Some Thoughts on Procedure

 

Courtesy of Memegenerator.net and JPB.

"Procedure" is a word that evokes banality. It is the stuff of bureaucracy and litigiousness. It's the word we use to describe colonoscopies in polite company. And, if my Twitter feed is any indication, it is the last refuge of political scoundrels trying to make a point.

But procedure is also the bulwark of rights in our judicial system. (ie, Due Process) Those in power must follow procedure to exercise that power in a way consistent with law and custom. Presidents, Congressmen, police officers, prosecutors, and bureaucrats all most follow procedure to maintain their legitimacy.

I happen to agree with many on the Left, and a few on the Right, that Obama's executive orders relating to immigration were within the laws and customs currently on the books. Whether those laws should have exceptions that one libertarian friend said "you could drive a truck through" is another story entirely, but that's the law Congress gave him to work with.

(dis?)Courtesy of the White House

The Right's sky-is-falling narrative is overblown and off-base, at least in this context. Their references to a King or Emperor skirting procedure would be laughable if not so tragic, given what most of them are conveniently ignoring.

Obama has not once, but twice unilaterally sent troops to fight in civil wars that pose no existential threat to the United States nor could be construed (with a straight face) to be in line with the AUMF --lest we understand the text to mean the Authorization to Unilaterally Murder Foreigners. (See also: the Kill List.)

But you see, it's much easier to rile up the Right's base by helping millions of brown people here at home than blowing up different brown people half-way across the globe.

Take a moment to process that.

bellum medicamenti delenda est

Rand Paul's Filibuster, Due Process, and Democratic Cowardice

I've never been a big Ron or Rand Paul fan. The elder's refusal to take responsibility for his racist fundraising emails in the 1980s is an inexcusable disgrace. Rand has publicly distanced himself from the "L-word," and proudly asserts his conservative bona fides. I am not anti-Pauls, but I'm not about to put a "Paul 2016" sign up in my window either.

But what Rand Paul did yesterday was remarkable and one of the greatest political moments of my life. For thirteen hours, Rand Paul held a basic--though imperfect--civics lesson, citing simple truths and fundamental rights that the Obama administration blithely asserts they can ignore. Only one Democrat, Sen. Ron Wyden, had the courage to quite literally stand up for what is right.

I say "imperfect" because, not only did he get some constitutional doctrine wrong, Paul became too distracted by "drones," the weapon with which the United States carries out much of its targeted killing program. Easily lost in his many hours of talk about drones and Hellfire missiles, Paul was making an extensive and coherent defense of Due Process and the fundamental rights every American has against his government. In the criminal realm, these rights include, but are not exclusive to:

• Right to habeas corpus (the government has to present just cause for imprisoning you)
• Right to counsel
• Right to face your accuser
• Right to trial by jury
• And, in the case of an accusation of treason Article III  § 3 of the Constitution is quite specific:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Two witnesses. Overt acts.  Open court. For all the ambiguity in the Constitution, the requirements placed on the government to pursue charges of treason against a citizen are about as unambiguous as the document gets.

Yet, there isn't one of these rights and protections that isn't violated in its entirety by President Obama's "Kill list."

Since the birth of government thousands of years ago, rulers and despots have been ordering enemies killed for both just and unjust causes. It is the most brutal use of state power and it has been used and abused throughout the history of civilization.

But for almost 800 years, Western legal tradition has forbidden its use against its citizens. The rights listed above aren't some product of a bleeding heart ACLU lawyer, they have been formed by our  understanding of the rights of man since 1215. For reference, Genghis Khan was pillaging China when England decided, "Hey, maybe we should put in some safeguards to protect people from being indiscriminately killed by our leaders."

There is nothing that changed on 9/11 that should upend the wisdom learned over the greater part of a millennium.  The brilliance and beauty of our 224 year old system of government is that, at great cost and over time, it has continued to expand, not restrict, these protections that once were given only to "free men." The ancient right to Due Process was crafted over centuries, ultimately codified in our Constitution, to protect citizens from the unilateral actions of a government entity.

And yet, we have an administration that claims the power of assassination by executive decree, with no geographical boundary, and no reasonable understanding of "imminent threat"--the standard used to self-justify their secret decisionmaking.

