Commentary Magazine


Topic: U.S. Constitution

Is Obama Conceding the Senate to the GOP?

For some advocates of more liberal immigration laws, the next month may be the most crucial in recent history. As Rep. Luis Gutierrez told the Washington Post, President Obama “is going to determine his legacy with the immigrant community in the next 30 days.” But while most members of the president’s party are ready to cheer executive orders bypassing Congress that will effectively legalize millions of illegal immigrants, those Democrats facing tough reelection fights know such moves will effectively decide the 2014 midterms.

Read More

For some advocates of more liberal immigration laws, the next month may be the most crucial in recent history. As Rep. Luis Gutierrez told the Washington Post, President Obama “is going to determine his legacy with the immigrant community in the next 30 days.” But while most members of the president’s party are ready to cheer executive orders bypassing Congress that will effectively legalize millions of illegal immigrants, those Democrats facing tough reelection fights know such moves will effectively decide the 2014 midterms.

The president signaled back in June that he would use Congress’s failure to pass a comprehensive reform bill as an excuse to act on his own to address the problems in the immigration system. No details of the planned moves have yet been released but, as the Post reports, many on both the left and the right anticipate that the executive orders will indefinitely delay deportation for millions of illegal immigrants already in the United States and to provide green cards for relatives of U.S. citizens. That means that those illegals who have had children since arriving in the United States would effectively be granted legal status, raising the total of those granted a form of amnesty by these measures to encompass the vast majority of those here without permission.

While opponents of immigration reform blanched at any measure that would grant illegals the right to stay in the country, let alone a path to citizenship that a green card would give them, these unilateral moves are far worse than anything contained in the bipartisan bill that was passed by the Senate but blocked in the House. That bill put heavy penalties on the illegals and forced them to the back of the line for citizenship while also heavily reinforcing security at the border. But Obama’s unilateral plans really would be a form of amnesty without any real penalty or action to prevent another wave of illegal immigration.

This is terrible policy since, as this year’s crisis at the border demonstrated, even the president’s past statements about letting illegals stay has generated a massive influx of new migrants who believe that once they get across the border by any means they won’t be sent home even if they are caught. Enacting such a measure unilaterally at the whim of the president rather than through congressional action would further undermine the situation at the border as well as undermine the rule of law.

You don’t have to oppose immigration reform to recognize the problem here. All recent presidents have used executive orders and, in fairness to Obama, his predecessor George W. Bush used the tactic extensively when it suited him. But there is a difference between chipping away at the margins where presidential authority is already established and the White House simply governing on its own as if congressional approval of legislation is a mere technicality that can be waived if the president is really sure that justice is on his side.

The notion that the president has the right or even the duty to act on his own in this fashion because the House refused to pass an immigration bill turns the Constitution on its head. Acting in this manner would trash the checks and balances of the American system and establish an essentially anti-democratic precedent in which any president could flout the will of Congress and the Constitution if he didn’t get his way.

But the danger here is not just to the Constitution. If the president decides to push ahead with these measures in the months before the midterms, he may be effectively writing off the already diminishing odds of his party holding onto the Senate. For beleaguered red state Democratic incumbents like Mark Prior in Arkansas, Mary Landrieu in Louisiana, Kay Hagen in North Carolina, or even a purple state senator like New Hampshire’s Jeanne Shaheen, executive orders on immigration will feel like a stab in the back from the White House.

Concerns over illegal immigration were already a potent issue for Republicans in states where Hispanic voters—who are more sympathetic to undocumented immigrants—aren’t a major factor. But if the president does an end run around the Constitution in order to enforce his will on immigration it will be a disaster for endangered Democrats. Candidates like the aforementioned incumbents as well as Alison Grimes, who is providing the president’s party with one of its few shots at knocking off a Republican senator, are already trying to run away from Obama. Republicans are already favored to take control of the Senate. But with a few strokes of his pen, the president could ensure a far larger GOP majority next year than most pundits are now envisioning.

If Republicans play this right, they could ride Obama’s extra-constitutional behavior to a repeat of their 2010 landslide. But there’s also the chance that conservatives could play into the president’s hands and sabotage their chance to emerge in November with control of both Houses of Congress. In my next post, I’ll discuss the possibility that the president’s decision is actually a cynical effort to entice the GOP to try another futile government shutdown or impeachment.

Read Less

Obama’s Lawless, Heartless Climate Treaty

Can President Obama force through a new international climate change treaty without a vote in the Senate, as the Constitution requires? The administration thinks it can. But while conservatives will correctly cry foul about this deceit, liberals should be just as angry about the way the terms of this lawless proposed pact hurts poor Third World nations.

Read More

Can President Obama force through a new international climate change treaty without a vote in the Senate, as the Constitution requires? The administration thinks it can. But while conservatives will correctly cry foul about this deceit, liberals should be just as angry about the way the terms of this lawless proposed pact hurts poor Third World nations.

As the New York Times reports, the administration is so determined to forge a new deal with other countries to limit carbon emissions that it is prepared to ignore the Senate, even though the Constitution clearly states that any treaty must be approved by a two-thirds vote in the U.S. Senate. Their solution is to sign what they are calling a “politically binding” rather than “legally binding” pact whose purpose will be to strong-arm countries into curbing economic development to conform with the belief that this is harming the planet. Nations will be required to enact climate change laws while pledging to observe “voluntary” emissions cuts while also funneling money to compensate poor nations whose attempts to create economic development will be halted by the climate change craze.

Both the administration and some of its European partners in this scheme believe they can get away with this sleight of hand by concocting a document that combines a restatement of existing U.S. treaty commitments dating from 1992 with new, supposedly voluntary pledges. This will, they think, allow them to evade U.S. law and commit the U.S. to an international accord without the benefit of congressional approval.

As one advocate of the plan told the Times, this is a tactic involving “legal and political magic.” A more honest way of evaluating it would be to say that it is a barefaced attempt to circumvent the Constitution and allow the president to govern by fiat rather than benefit of law.

