Commentary Magazine


Posts For: January 25, 2013

RE: Obama’s Power Grab Slapped Down

As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.

All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.

After Congress has adjourned sine die, the President can only call it back into session.

Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.

Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.

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As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.

All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.

After Congress has adjourned sine die, the President can only call it back into session.

Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.

Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.

It will be far more constrained than the power such presidents as Eisenhower and George W. Bush exercised. Indeed, since Congress is now in session most of the year, unless the vacancy occurs in the month of December, after Congress has gone home for the year, he no longer has any recess appointment power.

Serves him right.

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Where’s the Outrage on Morsi’s Hate?

As we noted last week, Egyptian President Mohammed Morsi’s attempt to explain his anti-Semitic and anti-American televised rant to a group of visiting American senators was that his claim that Israelis were “the descendants of apes and pigs” was taken out of context. That was bad enough but as it turns out the first reports about the meeting fell far short of conveying just how offensive Morsi’s rationalization of hate was. As Josh Rogin reported yesterday at Foreign Policy’s blog The Cable, Senator Chris Coons of Delaware who was at the meeting said the Morsi implied that Jewish control of the media was the reason why he was being called to account for his hate speech.

This calls into question not just the continuing U.S. aid to the Muslim Brotherhood government headed by Morsi but the determination of the senatorial delegation, including its leader John McCain, to continue their support for the flow of more than a billion dollars in American taxpayer money to a hatemonger. The details of the meeting make it hard to understand how McCain could continue to justify such American support when the explanation for the Morsi rant is actually worse than the original anti-Semitic smears.

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As we noted last week, Egyptian President Mohammed Morsi’s attempt to explain his anti-Semitic and anti-American televised rant to a group of visiting American senators was that his claim that Israelis were “the descendants of apes and pigs” was taken out of context. That was bad enough but as it turns out the first reports about the meeting fell far short of conveying just how offensive Morsi’s rationalization of hate was. As Josh Rogin reported yesterday at Foreign Policy’s blog The Cable, Senator Chris Coons of Delaware who was at the meeting said the Morsi implied that Jewish control of the media was the reason why he was being called to account for his hate speech.

This calls into question not just the continuing U.S. aid to the Muslim Brotherhood government headed by Morsi but the determination of the senatorial delegation, including its leader John McCain, to continue their support for the flow of more than a billion dollars in American taxpayer money to a hatemonger. The details of the meeting make it hard to understand how McCain could continue to justify such American support when the explanation for the Morsi rant is actually worse than the original anti-Semitic smears.

According to Coons:

“He was attempting to explain himself … then he said, ‘Well, I think we all know that the media in the United States has made a big deal of this and we know the media of the United States is controlled by certain forces and they don’t view me favorably,'” Coons said.

The Cable asked Coons if Morsi specifically named the Jews as the forces that control the American media. Coons said all the senators believed the implication was obvious.

“He did not say [the Jews], but I watched as the other senators physically recoiled, as did I,” he said. “I thought it was impossible to draw any other conclusion.”

“The meeting then took a very sharply negative turn for some time. It really threatened to cause the entire meeting to come apart so that we could not continue,” Coons said.

Multiple senators impressed upon Morsi that if he was saying the criticisms of his comments were due to the Jews in the media, that statement was potentially even more offensive than his original comments from 2010.

“[Morsi] did not say the Jewish community was making a big deal of this, but he said something [to the effect] that the only conclusion you could read was that he was implying it,” Coons said. “The conversation got so heated that eventually Senator McCain said to the group, ‘OK, we’ve pressed him as hard as we can while being in the boundaries of diplomacy,'” Coons said. “We then went on to discuss a whole range of other topics.”

This raises some serious questions about both U.S. policy and the priorities of those who took part in the meeting.

One has to wonder why it is that a week went by without any of those present at the meeting calling out Morsi for this latest outrage. Did those who kept quiet about this, including McCain, think that Morsi raising the issue of unnamed groups — an obvious reference to Jews — manipulating the media was immaterial to the question of whether U.S. aid to Egypt should continue? Or did they decide that it was unhelpful to their goal of maintaining the U.S. embrace of the Brotherhood for this story to get out sooner?