When directly questioned by the Senate Judiciary Committee yesterday, whether the government had this power to order the domestic killing of an American citizen away from any cognizable battlefield, Attorney General Eric Holder essentially admitted as much, though he said it was highly unlikely they'd use it. Holder half-assed his answers, obfuscating as much as he could, in order to not say outright that the government can kill you without oversight or due process at its whim, dismissing the question because it was "hypothetical."

Yet, for another hypothetical, Holder didn't back down from specifics. This is the exchange Holder had with Sen. Grassley:

GRASSLEY: Once again, thank you for coming up here. I want to follow up on your response to Senator Cruz. And I think he talked about introducing a bill. Do you believe that Congress has a constitutional authority to pass a law prohibiting the president's ability to use drone aircrafts, to use lethal force against American citizens on U.S. soil? And if not, why not?

HOLDER: Do I think the Congress has the ability to pass such a bill?

GRASSLEY: No, whether the legislation -- well, yes, Congress has the constitutional authority to pass a law prohibiting the president's ability to use drone aircraft, to use lethal force against American citizens on U.S. soil.

HOLDER: I'm not sure that such a bill would be constitutional. I think that might run counter to the Article II powers that the president has. I'd have to look at, obviously, the legislation, but I would have that concern.

GRASSLEY: OK. But your basis is -- the why not, it'd be because of Article II?

HOLDER: I believe so, yes.

The  Attorney General of the United States's first reaction to a hypothetical bill to ban domestic drone strikes is to "have concern" that the President's power may be limited. Yet, the hypothetical nature of a question whether the government could summarily kill a citizen on American soil prevents him from unambiguously supporting 800 years of common law and the explicit text of the Bill of Rights.

I have a hypothetical for the administration:

A train is bombed by terrorists, killing over 100 people. A fingerprint pulled from the reconstructed device comes up with a match in the government's database. The fingerprint belongs to a Muslim American citizen living in Oregon. The United States has tangible evidence that he is responsible for over 100 deaths of innocents. Can the government kill him?

These facts aren't really hypothetical. In the wake of the Madrid train bombing, Oregon attorney Brandon Mayfield was taken into custody and held weeks without charge for a misidentified fingerprint. He was guilty of no crime, but government agents threw him in a cell and denied him his constitutional rights for weeks. Due Process should have protected him, but because he was thought to be a Muslim terrorist, his rights were ignored. Presented with tangible evidence in the wake of a mass casualty attack, in a world in which American terror suspects are routinely targeted abroad, it doesn't take a slippery slope to reach the point where a presidential hit is put on an American citizen in the United States. It just takes one step and a call to clandestine operations.

So when a U.S. Senator took to the floor to bring this bold assertion to the forefront of the public eye, only one person from the party that prides itself on its civil rights bona fides stood up to even question the claim. One.

I do not believe for one moment that most of the Republican senators, or even all of the Republicans who raised questions last night, agrees with Paul. They used his filibuster as a political tool to attack Obama. Under a Republican administration--which not a few of them imagine themselves to be someday leading--many would have no qualms whatsoever with this power. But this was an opportunity for the Democrats to stand up for what they claim to believe in, at no conceivable political cost from their constituents, yet all but one sat on their hands. They said nothing. They'll get no such support against executive overreach from Republicans during a Republican administration, and they know it, yet they just sat idly by as one man spent 13 arduous hours explaining the fundamental importance of Due Process and how assassination by executive decree, with no oversight or recourse, is anathema to a functioning republic.

Their silence was cowardice. They should be ashamed of themselves.

bellum medicamenti delenda est

UPDATE:   Adam Serwer reports that Holder has answered Paul:

"It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Holder wrote. "The answer to that question is no."

Sigh. The drone issue continues to obscure the fact Americans have no legal recourse against a secret executive order to kill them, whether at home or abroad.

"Breaking the Taboo" Premieres Today

When you get time, please watch "Breaking the Taboo," a great new documentary on the murderous and costly Drug War. It's narrated by Morgan Freeman and features appearances by, inter alia, former U.S. presidents Bill Clinton and Jimmy Carter, entertainment mogul Richard Branson, and former leaders from Latin America and Europe.