While Republicans have been rightly grousing about the way the president used his power to act via executive orders on domestic issues, when it comes to climate change he had the authority to do so because of court rulings that allowed the Environmental Protection Agency to regulate carbon emissions without congressional oversight. But this is something very different and far more dangerous. By seeking to negotiate and sign a treaty with foreign powers without submitting these agreements for Senate approval, President Obama is deliberately flouting the law. The talk about the “voluntary” nature of the provisions of the treaty—a dubious description due to the economic leverage that the great powers would have over small countries under this international emissions regime—is nothing more than a transparent legal evasion.

While initiating a lawsuit to stop this treaty may be tricky because it won’t be clear who will have legal standing to challenge the deal, it is to be hoped that the courts will take a dim view of this sort of one-man rule. While the president may say he has no choice but to act on his own because of congressional opposition, this is exactly the sort of reasoning used by dictators to justify their doing away with democratic norms. Whether you agree with Obama on environmental issues or not, all Americans should be worried about an administration that believes that its belief in the urgency of an issue ought to allow it to trample the law in such a shameless manner.

The threat posed to the Constitution and the rule of law by the president’s tactics ought to be enough to generate bipartisan opposition to his power grab. But that isn’t the only reason to cry foul about this treaty. The treatment of poor Third World nations by this treaty is atrocious and its remedy for the devastating impact the emission cuts will have on these nations is as bad if not worse than the problem it claims to be solving.

On the one hand, some of the poorer nations are complaining that a treaty that is not legally binding will not force richer countries to send them aid to build dams and levees to protect against the coastal flooding that warming activists claim will happen sooner or later. But they also worry about the willingness of the wealthy West to enact international treaties that may ultimately prevent them from using carbon to develop their own economies.

Even worse is the fact that the money funneled to the Third World by Obama’s plan will be simply transferred to the nations rather than being targeted to solve particular problems with safeguards to prevent corruption. Suffice it to say that this more or less guarantees that any money that does get transferred to these poor nations will go straight into the pockets and the Swiss bank accounts of public officials there rather than helping the poor deal with the impact of climate change.

In short, this treaty combines all the evils of Obama’s international outlook in one neat package. It both violates American law and seeks to subordinate the interests and the economy of the United States while at the same time pursuing a liberal aid agenda that will worsen the problems of the Third World rather than improving them.

While some of the rhetoric from the right about Obama’s attempt to govern by executive orders may seem over the top at times, this is one instance in which the talk of monarchical instincts is not overblown. Treaties must be ratified by the Senate, not forced down the throat of the nation via “legal magic.” Anyone who sees Senator Mitch McConnell’s threats to obstruct this one-man presidency should he become majority leader next year as evidence of extremism need only consider Obama’s methods on this issue to realize how high the stakes involved in this issue may be. Those liberals who excuse this lawbreaking on grounds of necessity should ask themselves whether they could stomach a conservative president playing the same game.

Read Less

The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Read More

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

Read Less

In Defense of the Vice Presidency

Earlier today, my colleague Seth Mandel reacted to the speculation about San Antonio Mayor Julian Castro being positioned for the 2016 Democratic nomination for vice president by wondering whether we might not be better off abolishing the vice presidency altogether. Seth believes the spectacle of the two major parties lining up potential candidates mainly on the basis of either gender and race is unseemly. The talk of either party’s “veep bench” is equally absurd even if we are pretty sure of who will be at the top of the Democratic ticket in two years.

It’s also true that the office has, from its very beginnings, been of questionable utility. It’s only in the last generation that vice presidents have been given any responsibilities other than their constitutional task of presiding over the Senate. Seth also makes an excellent point when he observes that the Founding Fathers had a very different view of the office than we do today. In the first four presidential elections, the vice president was merely the man who came in second in the Electoral College vote with each elector being given two votes. That process was based in the belief on the part of the delegates at the Constitutional Convention in 1787 that parties would not play a role in electing our presidents. Once that system had to be changed because of Aaron Burr’s betrayal of Thomas Jefferson in the 1800 election, the original conception of the office became obsolete. Thus, Seth reasons we would save a lot of trouble by getting rid of a post that has rarely done the republic much service over the last 225 years.

But while there’s always been a potent critique to be made about the vice presidency—and one that has often been made by the hapless occupiers of the dubious honor—getting rid of it is a terrible idea. Whatever its drawbacks, and however mediocre or worse many of them have been, having a vice president lends legitimacy to the process of succession that is absolutely essential in a constitutional republic.

Read More

Earlier today, my colleague Seth Mandel reacted to the speculation about San Antonio Mayor Julian Castro being positioned for the 2016 Democratic nomination for vice president by wondering whether we might not be better off abolishing the vice presidency altogether. Seth believes the spectacle of the two major parties lining up potential candidates mainly on the basis of either gender and race is unseemly. The talk of either party’s “veep bench” is equally absurd even if we are pretty sure of who will be at the top of the Democratic ticket in two years.

It’s also true that the office has, from its very beginnings, been of questionable utility. It’s only in the last generation that vice presidents have been given any responsibilities other than their constitutional task of presiding over the Senate. Seth also makes an excellent point when he observes that the Founding Fathers had a very different view of the office than we do today. In the first four presidential elections, the vice president was merely the man who came in second in the Electoral College vote with each elector being given two votes. That process was based in the belief on the part of the delegates at the Constitutional Convention in 1787 that parties would not play a role in electing our presidents. Once that system had to be changed because of Aaron Burr’s betrayal of Thomas Jefferson in the 1800 election, the original conception of the office became obsolete. Thus, Seth reasons we would save a lot of trouble by getting rid of a post that has rarely done the republic much service over the last 225 years.

But while there’s always been a potent critique to be made about the vice presidency—and one that has often been made by the hapless occupiers of the dubious honor—getting rid of it is a terrible idea. Whatever its drawbacks, and however mediocre or worse many of them have been, having a vice president lends legitimacy to the process of succession that is absolutely essential in a constitutional republic.