This revelation makes it imperative that all those present clarify their positions about a policy that requires American taxpayers to go on funding a government that is beginning to rival Iran as a source of anti-Semitic invective. Under Morsi, Egypt is neither a U.S. ally nor a friend. It is a tyrannical regime that has not only subverted the promise of the Arab Spring but also has the potential to be a major source of instability in the region.

If Morsi wants to keep his American money, he’s going to have to do better than to blame his problems on the Jews. And if the senators who attended this meeting and the administration that is determined to keep coddling the Brotherhood wish to justify their position, they are going to have to explain to the American people how giving billions to Morsi is compatible with our values or interests.

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Will Obama Sabotage Immigration Deal?

Eight years after Congressional opponents pronounced President George W. Bush’s immigration reform plan dead on arrival, there appears to be a real opportunity that a far-reaching proposal on the subject will pass the Senate.  As the Washington Post reports, a working group of senators, including heavy hitters from both sides of the aisle, are close to an agreement on the principles for changing the country’s immigration laws. According to the Post, the proposal, which could be announced as early as a week from today will include the following:

The working group’s principles would address stricter border control, better employer verification of workers’ immigration status, new visas for temporary agriculture workers and expanding the number of visas available for skilled engineers. They would also include a call to help young people who were brought to the country illegally as children by their parents become citizens and to normalize the status of the nation’s 11 million illegal immigrants.

The plan, which is the result of talks including Democrats Robert Menendez, Richard Dubin, Charles Schumer, Michael Bennett and Republicans Marco Rubio, Lindsay Graham, John McCain and Jeff Flake. While there are still some disagreements to be ironed out since Rubio believes that illegals should have to wait for citizenship until those who arrived legally are accommodated while Democrats disagree, this may be the best chance to pass a bill dealing with the problem in decades. But there is one potential obstacle: President Obama.

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Eight years after Congressional opponents pronounced President George W. Bush’s immigration reform plan dead on arrival, there appears to be a real opportunity that a far-reaching proposal on the subject will pass the Senate.  As the Washington Post reports, a working group of senators, including heavy hitters from both sides of the aisle, are close to an agreement on the principles for changing the country’s immigration laws. According to the Post, the proposal, which could be announced as early as a week from today will include the following:

The working group’s principles would address stricter border control, better employer verification of workers’ immigration status, new visas for temporary agriculture workers and expanding the number of visas available for skilled engineers. They would also include a call to help young people who were brought to the country illegally as children by their parents become citizens and to normalize the status of the nation’s 11 million illegal immigrants.

The plan, which is the result of talks including Democrats Robert Menendez, Richard Dubin, Charles Schumer, Michael Bennett and Republicans Marco Rubio, Lindsay Graham, John McCain and Jeff Flake. While there are still some disagreements to be ironed out since Rubio believes that illegals should have to wait for citizenship until those who arrived legally are accommodated while Democrats disagree, this may be the best chance to pass a bill dealing with the problem in decades. But there is one potential obstacle: President Obama.

The question facing Senate negotiators this weekend is whether their hard work crafting a bipartisan compromise will be blown up by the president’s determination to exploit the issue for political purposes. Though he has said that immigration reform is a priority, the senators may be holding their breath this weekend to see if Obama’s scheduled speech in Las Vegas next week will reinforce their efforts or making it more difficult for Republicans to work with the Democrats on the legislation.

Though the president spent most of his first term posing somewhat disingenuously as an advocate of balanced approaches on the issues and working for bipartisan consensus. But since his re-election he has dropped that pretense and adopted a more straightforward strategy aimed at demonizing Republicans and branding them as extremists. Since he knows it is more in the interests of his party to ensure that Hispanics believe all Republicans are enemies of immigrants than to pass a common sense bill, it would be entirely in character for him to spend the upcoming weeks blasting the GOP on the issue rather than piping down just at the moment when a deal is in the offing.

Rubio’s work in paving the way for Republican acceptance of a reform bill has been exemplary. As the Huffington Post reported, Rubio has taken to the airwaves speaking on conservative talk shows and has, surprisingly, received a good reception even from heretofore-staunch opponents of any solution other than the fantasy of deporting 12 million illegals. With the support of other conservatives like Paul Ryan, his initiative stands a good chance of passing in the House, provided the Senate has already adopted it.

But even Democrats are worried that Obama’s slash and burn tactics will turn immigration into a partisan issue and make it impossible to carry through both Houses of Congress.