It is a compelling film and I urge you to share it with friends and relatives who may not understand the failure and catastrophic costs borne by millions of people in our country and abroad.
 

bellum medicamenti delenda est

Why the Feds Are Unlikely to Respect Washington and Colorado

The recent ballot initiatives that allow recreational cannabis use in Colorado and Washington have been welcomed by many folks as a sweeping change in American drug policy. To the extent that the initiatives represent a shift in popular conception of cannabis use, I join the general enthusiasm expressed by libertarians and a several on the Left. However, the Obama Administration has shown no substantive will to rein in the federal Drug War and until it does, these measures can only be viewed as partial victories in those two states. Moreover, many supportive commentators seem overly optimistic of what is likely to happen, perhaps based on misplaced assumptions of how the Drug War is fought.

Quoting Mark Kleiman, co-author of Marijuana Legalization: What Everyone Needs to Know, MoJo's Kevin Drum writes:

[Kleiman:]The federal government could shut down both of those experiments, if it were determined to do so....But it would make it impossible to learn anything useful from the Colorado and Washington experiments.

So why shouldn’t the federal government cut Colorado and Washington some slack? As long as those states prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states, the Justice Department could step back and let the consequences of the new policies play themselves out. They might succeed, or they might fail. In either case, the rest of us could learn from their experience.

I doubt that either state can effectively prevent locally-grown marijuana from crossing state lines, but hell, they can't prevent it now either. So I'm with Mark: there's no need to announce any public change of policy, but Obama should tell DEA to lie low for a while and see how Colorado and Washington do. A controlled experiment like this is the best way of finding out the effect of full legalization of marijuana. Does it lead to higher consumption? Is it a gateway drug? Will it reduce consumption of alcohol? (emphasis mine)

There are three main problems with this excerpt. 

 

First, Professor Kleiman's question rests on the assumption that the federal government has any desire to see how the “experiments” play out. As I've noted before, the DEA effectively prohibits experimental research on cannabis in a controlled environment by anyone but the National Institute on Drug Abuse, a government agency. Cannabis, as explained in Kleiman's book, is the only illicit drug that is off-limits to non-governmental researchers that are open to positive value in cannabis use. There is no reason to believe that while the DEA won't allow literal experiments by scientists in a lab, they would be amenable to whole states being substituted as figurative laboratories. As a drug researcher, he knows this, but this sort of 'why not?' obscures the hurdles the government  institutes to hamper the “science” the ONDCP is so fond of citing to support their policies.

Second, Drum assumes that cannabis would need to cross state lines to violate the Interstate Commerce Clause of the Constitution to enter the federal jurisdiction—a perfectly reasonable belief. Unfortunately, this is not how the Supreme Court has ruled...twice. In Wickard v. Filburn (1942), the New Deal Court ruled that a farmer who set aside wheat for his own family's use could be regulated—read, “prohibited”—by the federal government of the Interstate Commerce Clause. More recently, in Gonzales v. Raich (2004), the Court ruled—with Republican-appointed Justices O'Connor, Rehnquist and Thomas dissenting—that cannabis grown by a terminally ill individual in accordance with state law for one's own medical use violated that very same Interstate Commerce Clause because by not participating in a (prohibited) interstate market, you affect demand. Not coincidentally, this tortured reading of the clause was cited in just nearly (if not) every single brief supporting the government in the Health Care Cases (2012). In short, much of the Left's economic and legal agenda rides on the federal government asserting power, via the Commerce Clause, into any aspect of our economic and personal lives. That Obama's Administration would find a new respect for federalism for cannabis is laughable...literally.

Third, and perhaps most important, it's not only the DEA that needs to stand-down. The U.S. Attorneys in every federal jurisdiction in the country have very wide latitude on whom they prosecute and for what offense. As you may recall, early in the Obama Administration, Attorney General Holder said publicly, backed-up by what is known as the “Ogden Memo,” that the DOJ would no longer consider raiding medical cannabis facilities that complied with state law a priority. Since then, the DOJ has increased raids on those same facilities, sometimes with the help of municipal authorities who don't agree with state law. If a public directive is so willfully ignored, there's little to suggest private encouragement would meet a different fate, particularly in the Eastern District of Washington.

Matt Yglesias, in a post that has a much more realistic view of the new regime, still errs a bit:

“The DEA obviously can't police low-level retailing, so if states and localities say it's legal it'll be a lot simpler in practice to get some pot.”