The gravest doubts about the survival of the American political experiment in its earliest years often centered on the question of legitimacy and succession. Would a president, especially one like George Washington, who was the idol of the country, ever willingly step down and lay the foundation for the future of democracy rather than have the republic quickly lapse into tyranny or monarchy as most previous such experiments had done? Would an incumbent that was defeated for reelection choose to peacefully hand over the government to his opponents?

Washington and Adams answered those questions in the affirmative to their everlasting honor. But still unanswered was the question as to what would happen if a president died? Would there be chaos? Would the government be at a standstill until a new election could be held? Having a vice president who was already voted into office by the same Electoral College created a stable process that kept the system from running off the rails in the event of a calamity. Indeed, when William Henry Harrison, the first president to die in office, passed away a month after his inauguration there were doubts about what would happen. But John Tyler slid neatly into Harrison’s place and the republic survived with no apparent trouble. The same has happened every time since then when America found itself with an accidental president.

Any possible alternative to a sitting vice president, including the option Seth mentioned of having the succession pass to the secretary of state, lacks the legitimacy of a national election in which the identity of the standby is determined. Nor is the idea of a snap presidential election when a successor is needed a viable option. Most voters and politicians would agree that one presidential election every four years is bad enough.

The stability of the American republic lies in no small measure on our constitutional traditions and the fact that our democratic system has already passed through most conceivable challenges and emerged intact. The vice presidency is in many ways an anomalous office and the competition for it is more often than not a parody of the presidential process. But, for all its faults, it has served us well since John Adams took the oath of office as our first vice president and wondered what exactly he had gotten himself into. We tinker with the basic structure of our government at our own peril.

Read Less

Bad History: Vox and Alexander Hamilton

Earlier today I wrote about Ezra Klein’s lame defense of the Obama presidency in which he mistakenly asserts that the office is inherently weak. Blaming the Founding Fathers for the president’s incompetence is easier than owning up to the collapse of faith in the crusade for hope and change. Rather than taking a hard look at the president’s own lack of basic political and leadership skills, Klein claims Obama is in a no-win position, an assertion that can only be accepted if you ignore the vast expansion of presidential power in the last century.

But there is one more point about Klein’s essay that bears refutation. He concludes it by taking a swipe at the doctrine of original intent when it comes to interpreting the Constitution. He writes:

That said, the Founding Fathers have been dead for some time, and even when they were alive they disagreed about quite a lot. Anyone who confidently claims they know how the Founding Fathers would feel about today’s political problems is a liar. It’s likely that Alexander Hamilton would have some questions about airplanes and African-American presidents before he’d render an opinion on congressional productivity.

It is true that there is a lot that the authors of the Constitution would find that was difficult to understand about the America of 2014. But the point of that document was to create a structure for governance. It is a work of sheer genius and has, despite its critics on the left, stood up very well to the test of time. While original intent can sometimes be a dodgy exercise that both left and right play at when it suits them, if you want to know the mindset of the Founders one can easily do so by reading either The Federalist Papers (which were written principally by James Madison and Alexander Hamilton) or Madison’s Notes on the Federal Convention.

But leaving that debate aside, Klein’s potshot at Hamilton tells us more about his own intellectual pretensions than the shortcomings of the man who was killed by Aaron Burr. In fact, if any of the founding fathers would have been at home in 21st century America it was Hamilton. He may not have known much about manned flight, but, in contrast to Madison, Jefferson, and most of the rest of his contemporaries who embraced foolish notions about the United States being principally a nation of yeoman farmers, he envisaged the emergence of America as an industrial and commercial giant as well as global power. As many scholars have pointed out, though we venerate Jefferson and to a lesser extent Madison as the men who made our country, it is Hamilton’s America we live in, not theirs.

Read More

Earlier today I wrote about Ezra Klein’s lame defense of the Obama presidency in which he mistakenly asserts that the office is inherently weak. Blaming the Founding Fathers for the president’s incompetence is easier than owning up to the collapse of faith in the crusade for hope and change. Rather than taking a hard look at the president’s own lack of basic political and leadership skills, Klein claims Obama is in a no-win position, an assertion that can only be accepted if you ignore the vast expansion of presidential power in the last century.

But there is one more point about Klein’s essay that bears refutation. He concludes it by taking a swipe at the doctrine of original intent when it comes to interpreting the Constitution. He writes:

That said, the Founding Fathers have been dead for some time, and even when they were alive they disagreed about quite a lot. Anyone who confidently claims they know how the Founding Fathers would feel about today’s political problems is a liar. It’s likely that Alexander Hamilton would have some questions about airplanes and African-American presidents before he’d render an opinion on congressional productivity.

It is true that there is a lot that the authors of the Constitution would find that was difficult to understand about the America of 2014. But the point of that document was to create a structure for governance. It is a work of sheer genius and has, despite its critics on the left, stood up very well to the test of time. While original intent can sometimes be a dodgy exercise that both left and right play at when it suits them, if you want to know the mindset of the Founders one can easily do so by reading either The Federalist Papers (which were written principally by James Madison and Alexander Hamilton) or Madison’s Notes on the Federal Convention.

But leaving that debate aside, Klein’s potshot at Hamilton tells us more about his own intellectual pretensions than the shortcomings of the man who was killed by Aaron Burr. In fact, if any of the founding fathers would have been at home in 21st century America it was Hamilton. He may not have known much about manned flight, but, in contrast to Madison, Jefferson, and most of the rest of his contemporaries who embraced foolish notions about the United States being principally a nation of yeoman farmers, he envisaged the emergence of America as an industrial and commercial giant as well as global power. As many scholars have pointed out, though we venerate Jefferson and to a lesser extent Madison as the men who made our country, it is Hamilton’s America we live in, not theirs.

Hamilton might be surprised at the election of an incompetent like Barack Obama but I doubt he would be shocked at the evolution of our society on race over the course of the centuries to come. He was a virulent opponent of slavery (he was president of one of the country’s earliest anti-slavery societies) and thought the faculties of blacks were as good as those of whites, something that is hardly surprising since he grew up in a biracial environment in the West Indies.