As the Post notes:

Some Democrats in the House, including Rep. Luis V. Gutierrez (D-Ill.), have cautioned that the White House could harm the bid for bipartisan support if it acts too aggressively by authoring its own legislative proposal.

But left-wing activists whose primary purpose is to recruit Hispanics to vote for the Democrats aren’t the least interested in Gutierrez’s legitimate concerns. Rather than urging, as they should, that Obama stand aside and let this be a bipartisan compromise, some union hacks like the Service Employees International Union’s Eliseo Medina are egging the president on to grandstand on the issue.

Rubio has been making progress towards persuading conservatives that their worries about “amnesty” are wrongheaded since the existing mismanaged and inefficient system neither protects our borders nor deals fairly with immigrants. He’s right. Republicans should understand that the current mess harms our economy and undermines support for the rule of law. A bill along the outlines that the Senate group is working on is long overdue. Bringing undocumented aliens into the system is good public policy and it is also good politics for Republicans who need to stop playing the anti-immigrant card as Mitt Romney did last year.

But after years of advocating for genuine compromise with Republicans on tough issues, it’s by no means clear whether the president has any interest in seizing a chance to pass immigration reform if it means a bipartisan deal.

The president said last week that he’s not to blame for the lack of communication between the White House and Congress. But the fiscal cliff agreement brokered by Vice President Biden illustrated that his boss was neither interested in nor capable of working with Congress. At times, the president seemed to be working to undermine the deal that eventually passed with inflammatory rhetoric intended to make conservatives dig in rather than to bend a bit. Should the president continue to play partisan politics on immigration just at the moment when he ought to be working quietly behind the scenes to get Republicans on board, it will be the immigrants who will suffer. If immigration reform fails again this year, the likely culprit will not be a faction of conservative hardliners but a liberal president more interested in exploiting Hispanic fears than getting a bill passed.

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The Sore Loser Electoral College Plan

Could a change in the way states allocate their votes in the Electoral College have changed the outcome of the 2012 presidential election? The answer to that question is generating outrage among Democrats over schemes that are currently under consideration in Virginia and some other states. That’s because had every state in the union discarded the winner-take-all rule currently used in all but two and instead employed one in which each Congressional district would be an individual contest, Mitt Romney might have earned a slim victory despite losing the popular vote.

Nebraska and Maine currently divide their votes in this manner giving both major parties a chance to win individual districts. That is each state’s prerogative since there is nothing in the Constitution saying that the winner-take-all rule is sacred. But in 2012, when President Obama won a narrow majority in the popular vote but a decisive victory in the Electoral College, allowing such splits would have created an anomalous outcome since the president’s win was predicated on his sweep of virtually every closely-fought battleground state in which he ran up big vote totals in urban areas while losing rural counties. That’s leading Democrats to call the plan to change the system in Virginia, which Obama won by a razor-thin margin, a “sore loser” scheme that is a GOP effort to subvert democracy.

Even though Republicans in some states have been talking about this issue for years, coming on the heels of their 2012 loss, it’s hard to argue that the sore loser tag doesn’t apply. Indeed, though their plan has its virtues, the idea of changing the rules in order to skew the results a bit more in their favor instead of working on issues and producing candidates that will win on their own merits sounds like exactly the sort of foolish thing Republicans ought to be avoiding as they ponder how to do better in 2016. Nevertheless, though the plan creates some bad optics for the GOP, even its Democratic critics should admit that it is neither crazy nor essentially undemocratic.

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Could a change in the way states allocate their votes in the Electoral College have changed the outcome of the 2012 presidential election? The answer to that question is generating outrage among Democrats over schemes that are currently under consideration in Virginia and some other states. That’s because had every state in the union discarded the winner-take-all rule currently used in all but two and instead employed one in which each Congressional district would be an individual contest, Mitt Romney might have earned a slim victory despite losing the popular vote.

Nebraska and Maine currently divide their votes in this manner giving both major parties a chance to win individual districts. That is each state’s prerogative since there is nothing in the Constitution saying that the winner-take-all rule is sacred. But in 2012, when President Obama won a narrow majority in the popular vote but a decisive victory in the Electoral College, allowing such splits would have created an anomalous outcome since the president’s win was predicated on his sweep of virtually every closely-fought battleground state in which he ran up big vote totals in urban areas while losing rural counties. That’s leading Democrats to call the plan to change the system in Virginia, which Obama won by a razor-thin margin, a “sore loser” scheme that is a GOP effort to subvert democracy.