On the facts of the matter, Matt is correct. There will be no DEA patrols going through neighborhoods looking for cannabis. That said, it has been and continues to be very easy to “get some pot” all across America. Most cannabis users (and dealers, for that matter) simply aren't caught. The Drug War isn't a failure because you can still get some drugs under some circumstances—the failure lies, in part, in the fact drugs are still virtually ubiquitous despite draconian enforcement efforts. Further, the feds are not above using relatively low-level stings to get convictions—they know most offenders are going to plea out. Indeed, they don't even need to charge anyone at all to intimidate a low-level user ignorant of federal law into cooperation. Then, all they need is an inside-lead to a small group of people who have a common connection to drugs—say a commune or even a co-op—and prosecutors may attach the word “conspiracy” to add the cannabis together to reach federally chargable amounts. If any of those people have otherwise legal and unrelated guns on the premises, the charges really start to mount up. A small dispensary or a self-sustaining bunch of hippies can become a target of an ambitious U.S. Attorney—and it's all over. Though hypothetical, it's not at all unreasonable to think this sort of thing will happen—the track record against medical cannabis facilities proves that. I'm sure the DOJ has its stable of confidential informants ready and willing to work under new rules.

So I join Yglesias and Drum with a cautious optimism that this will make life better for cannabis users in Colorado and Washington. But we should not fail to mention that this will not deter federal law enforcement from prosecuting state-legal activity. That enforcement, though less harassing to the general public than state and municipal policing, will continue to ruin lives through incarceration and depriving the sick of relief. Indeed, it is hard to imagine the Administration that continues to deprive cancer and AIDS patients regular access to their medicine suddenly changing its tune now that Dave-O can load up his stash before a Phish show. If anything, I would expect heightened federal action against participants in the new regimes not long after they are put in place.

bellum medicamenti delenda est

Quote of the Day

Glenn Greenwald, discussing Obama hedging on his promise about federal medical cannabis raids:

The same person who directed the DOJ to shield torturers and illegal government eavesdroppers from criminal investigation, and who voted to retroactively immunize the nation’s largest telecom giants when they got caught enabling criminal spying on Americans, and whose DOJ has failed to indict a single Wall Street executive in connection with the 2008 financial crisis or mortgage fraud scandal, suddenly discovers the imperatives of The Rule of Law when it comes to those, in accordance with state law, providing medical marijuana to sick people with a prescription.

HT: Huffington Post

bellum medicamenti delenda est

Turley on Obama and Civil Liberties

In today's LA Times, GW law prof Jon Turley says what everyone who follows civil liberties already knows: President Obama has been dreadful on civil liberties:

However, President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. In his first year, Obama made good on that promise, announcing that no CIA employee would be prosecuted for torture. Later, his administration refused to prosecute any of the Bush officials responsible for ordering or justifying the program and embraced the "just following orders" defense for other officials, the very defense rejected by the United States at the Nuremberg trials after World War II.

Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses.

What I find compelling about the op-ed, however, is something most of the establishment Left can't bring themselves to say publicly:

It's almost a classic case of the Stockholm syndrome, in which a hostage bonds with his captor despite the obvious threat to his existence. Even though many Democrats admit in private that they are shocked by Obama's position on civil liberties, they are incapable of opposing him. Some insist that they are simply motivated by realism: A Republican would be worse. However, realism alone cannot explain the utter absence of a push for an alternative Democratic candidate or organized opposition to Obama's policies on civil liberties in Congress during his term. It looks more like a cult of personality. Obama's policies have become secondary to his persona.

This paragraph explains perfectly why Obama should face a primary challenge--and why the Democrats would never allow one.

No one wants to recognize that their guy/party is a sham. Political people are invested in the party system and while they are first to accuse their opponents of callow opportunism and careerism, when it happens within their own ranks, that behavior is met with the same "pragmatic" political argument and the silence is, and must be taken as, tacit consent.

This country needs a Democrat to stand on principle and challenge Obama on his civil liberties record. The professional Left, who so often pride themselves on their principles, should be leading the call for a primary challenger to keep Obama honest. Unfortunately, most of them are too busy worrying about Republican primary red meat to give a damn about what their man continues to do with the power they labored and lobbied to give him.