The point here isn’t just that Klein is being unfair to Hamilton. The first treasury secretary needs no defense against jibes from the likes of the founder of Vox. But it says something that a liberal website that poses as the smart citizens guide to politics and culture would be so illiterate when it comes to one of the chief architects of our nation.

Read Less

Powerless President? Obama’s Lame Excuse

In the wake of the VA scandal, President Obama’s cheering section in the press has been scrambling to come up with an excuse for his latest lackluster response to a governmental problem. White House Press Secretary Jay Carney told the country that Obama first heard about the disaster at the VA while watching television, the same story we were told about his discovery of the IRS scandal as well as other instances of potential misconduct. But the fact that this absentee president is incapable of coming up with original excuses about his slow response time to the fiascos that occur on his watch is just the tip of the iceberg.

Though Obama arrived at the Oval Office claiming that he would transform America in a blaze of hope and change, he has proven incapable of fixing the most mundane issues, let alone reboot the country’s political culture or turn back the oceans. Obama’s presidency is stuck in neutral as his second term drifts steadily into lame duck territory. Washington gridlock, the complexities of foreign problems that the president thought would be solved by the magic of his personality (Russian “reset,” Iran engagement, and Middle East peace), and the difficulty of rolling out his signature health-care law have left him looking not so much defeated as helpless. When he spoke to the country about the VA scandal that may have led to as many as 40 deaths of veterans kept waiting for medical service, he lacked passion. Even though VA Secretary Eric Shinseki had clearly failed in his five and half years to address the agency’s problems, Obama was prepared to give him more time. The administration’s slow response was seen as a function of a government that simply didn’t work. For those not still in thrall to Obama’s historic status this state of affairs is a damning indictment of his leadership style and inability to hold his appointees accountable for incompetence and/or failure.

But according to liberal blogger Ezra Klein, the fault lies not with Obama but with his office. In a piece published on his Vox site, Klein makes the argument that it is unfair to expect Obama to succeed when the presidency is designed to be ineffective. In Klein’s view, instead of blaming Obama for being an absentee president, we should be scolding James Madison and Alexander Hamilton for crafting a Constitution that didn’t provide a president with the ability to govern because of the checks and balances incorporated into the system. Those who differ with this view are, he wrote, subscribing to a “Green Lantern Theory of the Presidency” in which the commander-in-chief is invested with magical powers.

This is, to put it mildly, bunk. No American president who respects the Constitution (a dubious proposition when applied to Obama) can be a dictator. But the presidency has evolved from its bare-bones origins at the Federal Convention of 1787 into one that both liberals and conservatives have often dubbed an “imperial” institution. To say that Obama hasn’t the power to succeed is to engage in denial of both history and logic.

Read More

In the wake of the VA scandal, President Obama’s cheering section in the press has been scrambling to come up with an excuse for his latest lackluster response to a governmental problem. White House Press Secretary Jay Carney told the country that Obama first heard about the disaster at the VA while watching television, the same story we were told about his discovery of the IRS scandal as well as other instances of potential misconduct. But the fact that this absentee president is incapable of coming up with original excuses about his slow response time to the fiascos that occur on his watch is just the tip of the iceberg.

Though Obama arrived at the Oval Office claiming that he would transform America in a blaze of hope and change, he has proven incapable of fixing the most mundane issues, let alone reboot the country’s political culture or turn back the oceans. Obama’s presidency is stuck in neutral as his second term drifts steadily into lame duck territory. Washington gridlock, the complexities of foreign problems that the president thought would be solved by the magic of his personality (Russian “reset,” Iran engagement, and Middle East peace), and the difficulty of rolling out his signature health-care law have left him looking not so much defeated as helpless. When he spoke to the country about the VA scandal that may have led to as many as 40 deaths of veterans kept waiting for medical service, he lacked passion. Even though VA Secretary Eric Shinseki had clearly failed in his five and half years to address the agency’s problems, Obama was prepared to give him more time. The administration’s slow response was seen as a function of a government that simply didn’t work. For those not still in thrall to Obama’s historic status this state of affairs is a damning indictment of his leadership style and inability to hold his appointees accountable for incompetence and/or failure.

But according to liberal blogger Ezra Klein, the fault lies not with Obama but with his office. In a piece published on his Vox site, Klein makes the argument that it is unfair to expect Obama to succeed when the presidency is designed to be ineffective. In Klein’s view, instead of blaming Obama for being an absentee president, we should be scolding James Madison and Alexander Hamilton for crafting a Constitution that didn’t provide a president with the ability to govern because of the checks and balances incorporated into the system. Those who differ with this view are, he wrote, subscribing to a “Green Lantern Theory of the Presidency” in which the commander-in-chief is invested with magical powers.

This is, to put it mildly, bunk. No American president who respects the Constitution (a dubious proposition when applied to Obama) can be a dictator. But the presidency has evolved from its bare-bones origins at the Federal Convention of 1787 into one that both liberals and conservatives have often dubbed an “imperial” institution. To say that Obama hasn’t the power to succeed is to engage in denial of both history and logic.

Were we having this discussion in the 19th century rather than the 21st century, Klein might have a point. Up until the Civil War, American presidents had only a tiny federal bureaucracy to rule and lacked the ability to influence many domestic issues, though even then some larger-than-life characters like Andrew Jackson were able to wield enormous power by both constitutional and unconstitutional means. The vast expansion of the national budget and its consequent expansion of federal power that the Civil War helped create changed that. But even in the late 19th century, presidents had but a fraction of the ability to influence events that they do today.

However, in the 20th century, the quaint notions of the early republic with its part-time Congress (meeting only a few months out of each year) and tiny federal payrolls were forgotten as the presidency grew along with the country and the government. Contemporary presidents have at their disposal vast and numerous Cabinet departments and sundry agencies that have been gifted with virtually plenipotentiary powers over states and municipalities. They needn’t resort to attempts to govern by executive orders as Obama has done to throw their weight around. As Obama proved in his first term, the bully pulpit of the presidency and the ability to pressure Congress to act can result not only in giving the man in the White House a trillion-dollar stimulus but also the ability to transform America’s health-care system.

