with subsidies that will mean progressively less and less healthcare for seniors does not really bring down healthcare costs – just shifts their responsibility away from the federal government. The likelihood that the insurance companies will actually want this new more vulnerable population without at some point, begging the government to provide more resources is … well, slim. But since the GOP proposal is simply indifferent to whether people have healthcare or not (they effectively withdraw coverage for all those covered by the ACA), this is a feature, not a bug.

Only a conservative plan would be lauded for it’s boldness politically. No one was saying how much political respect the anti-war Democrats deserved a decade ago; indeed, the likes of Sullivan called them fifth columnists.

But the same is true even more recently: no pundit praised the public option the House passed (or the even more progressive robust public option) as brave politically. No, they called them just plain stupid and political non-starters. And that’s what the House passed! Exactly what we have here!

But now that someone proposes a plan to make – as Sullivan himself describes it – “progressively less and less healthcare for seniors,” pundits such as Sullivan himself are falling over themselves to praise it for being bold and brave even when they disagree. None of these pundits gave the same deference to Nancy Pelosi. None. The closest was Sullivan saying the public option was wildly popular and then meekly saying the death of it made the bill move more right and be suddenly palatable. Not at all comparable.

There is no boldness, no bravery in failed policy, left or right. Dennis Kucinich proposed a Department of Peace: that’s not brave.

Ask yourself this question: why is not political criticism the same thing as substantive criticism? Ought they be the same?

Written by John Whitehouse

April 16, 2011 at 8:56 pm

The Supreme Court Cannot Solve Everything

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President Obama made a signing statement refusing to let Congress dictate who he can and cannot hire. In the words of Kevin Drum, Obama “thinks that Congress has no right to tell him who he can and can’t consult in the Office of the President. So he signed the bill but added a signing statement telling Congress to piss off.”

Drum adds that:

Actually, I’m curious about something here. When Congress and the President disagree about something like this, it’s up to the Supreme Court to adjudicate. But how does that usually work? Does the president abide by the law but sue in federal court to have it overturned? Or does he break the law and wait for someone to sue him? What’s the usual historical precedent?

Well, there’s not a lot of historical precedent, because first, the Supreme Court from the very beginning of the country refused to offer advisory opinions. Here’s what the Jay Court said:

The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

This is especially relevant to this particular issue: the Courts only get involved when there is an actual issue, but moreover, the Constitution really does give the President all the executive power, including consulting who he may.

But this also means the Courts can’t just solve this generally: there needs to be an actual court case of someone suing for something. It’s unclear who would or could do that here.

The one example of when the Court did step in is in Marbury v. Madison, which is probably the most important case in the history of our country, so I can’t sum it all up succinctly. But here goes: Marbury did involve is a specific person – the eponymous Marbury, who was given a judicial appointment by Adams; that appointment was rescinded by Jefferson before the actual appointment was delivered. And even in that case, John Marshall found that while Marbury had a right to the appointment, the judiciary had no right to enforce it, because the mandamus statute was unconstitutional. But a part of that decision was also the birth of the political doctrine which is very relevant here:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

Here, the czars have not had any other duties imposed on them by Congress. Not one. They solely provide advice and guidance to the President and his/her staff on areas of expertise. The Republican fetish of eliminating the czars is directly and clearly against the most fundamental court decision in the history of our country. This is exactly the sort of gross Congressional overstepping that calls for a signing statement. Neither party in Congress has the Constitutional ability to limit the advice the President receives.

The entirety of history of Congressional right to confirm people refers to officers who have official duty. What we have here is a hypothetical that not even Marshall thought Congress would resort to: limiting who the President can merely look to for policy advice without any additional responsibility. It’s not the Constitution’s fault that the czars annoy Republicans.

What’s important to realize (and I think Drum does) about the czars is that they do not give the President any additional power. Van Jones or whoever is just an outside advisor, that the President feels better to keep in house rather than call regularly. But the Constitution gives the executive carte blanche authority on whom he can consult with.

But it’s important to realize is that under no realistic scenario is this going to go to the courts, short of someone actually depriving the czars from receiving a paycheck which they then sue for. This is not a problem for the court system. This is for Congress and the executive to work out alone.

UPDATE: Via a Balloon Juice commenter, Barack Obama also said, “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.” It’s patently obvious to me this falls in the former category of valid signing statements. This signing statement does not expand executive power, it just protects the ability to hire advice as he sees fit. That’s been a protected Presidential ability as long as the office has existed.

Written by John Whitehouse

April 16, 2011 at 12:23 pm