Mood Music Monday: Dedication to the CIC and DevGru

Now usually I don't do this...

..but credit where it is due: here's a shoutout to BHO and the badasses formerly known as Seal Team Six (now "DevGru") who took out OBL yesterday.





It doesn't make up for all the pain, disappointment, and waste of the last two years, but it's not a small accomplishment.

We will now return to our regularly scheduled skepticism and resentment of executive power.

bellum medicamenti delenda est

Crash Course in Black History: New N****r Rule

By now you've heard that President Obama has released his "long form" birth certificate in order to quell the two-year-old conspiracy theory that a liberal cabal has managed to pull off the greatest case of identity fraud in human history.

Honestly, before I get into the meat of this post, I just want to say that this was the most preposterous allegation/conspiracy theory I have ever heard. The JFK assassination Cuba-Mafia-KGB conspiracy, the 'faked' Moon landing and '9/11 was an inside job' (aka "Truthers") all have more plausible premises--and they are all bullshit too. To have pulled this off, one would have needed to plan, implement, and maintain a flawless conspiracy over the course of four decades between multiple state agencies of Illinois and Hawaii, his posh private school in Hawaii, two Ivy League schools, the Illinois Bar Association, the government of Kenya and/or Indonesia, the Social Security Administration, the State Department, the IRS and god knows what other federal departments and kept it all a secret.

Elvis and Tupac are sitting on a beach somewhere saying "They can't really believe this shit, can they?"

Anyway, a recurring complaint from the Right since the release this morning has been "I just don't get why he didn't release this sooner!" The quick answer is: because he shouldn't have to. This accusation was ridiculous on its face and for all the 'respect for the office' the Right likes to trot out when it suits them, addressing this idiocy really is beneath the president of the United States. But as my friend Adam Serwer so eloquently wrote over at WaPo's Plum Line today:

Aside from being one of the most idiotic moments in American political history, this marks a level of personal humiliation no previous president has ever been asked to endure. Other presidents have been the target of crazy conspiracy theories, sure, but few have been as self-evidently absurd as birtherism. None has been so clearly rooted in anxieties about the president’s racial identity, because no previous American president has been black.

This whole situation is an embarrassment to the country. Yesterday Jesse Jackson described birtherism as racial “code,” but there’s nothing “coded” about it. It’s just racism. I don’t mean that everyone who has doubts about the president’s birthplace is racist. Rather, the vast majority have been deliberately misled by an unscrupulous conservative media and by conservative elites who have failed or refused to challenge these doubts.

And birtherism is only one of a number of racially charged conspiracy theories that have bubbled out of the right-wing swamp and have been allowed to fester by conservative elites. Those who have spent the last two years clinging to the notion that the president wasn’t born in the United States, who have alleged that the president wasn’t intelligent enough to write his own autobiography or somehow coasted to magna cum laude at Harvard law, are carrying on new varieties of an old, dying tradition of American racism. Similar accusations dogged early black writers like Frederick Douglass and Phyllis Wheatley, whose brilliance provoked an existential crisis among people incapable of abandoning myths of black intellectual inferiority.

Indeed, asking more of black people than is asked of or expected from whites is as old as racism itself. Black 'pioneers' have always had to face extra challenges from people incapable of dealing with black achievement or legitimacy. The older generations of black folk would tell their kids--as my father told me--that black people should never try to be as good as our white counterparts: we must strive to be better because 'as good' would not be good enough. (Both because of my complexion and meaningful societal change over my lifetime, this has not been an academic or professional hindrance to me. But the message took.)

Such is the standard operating procedure to confront what has been called, most notably by comedian Paul Mooney, the "New Nigger Rule." My definition follows:

A NNR is a legal or administrative procedure which is enforced with benign pretense, yet has the demonstrable effect of abetting racism, prejudice, or otherwise just screwing the black guy. Historical examples include, but are not limited to, the Grandfather Clause, poll taxes, and literacy/constitutional knowledge tests to vote.

Nota bene: all of these are forms of disenfranchisement.

Mark Thompson of the League explains what Obama had to do to get his long form and make it public:

Quite literally, in order to release this document, the President had to ask to be treated as being above the law, even if it is a relatively trivial law in the grand scheme of things.  Quite understandably, the State of Hawaii decided that this was a wise idea.  That so many are prepared to insist that the President had an obligation to ask that he be treated as above the law from a very early date is far more troubling.