But Klein tells us not to believe our lying eyes and ears and instead believe that Obama’s doldrums are the function of his office. He dissects criticisms of Obama’s inability to work with Congress or to effectively communicate his agenda to the nation by claiming that those who have done so were flukes. Such “Green Lantern Presidents” as Lyndon Johnson, whose legendary ability to ram bills through Congress despite bitter opposition makes Obama’s refusal to deal with the legislative branch look particularly bad, and Ronald Reagan, who used the bully pulpit of the White House to change both foreign and domestic policies, were operating in different times and under different circumstances. He also asserts that partisan divisions are exacerbated by stark ideological splits with the opposition party always believing that it is in their interests to oppose the president on every conceivable issue (as both George W. Bush and Obama could attest).

It is true that the 21st century president has problems that even Reagan and LBJ didn’t face in eras where each party had its share of liberals and conservatives. But the power of the presidency has continued to expand as well. As Obama has perhaps belatedly realized the courts have given him wide latitude to enact policy on issues like carbon emissions. He can also use a Judiciary Department to selectively enforce laws in ways that overshadow the will of Congress.

But none of this gainsays the fact that Obama is simply incompetent in the business of political persuasion and in administration. That he lacks these basic skills that have always been considered essential to a successful presidency cannot be lain at the feet of Madison and Hamilton.

I write more about Klein’s potshot at Alexander Hamilton in a subsequent post.

Read Less

Correcting DeMint’s Historical Confusion

Former Senator Jim DeMint gave an interview that requires some correction and amendment.

Senator DeMint was asked what he would say to a liberal who argued, “That Founding Fathers thing worked out really well. Look at that Civil War we had eighty or so years later.” To which DeMint answered this way:

Well the reason that the slaves were eventually freed was the Constitution. I mean it was like the conscience of the American people. Unfortunately, there were some court decisions like Dred Scott and others that defined some people as property. But the Constitution kept calling us back to ‘”all men are created equal and we have inalienable rights” in the minds of God. But a lot of the move to free the slaves came from the people. It did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves. In fact, it was Abraham Lincoln, the very first Republican, who took this on as a cause and a lot of it was based on a love in his heart that comes from God.

Senator DeMint, who counts himself, I believe, a “constitutional conservative,” quotes from the preamble of the Declaration of Independence, but seems to ascribe the words to the Constitution. In addition the Constitution, of course, contained the three-fifths compromise (Article 1, Section 2, Paragraph 3) and also allowed for the importation of slaves until the early part of the 19th century (Article 1 Section 9). Why? Because the Southern states threatened to withdraw from the Constitutional Convention if slavery was banned. In Madison’s words, “great as the evil [slavery] is, a dismemberment of the union would be worse.” Madison was right; it was a difficult but necessary and prudential judgment. Furthermore, he believed that the Constitution would eventually put slavery on the road to extinction. In fact, that required the Civil War.

Read More

Former Senator Jim DeMint gave an interview that requires some correction and amendment.

Senator DeMint was asked what he would say to a liberal who argued, “That Founding Fathers thing worked out really well. Look at that Civil War we had eighty or so years later.” To which DeMint answered this way:

Well the reason that the slaves were eventually freed was the Constitution. I mean it was like the conscience of the American people. Unfortunately, there were some court decisions like Dred Scott and others that defined some people as property. But the Constitution kept calling us back to ‘”all men are created equal and we have inalienable rights” in the minds of God. But a lot of the move to free the slaves came from the people. It did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves. In fact, it was Abraham Lincoln, the very first Republican, who took this on as a cause and a lot of it was based on a love in his heart that comes from God.

Senator DeMint, who counts himself, I believe, a “constitutional conservative,” quotes from the preamble of the Declaration of Independence, but seems to ascribe the words to the Constitution. In addition the Constitution, of course, contained the three-fifths compromise (Article 1, Section 2, Paragraph 3) and also allowed for the importation of slaves until the early part of the 19th century (Article 1 Section 9). Why? Because the Southern states threatened to withdraw from the Constitutional Convention if slavery was banned. In Madison’s words, “great as the evil [slavery] is, a dismemberment of the union would be worse.” Madison was right; it was a difficult but necessary and prudential judgment. Furthermore, he believed that the Constitution would eventually put slavery on the road to extinction. In fact, that required the Civil War.

Senator DeMint is certainly right that part of the impetus to end slavery came from the people, including people of faith, including abolitionists and individuals like Harriet Beecher Stowe, who authored Uncle Tom’s Cabin, the first novel to criticize the institution of slavery. (Supposedly Lincoln, upon meeting Stowe, said, “So you’re the little woman who wrote the book that made this great war?”) Oddly, though, DeMint mentions William Wilberforce, a great opponent of the slave trade but who was English, not American (as the interviewer, sensing trouble, quickly points out) and who died decades before the American Civil War.

Fine. But where DeMint really gets into trouble, I think, is when he claims, “the move to free the slaves came from the people. It did not come from the federal government.” In fact, the move to free the slaves did come from the federal government – in the form of Lincoln, the chief executive at the time; in the form of the Emancipation Proclamation and the 13th Amendment; and in the form of the Civil War itself. Lincoln himself, it should be said, vastly expanded the powers of the federal government, including instituting the first federal income tax. And Lincoln’s prosecution of the war was based first and foremost on preserving the union, though his commitment to end slavery became an increasingly important factor.

So why call attention to these matters? In part, I think, because it’s important for conservatives to undo some of the confusion that DeMint created. But there’s another, somewhat deeper point to be made about the danger of approaching history and politics through an overly ideological lens. In this case Senator DeMint, a fierce critic of the federal government, has reinterpreted history in order to make it fit into his particular narrative. He seems so eager to refuse to give credit to the federal government for anything that he insists it didn’t play a role in the abolition of slavery. And that’s where he made perhaps his biggest error.  

I worry, too, that some on the right invoke the Constitution without really understanding it and its history. For example, many conservatives who profess reverence for the Constitution are vocal and reflexive critics of compromise per se – despite the fact that the Constitution was itself a product of an enormous set of compromises. (For more, see this National Affairs essay I co-authored with Michael Gerson. As we wrote, “A recovery of constitutional ideals is, to be sure, a worthwhile endeavor — but it does not point quite where [certain Tea Party and conservative] leaders and activists often suggest.”)