Even though Republicans in some states have been talking about this issue for years, coming on the heels of their 2012 loss, it’s hard to argue that the sore loser tag doesn’t apply. Indeed, though their plan has its virtues, the idea of changing the rules in order to skew the results a bit more in their favor instead of working on issues and producing candidates that will win on their own merits sounds like exactly the sort of foolish thing Republicans ought to be avoiding as they ponder how to do better in 2016. Nevertheless, though the plan creates some bad optics for the GOP, even its Democratic critics should admit that it is neither crazy nor essentially undemocratic.

The Electoral College already gives an unfair advantage to small states that are always overestimated in Congress since each gets at least one member of the House and two in the Senate (the number of Electoral College votes each state gets is determined by their total of members in the House and Senate). But though the College rarely produces a result at variance with the national popular vote (as it did in 1876 and more recently in the Bush-Gore fiasco in 2000) it does tend to distort most results as it did again in 2012 when it gave Obama a much bigger win than his share of the popular vote would have dictated (332-206 in the College while only 51-47 in the popular). In that sense, opposition to the GOP scheme exposes many Democrats to the charge of hypocrisy since they spent most of the last year carrying on about any possible threat to the one-person, one-vote rule.

Since all Congressional districts are supposed to have approximately the same populations the new system if applied nationwide ought to allow the Electoral College to more closely mirror the popular vote around the country.

Changing the system to allow the votes of more Americans to count in the Electoral College is a move toward more democracy not less. It would also force the parties to abandon a practice of active campaigning only in swing states and force them to fight and to spend money everywhere. That means Democrats would be encouraged to compete in red states in the South and Middle West while Republicans would no longer ignore large blue states like New York and California.

But when applied to some individual states, there’s no question that it would help the GOP. President Obama’s ability to run the table in swing states was the function of his big wins in cities while losing rural districts. Romney won seven of the 11 Congressional Districts in Virginia and 11 of the 16 districts in Ohio while both states and the election.

In our current political environment in which Democrats have a stranglehold on large states such as California, New York and Illinois, the winner-take-all rule gives them a big advantage. It is true that the same change would give them a share of a large red state like Texas that they wouldn’t currently get but they would certainly be the losers in the exchange.

Assuming that elections in the future will be dictated by the politics of our present day is always a mistake. So it would be a mistake for either party to decide its position on the future of the Electoral College based on past votes. In particular, Republicans might want to think about the possible perils of changing the system before 2016 when it is entirely possible that they will be able to nominate a candidate who might win the swing states that Romney lost. Democrats may assume that demography will dictate that they will never again lose states like Virginia, Florida, Pennsylvania or Ohio but the GOP should think twice about taking votes that a candidate like Marco Rubio or Chris Christie might win and giving them to the Democrats.

In principle, there is nothing undemocratic about allocating Electoral College votes by district rather than by states. And Democrats who never complained about Nebraska or Maine having such a system are in no position to claim it is wrong for Virginia to adopt it. But since it might have prevented Obama’s re-election in a way that most Americans would have thought unfair, Republicans should not allow themselves to be seen as working to game the system in such a way as to thwart the will of the majority. If Republicans want to eliminate the unfairness baked into the Electoral College system, they can advocate scrapping it altogether. Anything short of that is not going to do them or the country a bit of good in the long run.

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Obama’s Power Grab Slapped Down

President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.

Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.

Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.

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President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.

Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.

Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.

The administration will most likely appeal to the Supreme Court. But that Court could let the lower court’s decision stand simply by refusing to grant a writ of certiorari, which is necessary to appeal most cases to the high court. The fact that the ruling from a three-judge panel was unanimous greatly increases the chances that the court will not “grant cert,” to use the jargon of the court.

Assuming this decision stands, all the decisions of the NLRB since January 4th, 2012, will be void. His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall.

Presidents have increasingly used recess appointments to get around Senate obstruction, usually a filibuster. But this use of the power was brazen as Obama had only just nominated the men and the Senate had not had any time in which to act.