That Obama should have been expected to file a waiver to get an obscure document that no one else has had to produce and make it public to dispel a rumor based on absurd conjecture and outright lies is clearly a New Nigger Rule.

I agree with Adam that it would not be fair to call all Birthers "racists." Maligning or otherwise assigning such terms to groups of people is unproductive and usually wrong factually and morally. That said, there can be no question at all that Obama had to deal with this because he's black. That is a fucking shame, and that is why he didn't release it earlier.

And he never should have had to.

bellum medicamenti delenda est

Obama's "Plan" and All Its Hollow Glory

Since the NYT put up its paywall, I've been avoiding the site pretty steadily. But someone tweeted this handy little chart explaining the differences in the President's anti-Paul Ryan budget plan.(click to enlarge)

I'll leave it to the Left to demolish Ryan's plan, as they have already on so many occasions. Let's look at this new plan that so many were defending on Twitter today.

Medicare: "The proposal seeks to reduce the growth in Medicare spending, including lowering prescription drug spending "by leveraging Medicare’s purchasing power.""

Translation: 'Leveraging Medicare's purchasing power' is a nice way to say "extortion." When you have a virtual monopoly on medical care for the elderly--a class dependent on drugs--the monopolistic power of Medicare is a blunt tool with which to extort favorable prices from drug companies. These "savings," of course, will be paid for by younger folks who see their over the counter or chronic ailment medicine increase in price to make up for the lost revenue. We have antitrust laws, in theory, to protect consumers from monopolistic practices and price fixing. Of course, when the government does it, it's just fine. In fairness, this "negotiating" with drug companies isn't anything new, it's just going to be accelerated and amplified because of Bush's Prescription Drug Benefit.

Medicaid: "President Obama has asked governors to recommend ways to make the program more efficient. Medicaid spending would be cut $100 billion over the next decade."

Translation: I hope to cut $100 billion, but will let the governor's do the dirty work because I want to shirk responsibility if things go wrong but will happily take credit if all goes well. (cf. "Clinton's" twice-vetoed Welfare Reform of 1994)

Social Security: "Mr. Obama said that, while Social Security is not a cause of near-term budget problems, "both parties should work together now to strengthen Social Security.""

Translation: PUNT!

Military: "Military spending would be cut $400 billion over the next 12 years."

Translation: Kinetic Military Actions not pursued = SAVINGS!*

Discretionary Spending: "Mr. Obama proposed cutting $600 billion over 10 years, including $400 billion identified in his 2012 budget proposal."

Translation: I'll make symbolic cuts to maintain the entitlement programs that are actually bankrupting us.

Taxes: "Mr. Obama endorsed the Fiscal Commission's recommendation to eliminate tax breaks to both lower tax rates and reduce the deficit. He called for allowing the Bush tax cuts to expire for top earners and limiting itemized deductions for them."

Translation: We've shown we can't spend your money responsibly, so we're going to need more of it. Also, the rest of my budget commission bummed me out, so we're just gonna table the rest of that noise.

Again, Ryan's plan has its own shortcomings, but I don't know how much of the 'Twitter base' it rallied on the Right. But to believe this "plan" is anything but obfuscatory rhetoric is just delusional.

*If he's serious about making Defense cuts, great. But he's shown nothing to indicate that he is, indeed there is much more evidence to the contrary, so I won't treat it like it is.

Change: Ur Doin It Wrong

No, I'm not talking about Obama.

Even in last night's anti-incumbent "bloodbath," House incumbents had an 87% survival rate, roughly. That anyone thinks last night was a radical shift in our government is a damning indictment of the intelligence of the electorate and demonstrates an expectation to protect our professional liars class.

And these people are scared of "corporate money"--what the hell is it going to do? Knock the incumbency rate down to 84%?

Gimme a break.

bellum medicamenti delenda est.

Rev. Al: "The Gift that Keeps On Giving"

Those words were written by one of my favorite law bloggers, GW Law Prof. Jon Turley. This is why:



This, of course, makes the ramifications of this meeting all the more potent as a political weapon. Sharpton is a crank, a huckster and the Republican political equivalent of manna from heaven.