In the end, I would argue that conservatism and the cause of limited government are undermined by loose talk and an excessive animus toward the federal government. These days, in fact, conservatives would be well served to focus a good deal more attention on the purposes of government, not simply its size. I say that because during the Obama era the right has been very clear about what government should not be doing, or should be doing much less of, and for understandable reasons. But it has not had nearly enough to say about just what government should do. That needs to be corrected — and in the process conservatives need to be careful to speak with care and precision about our Constitution and the role of the federal government in our history.

Read Less

Perry’s Deconstructive Governing Agenda

In his speech at CPAC, Texas Governor Rick Perry brought the crowd to its feet by saying this:

Nowhere does the Constitution say we should federalize classrooms. Nowhere does it give federal officials primary responsibility over the air we breathe, the land we farm, the water we drink. And nowhere does it say Congress has the right to federalize health care… It is time for Washington to focus on the few things the Constitution establishes as the federal government’s role: defend our country, provide a cogent foreign policy, and – what the heck – deliver the mail, preferably on time and on Saturdays. Get out of the health care business! Get out of the education business!

This points to a concern of mine and which Michael Gerson and I wrote about recently in an essay for National Affairs. For starters, Governor Perry’s interpretation of enumerated powers is more restrictive than what many of the Federalist Founders believed. (See the essay and here  for more.) As for Governor Perry’s line of argument: He says the Constitution doesn’t give “primary” responsibility over the air we breathe, the land we farm and the water we drink. But in fact, the Constitution doesn’t affirm even a secondary role for the areas mentioned by Perry. Is it really his position, then, that the federal government should have no role in education, health care, and clean air and water? What about child immunization? Support for the National Institutes of Health? Pell grants? The GI Bill? All of the New Deal? Bans on child labor? The Second National Bank (signed into law by the “father” of the Constitution, James Madison)? After all, the Constitution says nothing about establishing a national bank.

Read More

In his speech at CPAC, Texas Governor Rick Perry brought the crowd to its feet by saying this:

Nowhere does the Constitution say we should federalize classrooms. Nowhere does it give federal officials primary responsibility over the air we breathe, the land we farm, the water we drink. And nowhere does it say Congress has the right to federalize health care… It is time for Washington to focus on the few things the Constitution establishes as the federal government’s role: defend our country, provide a cogent foreign policy, and – what the heck – deliver the mail, preferably on time and on Saturdays. Get out of the health care business! Get out of the education business!

This points to a concern of mine and which Michael Gerson and I wrote about recently in an essay for National Affairs. For starters, Governor Perry’s interpretation of enumerated powers is more restrictive than what many of the Federalist Founders believed. (See the essay and here  for more.) As for Governor Perry’s line of argument: He says the Constitution doesn’t give “primary” responsibility over the air we breathe, the land we farm and the water we drink. But in fact, the Constitution doesn’t affirm even a secondary role for the areas mentioned by Perry. Is it really his position, then, that the federal government should have no role in education, health care, and clean air and water? What about child immunization? Support for the National Institutes of Health? Pell grants? The GI Bill? All of the New Deal? Bans on child labor? The Second National Bank (signed into law by the “father” of the Constitution, James Madison)? After all, the Constitution says nothing about establishing a national bank.

It’s worth quoting here, as I have before, Senator Daniel Patrick Moynihan, who made this observation:

Perhaps the most important act of the Continental Congress was the Northwest Ordinance which provided a direct federal subsidy for education. Almost the first act of the Congress established by the present Constitution was to reaffirm this grant. A plaque on the Sub-Treasury on Wall Street commemorates both actions. This does not invalidate the view that the federal government ought not to exercise any responsibility, but it does make nonsense of the view that the Constitution – presumably because it does not mention the subject – somehow bars such an exercise.

It is one thing – and I think very much the right thing – to argue for a more limited role for the federal government and conservative reforms of everything from entitlement programs to education, from our tax code to our immigration system to much else. It’s quite another when we have the kind of loose talk from the governor of the second most populous state in America.

I realize that some people will argue that what Perry is offering up is simply “red meat” for a conservative audience. It’s a (lazy) default language those on the right sometimes resort to in order to express their unhappiness with the size of the federal government. But words matter, Governor Perry is actually putting forth (albeit in a simplified version) a governing philosophy, and most Americans who hear it will be alarmed by it.

As a political matter, running under the banner of “Get out of the health care business! Get out of the education business!” hardly strikes me as the best way to rally people who are not now voting for the GOP in presidential elections. I’m reminded of the words of the distinguished political scientist James Q. Wilson: “Telling people who want clean air, a safe environment, fewer drug dealers, a decent retirement, and protection against catastrophic medical bills that the government ought not to do these things is wishful or suicidal politics.”

According to a CBS News/New York Times poll, only 33 percent of respondents had a favorable view of the Republican Party while 61 percent had an unfavorable view. Having a prominent GOP figure give a speech in which he insists that virtually the entire modern state is unconstitutional and therefore illegitimate probably won’t help matters. Then again, neither does having the 2008 vice presidential nominee give a speech in which she takes great delight in re-writing Dr. Seuss.

This is not what the Republican Party or the conservative cause needs just now.

Read Less

A Gun-Control Proposal that Is Doomed from the Start

The New York Times carries an op-ed today on gun control that will disappoint readers of every political stripe. The headline, “Rewrite the Second Amendment,” is tantalizingly provocative; unfortunately, the rest of the column fails to cash the check.

For anyone following the gun control debate with a strong opinion on the issue, at first glance it appears to finally be the op-ed we’ve all been waiting for. Democrats who don’t much care for the right to bear arms or the general fealty to constitutional doctrine–and they are legion–but don’t have the guts to say so will be expecting the author, University of Texas professor Zachary Elkins, to speak for them. Republicans who wish to paint their antagonists as radical gun-grabbers–and they are legion–will be expecting Elkins to finally put flesh on the straw man. The common ground they are most likely to find, however, is in jointly panning the op-ed for overpromising.