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Jindal’s Populist Manifesto Has a Problem

Louisiana Governor Bobby Jindal made some headlines with his speech to the Republican National Committee yesterday in which he called out the GOP as having behaved like “the stupid party” in 2012. He is hardly alone in considering the infamous cracks of Todd Akin and Richard Mourdock about rape and pregnancy to be classic examples of stupidity but the main point of his address wasn’t about the perils of nominating idiots for Senate seats. Instead, Jindal put forth a manifesto about how to revive conservatism in the age of Obama. His formula is deceptively simple: opt out of a rigged game focused on how to balance the budget and replace it with a populist approach in which big government is the target.

The idea is a powerful message and is exactly what the Republican grass roots wants to hear, especially the part in which the Washington is put down and state and local governments, such as the one Jindal leads, are lauded. He’s right that the current debate in the Capitol over things like the debt ceiling and the fiscal cliff is being fought on the Democrats’ terms and has, predictably, led to GOP defeats. Jindal is also right that Republicans ought to be more interested in growing the economy than in enforcing austerity. But as much as his talk sounded like a winning approach to the 2016 presidential primaries in which he may be a serious competitor, the problem for his party is that opting out of the current debates on the debt and the budget is easy if your office is in located in Baton Rouge. It’s not an option for a House Republican caucus that remains the only real obstacle to President Obama’s plans for higher taxes and more spending in the next four years.

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Louisiana Governor Bobby Jindal made some headlines with his speech to the Republican National Committee yesterday in which he called out the GOP as having behaved like “the stupid party” in 2012. He is hardly alone in considering the infamous cracks of Todd Akin and Richard Mourdock about rape and pregnancy to be classic examples of stupidity but the main point of his address wasn’t about the perils of nominating idiots for Senate seats. Instead, Jindal put forth a manifesto about how to revive conservatism in the age of Obama. His formula is deceptively simple: opt out of a rigged game focused on how to balance the budget and replace it with a populist approach in which big government is the target.

The idea is a powerful message and is exactly what the Republican grass roots wants to hear, especially the part in which the Washington is put down and state and local governments, such as the one Jindal leads, are lauded. He’s right that the current debate in the Capitol over things like the debt ceiling and the fiscal cliff is being fought on the Democrats’ terms and has, predictably, led to GOP defeats. Jindal is also right that Republicans ought to be more interested in growing the economy than in enforcing austerity. But as much as his talk sounded like a winning approach to the 2016 presidential primaries in which he may be a serious competitor, the problem for his party is that opting out of the current debates on the debt and the budget is easy if your office is in located in Baton Rouge. It’s not an option for a House Republican caucus that remains the only real obstacle to President Obama’s plans for higher taxes and more spending in the next four years.

Jindal’s populist battle plan in which the GOP declares itself in opposition to everything that is big including government, labor unions and business is smart politics and takes the party back to its Reaganite roots. He’s also right in understanding that conservatives win when they fight elections on the broad principles of limited government, federalism, lower taxes, individual rights and use Washington as their piñata instead of being pinned down on just how much of the entitlement state they are willing to retain.

Divided government is frustrating for both sides but especially for a Republican party that has the shorter end of the stick in Washington. With a strident ideological liberal in the White House and a Democrat-run Senate there is no way the GOP-led House can enforce its will on the other two. Ironically, while Jindal’s ideas for a wholesale cutback in the size of government would seem to be in line with the views of the most hard-line Tea Party conservatives in Congress who are adamant about not being co-opted into supporting more debt, his call for the party to avoid being entangled in conflicts about the budget seems in line with more moderate party members who want to punt on those issues. The point is, if you believe, as Jindal does, that the federal government is too big and too powerful, then how do you manifest that opposition to the president’s agenda other than by taking a stand in Congress on those issues even if that puts you in, as he rightly says, a rigged game?

Jindal’s principles are sound as is his political advice to the party. He’s right that they must go big in terms of ideas while avoiding the Democrats’ traps that could lead to unpopular government shutdowns. But the problem for Republicans is that 2016 is a long way off. They need to do more in the coming months and years than to tread water while thinking deep thoughts about a vision for the country’s future in that time. The Louisiana governor’s approach makes sense in the long term but embattled Republican members of the House and Senate may be forgiven for wondering if he has any ideas that will help them stand up to Obama’s full court press on the Hill while he is making friends in Iowa and New Hampshire.

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