I've never been a fan of Jesse, but Obama really needs to make his peace with him and ditch Rev. Al...yesterday.

My take on the Senate Health Bill

Surprise surprise: I'm not happy that the Senate health bill passed the House and is about to be signed into law. Friends and family have tried to couch it in terms that "well, it's better than nothing." No, in fact, it's not.

Let's say you have a chronic disease that can be fatal if left untreated. Let's call it, "Debtis Entitlementitis." You have another problem we'll call "Healthus Carus" that you need to solve. If you take the wrong medication for Healthus Carus, it can make you forget about your Debtis Entitlementitis in the short term, but it will actually cripple you in 5-10 years by exacerbating every problem you have including Healthus Carus, Oldus Takecareofus, Roadus Paveus, Poorus Cantaffordus,  Pleasa Dontkillus, etc.

This is what Congress just did. Sure, a lot of people can feel better--but the underlying condition of debt has been made worse and, consequently, Congress and Obama made the problem more intractable than it already was.

It's not conjecture and it's not partisan: it's math. We have committed ourselves to spending much more money that we have. Indeed, according to GAO estimates in the 2008 Financial Report of the United States, our entitlement spending in the infinite horizon--that is, everything we've promised to pay so far--is $101.8 trillion. Yes, that's trillion. (cf. Table 6, pdf page 143; report page 137)

That's seven times the economic output of the entire United States in a given year. No, not our tax revenue--our entire economic output. To call this situation "unsustainable" is to understate the case to tragicomic levels.

Blame Bush. Blame FDR. Blame whomever you like--but the fact of the matter is our entitlement spending is going to bankrupt us. We can either address it like adults and treat the problem, or we can act like children and foolishly pretend the problem will go away by itself without ever having to face the consequences.

Quote of the Day

From hope you can believe in to disappointment you can count on. What a legacy he's building.

-Jeralyn, TalkLeft, on Obama and his latest deal to renege on federal trials for KSM et al.

Obama Seeks Help From... AL SHARPTON?!?!

Fwa?!?!

WASHINGTON—With his wavy bouffant and medallion necklaces, the Rev. Al Sharpton famously confronted government officials on behalf of black Americans. Now he has found a new role: telling black leaders to quiet their criticisms and give the government a chance.

President Barack Obama has turned to Mr. Sharpton in recent weeks to answer increasingly public criticism in the black community over his economic policy. Some black leaders are charging that the nation's first African-American president has failed to help black communities hit hard by the downturn, leaving party strategists worried that black Democrats will become dispirited and skip November's congressional elections.

Two things came screeching to mind when I read this.

1) If Obama is seeking help from Rev. Al, "desperate" doesn't quite cover his mood.

2) Assuming he asked Jesse first--and I can only imagine he would, contentious past notwithstanding--Jesse is either sick or he told the president to go [hum to] himself.

Any way you slice it, this is not a good sign for the administration just over one year into the term.

The Disconnect Makes My Head Hurt

Yesterday, HHS Secretary Sebelius toured the Sunday talk-show circuit, criticizing the health insurance industry after some disappointing talks at the White House last week. Unsurprisingly, the president today began criticizing  the insurance industry too, echoing Sebelius by complaining of price hikes and such.

The headache-inducing disconnect is induced by the fact that the health care reform bills that are currently being bribed through negotiated in Congress right now will mandate the public to buy from these erstwhile greedy bastards--further cartelizing the insurance industry. Unless the U.S. Congress, in its collective wisdom, has solved the knowledge problem, the insurance companies' profits will either swell beyond what they should or be entirely eliminated due to the imposed and inflexible regulation with no guarantee of lower premiums or out-of-pocket costs to the consumer. Indeed, if the insurance companies can't survive with the price controls the government will almost surely implement, then the U.S. taxpayer will pick up the shortfall a la Fannie and Freddie (...and BoA, GM, etc.). So while our insurance bills may not see an immediate spike (tho, I would bet they will after any bailout), the cost will be evident at tax time--especially for the poor.

And please, don't trot out the cost-saving aspects of the plans. 

Furthermore, it's nauseating to hear Dems simultaneously talk about the virtues of democracy and how the system is broken because a simple majority isn't enough to pass the bill in the Senate--despite the inconvenient reality that a majority of the American people hasn't been in favor of this massive insurance company welfare plan since at least July.