Elkins begins by describing the current political impasse over gun control in the wake of the Newtown massacre. He then seems to set us up for the punchline when he writes: “It is actually quite unusual for gun rights to be included in a constitution.”

Read More

The New York Times carries an op-ed today on gun control that will disappoint readers of every political stripe. The headline, “Rewrite the Second Amendment,” is tantalizingly provocative; unfortunately, the rest of the column fails to cash the check.

For anyone following the gun control debate with a strong opinion on the issue, at first glance it appears to finally be the op-ed we’ve all been waiting for. Democrats who don’t much care for the right to bear arms or the general fealty to constitutional doctrine–and they are legion–but don’t have the guts to say so will be expecting the author, University of Texas professor Zachary Elkins, to speak for them. Republicans who wish to paint their antagonists as radical gun-grabbers–and they are legion–will be expecting Elkins to finally put flesh on the straw man. The common ground they are most likely to find, however, is in jointly panning the op-ed for overpromising.

Elkins begins by describing the current political impasse over gun control in the wake of the Newtown massacre. He then seems to set us up for the punchline when he writes: “It is actually quite unusual for gun rights to be included in a constitution.”

The obvious response is: so what? But the reader senses that he will follow that by suggesting gun rights be removed from our Constitution. Here comes the set-up:

“What part of ‘shall not be infringed’ do you not understand?” the gun-rights advocate asks. “What part of ‘a well regulated Militia’ do you not understand?” goes the retort.

Partly because of this ambiguity, the Second Amendment seemed almost irrelevant for most of our history. In the 19th and 20th centuries, many American towns and states regulated guns. In the deadly confrontation at the OK Corral in Tombstone, Ariz., in 1881, Wyatt Earp was enforcing a ban on carrying guns in public.

But in the 1980s, a movement to interpret the amendment as promoting the right to bear arms for self-defense emerged. It reached an apotheosis of sorts in the 2008 case, which struck down the District of Columbia’s ban on handguns. It was the first time the court had ever restricted gun regulation, but the 5-to-4 vote also suggests that the decision is not fixed doctrine.

This constitutional uncertainty should suggest to both sides the possibility of agreeing on a formal clarification of the constitutional text.

And that clarified constitutional text would say… what exactly? He never says. Offering no guidance, that would be left up to Congress. Which is where we are now. Which is why there’s an impasse, and why Elkins wrote the op-ed. Come to think of it, why did Elkins write the op-ed?

The most recent attempted gun ban failed because it could not garner 50 votes in the Senate, and less restrictive legislation is starting to look like it can’t get to 60 votes in the Senate, let alone the GOP-majority House. So Elkins, to break the stalemate, wants Congress to find a way to enact gun regulation that would need two-thirds of each house of Congress and three-fourths of the country’s state legislatures? I would be curious to know–as would, presumably, everyone else who read that op-ed–what specific regulation language Elkins thinks cannot garner half of Congress but can garner two-thirds.

But one begins to suspect that that was the point all along. Gun regulation of the type liberals want can’t pass Congress, so they want this to be taken out of the hands of politicians altogether and enshrined in a document they have suddenly found useful again. But that won’t solve the problem either in the end, because to amend the Constitution you have to go through the politicians that Elkins would prefer to avoid.

And that, I would guess, is why Elkins’s op-ed ended up saying nothing at all. He obviously thinks it’s silly to have gun rights in the Constitution, but Americans think it would be silly not to. As did the Founders. Elkins’s op-ed seems to be happening in real-time, as we can sense him start to slowly back out of the commitment he was sure to make only minutes ago. And the conclusion we get, instead, is: Never mind.

Read Less

Liberal Second-Guessing Won’t Make ObamaCare Constitutional

With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

Read More

With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

The problem wasn’t the tactics pursued by ObamaCare advocates either in court or outside it. The problem was a bill that proposed an expansion of federal power that even the Commerce Clause — that catchall mechanism used to justify every new federal power grab for a century — couldn’t support.

The bill did help generate a political earthquake in the form of the Tea Party that led to the Republican landslide in the 2010 midterms that erased the Democratic majority who passed the act. But better advocacy on the part of the bill’s supporters would not have prevented conservatives and libertarian lawyers from bringing forth the successful challenges that two lower federal courts have already accepted.

If Democrats like Pelosi couldn’t imagine anyone taking those challenges seriously it is not just because they live in a liberal echo chamber where conservative ideas are viewed with as much contempt as conservative politicians. It is because after nearly 100 years of liberal judicial activism that created the current federal leviathan, they had come to believe there were no limits on that power. If Congress could regulate any kind of commerce, why wouldn’t liberals think that this extended even to commerce that didn’t already exist or even inactivity and thereby make it legal for the government to demand that individuals purchase health insurance?

Since for decades liberals have treated a more libertarian approach to the constitution with scorn, why would anyone, especially that former law professor sitting in the White House, have thought differently?

Of course, as the Times points out, the constitutional challenge would have been avoided if the legislation had been framed more explicitly as a tax which the federal government has the right to levy. But Obama and Pelosi had a hard enough time getting a Democrat-controlled Congress to pass it without explicitly selling it as a massive tax increase though that is, in effect, what the bill is. In that form, it would never have been adopted.

As for Turley’s court-packing scheme, the transparently political nature of his appeal renders it absurd. He’s right that there’s nothing sacred about the number nine but since the current format has been in place since 1869, there’s no reason to change this tradition. Any expansion would be inherently political, an attempt to overturn the current court majority by a president and a Congress that didn’t like their opinions on the constitution. If Franklin Roosevelt couldn’t get away with such an idea in 1938 when he proposed it, does anyone seriously believe Barack Obama or Mitt Romney or any other president in the foreseeable future can do so?

The liberal dilemma has no more to do with the number of justices than it does with supposed shortcomings in the strategy adopted by the White House or Congressional Democrats. If the bill goes down this week it will be because a majority on the court have realized that a government that is given the power to invent as well as to regulate commerce is a threat to our liberty. And no clever tactic can make that acceptable to the majority of Americans who oppose ObamaCare or the judges who will vote against it.

Read Less

Will Broccoli Preserve American Liberty?

If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.

According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.

Read More

If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.

According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.

As Stewart writes, libertarians pointed out during the Clinton-era debate that if the government could force people to do something or participate in commerce that they had not already engaged in (as opposed to regulating activity already commenced), then there was nothing it could not force them to do including eating certain foods or not eating them. This argument was greeted with “howls of derision” by the legal establishment, but it helped convince some jurists and politicians (including a conservative like Sen. Orrin Hatch who originally supported the idea of an individual mandate) that the drive to impose health care was about more than just insurance.

Liberals continue to argue that the talk of broccoli and a nanny state compelling us to eat our vegetables is a diversion from the important question of how to provide health care for all Americans. But the broccoli analogy has initiated exactly the sort of debate about the constitutional limits of government power that have been ignored or stifled for much of the past century.

The point is not about whether health insurance is a good idea or the value of any other potential government service or program. It is whether there is anything, no matter how great its intrinsic worth, that the Congress cannot impose on the nation under the loose authority granted to it by the Commerce Clause? Though Justice Elena Kagan conceded during her confirmation hearing that legislation that would require Americans to eat fruits and vegetables would be a “dumb law,” alluding to the egregious nature of the requirement still begs the question of whether the liberal interpretation of the Constitution would still allow it or any other similarly absurd proposal to stand as constitutional.

For too long liberals intent on telling Americans what they should do or even think have assumed that the law would always be interpreted as giving them leeway to expand federal power wherever it served their interests. They are flummoxed if not infuriated by the way this elementary point about broccoli has brought their latest enterprise to a standstill. They rightly fear that if the courts begin to look at such cases from the frame of reference of preserving individual liberty, the intellectual house of cards that has buttressed their arguments for generations will soon collapse.

If the court strikes down ObamaCare, perhaps Tea Partiers should start displaying a new broccoli flag alongside the historic Gadsden “Don’t Tread on Me” banner they like to sport. Like it or not, more than anything else, broccoli has helped remind Americans that liberty is precious and must be defended against the government.

Read Less

Health Insurance Mandate Now, Forced Loans Tomorrow?

The five and a half hours of oral argument before the Supreme Court this week are probably the most anticipated since the final days of the Watergate scandal. Barring a major unanticipated event, it will utterly dominate this week’s news out of Washington. Indeed people have been camped out since Friday in order to get one of the very few seats available to the public. (For those not inclined to sit on the street for three days to hear it directly, audiotapes of the arguments will be available each afternoon). A good summary of the cases and the players can be found here.

In 1974, as the nation hung on every word, the Court heard arguments in United States v. Nixon on July 8th, 1974, and on July 24th delivered its unanimous verdict (8-0, Justice Rehnquist, later Chief Justice, having recused himself because he had worked in the Nixon Justice Department). The verdict, denying the president’s power to assert executive privilege over tapes relevant to the case, doomed the Nixon presidency and led to Nixon’s resignation on August 9th. For those of us old enough to be around in those days, now nearly forty years ago, it was the great constitutional drama of our lives. (You can hear the oral arguments and the delivery of the decision here.)

Read More

The five and a half hours of oral argument before the Supreme Court this week are probably the most anticipated since the final days of the Watergate scandal. Barring a major unanticipated event, it will utterly dominate this week’s news out of Washington. Indeed people have been camped out since Friday in order to get one of the very few seats available to the public. (For those not inclined to sit on the street for three days to hear it directly, audiotapes of the arguments will be available each afternoon). A good summary of the cases and the players can be found here.

In 1974, as the nation hung on every word, the Court heard arguments in United States v. Nixon on July 8th, 1974, and on July 24th delivered its unanimous verdict (8-0, Justice Rehnquist, later Chief Justice, having recused himself because he had worked in the Nixon Justice Department). The verdict, denying the president’s power to assert executive privilege over tapes relevant to the case, doomed the Nixon presidency and led to Nixon’s resignation on August 9th. For those of us old enough to be around in those days, now nearly forty years ago, it was the great constitutional drama of our lives. (You can hear the oral arguments and the delivery of the decision here.)

The present cases don’t quite rise to that level, but they are crucial nonetheless. The American political landscape will be deeply affected by the Court’s rulings on this issue. Assuming the whole issue doesn’t run afoul of the Anti-Injunction Act, the subject of Monday’s argument, the crux of the matter is whether Congress, pursuant to its power (Article I, section 8)  to regulate commerce “among the several states,” can mandate that individuals enter into a contract with health insurance providers. This will be the argument heard on Tuesday. (Wednesday’s argument will deal with the severability issue, whether a judgment against the mandate would invalidate the whole law, or just that part of it. As a practical matter, the loss of the mandate would probably make the rest of the law unworkable.)

The mandate, forcing individuals to participate in commerce, is a breathtaking enlargement of federal power under the commerce clause. If Congress can mandate this under the commerce clause, what can’t it mandate? Can we be required to buy certain types of automobiles (about the only way the Chevy Volt, it seems, can be a commercial success)?

Or how about this for a scenario. Treasury securities circulate in interstate commerce, being bought and sold by the millions every workday. So, could Congress mandate that individuals purchase treasury bonds, bills, and notes, perhaps requiring that a certain portion of 401(k)s and IRA’s be invested in treasuries? That, of course, would be tantamount to a “forced loan.”  The Romans used that technique to help finance the Punic Wars. But when King Charles I tried it early in his reign it led directly to the Petition of Right of 1628, one of the fundamental documents that make up the British Constitution and deeply influenced our own. Indeed the Third, Fifth, Sixth and Seventh Amendments of the Bill of Rights derive directly from it. The U. S. Constitution does not, however, expressly forbid forced loans.

Argentina did this a couple of years ago, forcing citizens to convert the securities in their retirement accounts into government bonds.  The Chicago way has been bad enough the last three years, the Buenos Aires way would be a lot worse.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.