As the cliche goes, actions speak louder than words. Right now, the Democrats are saying that despite their public criticisms about the greed of the insurance companies, the government is going to force you to buy their services whether you like it or not and, in spite of you (collectively) clearly not liking it, it will be forced upon you...

...in the name of "democracy."

White House's Over-the-Top Message Control

At first, I dismissed the importance and relevance of Robert Gibbs's remark about Fox News Channel. I figured it was a one-time jab and that would be the end of it. Then, as members of the "real" media followed-up and Gibbs still didn't back down, I began to think they were approaching a very fine line to "chill" Fox's First Amendment protection, which is very dangerous ground to tread.

And now there's this:

At least one Democratic political strategist has gotten a blunt warning from the White House to never appear on Fox News Channel, an outlet that presidential aides have depicted as not so much a news-gathering operation as a political opponent bent on damaging the Obama administration.

This news is brought to you not by Fox News, National Review, or the Rupert Murdoch-owned Wall Street Journal, but the Los Angeles Times.

So, let me get this right. Not only is Fox News just an arm of the Republican party to attack all things Obama, but now the administration has decided to tell it's own supporters that they shouldn't appear on Fox to give their views--in essence, enforcing the one-sidedness of their channel?

Look, nobody with a brain thinks Fox doesn't cater to the Right. But this doesn't automatically disqualify them from being a news organization any more than MSNBC's leftward tilt disqualifies it. Fox is the highest rated cable news network, which means that the White House's efforts are aimed at depriving the largest single cable news audience of certain points of view and information. Why on Earth would the White House do this?

As I've said before, I abhor most television news. It's shallow, vapid, and more style than substance. That said, this continued assault on Fox begins to look less like a petty vendetta than it does programmatic message control. I'm not going Godwin again, I'm just saying that nothing good can come out of stifling discussions and threatening your own partisans for appearing on a network that caters to a wide audience.

I have no particular affinity for FNC--indeed, I find some of their programming repugnant. But these efforts are moving beyond spin control and are moving ever-closer to illegal and immoral governmental disruption of activities explicitly protected by the First Amendment.

This needs to stop now.

Further Empowering the Most Powerful Man on the Planet

Over at the League of Ordinary Gentlemen, Jamelle has an idea to "address long term challenges" through "meaningful legislation": fundamentally change the structure of Congress so that it's "more responsive." To wit:

Accountability is nice, but absent further institutional reform, it still leaves you with that basic problem (albeit slightly reduced). Better would be to reduce or eliminate some of those barriers, as to make better legislation possible in the first place. A system where committees are weaker, majorities are stronger and obstructionism harder is a system that incentivizes better legislation, as each member knows that their bill can make it to the floor in more or less its original state. It’s a system where there are fewer opportunities for capture by special or parochial interests, and it’s a system that actually empowers presidents to pursue their agendas.

(Emphasis mine.)

Jamelle starts off his post saying that the conventional wisdom among Lefty bloggers is that Congress is "broken" and thus needs fixing so that the president can get his important agenda through past all those darned obstructionists.

First of all, it isn't the job of Congress to enable the president to do anything. In fact, bold, lame, or otherwise bland legislative agendas are, indeed, the sole prerogative of the, er, legislature. The very first legally binding part of the Constitution reads:

Article 1 Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Not most. Not some. Not 'all but those the president or the party of greater assumed moral right feel necessary.' All. This isn't some obscure, buried clause of ambiguous meaning where intelligent people can differ. This is the first word of the first line of law that establishes our current form of government.

And it isn't that I'm naive as to 'how government really works.' Nor would I even imply that extra-constitutional power grabs are the exclusive domain of one party. Indeed, I oppose the expansion of executive power because of the fact that presidents of any party seek to enlarge their power--and whatever power you give to one president, you give to his opponents who will, eventually, succeed him.

The naivete, I would argue, is in the assumption that these heightened powers would always be used for good, or even assumed that they would be used for good on net. Despite the disarray of the current GOP, the notion of a permanent Democratic majority is just as fanciful as the permanent Republican majority imagined in the early Bush (43) years. Political tides change and, invariably, the party in the White House changes also. I can't imagine Jamelle or Yglesias or any number of Lefty bloggers arguing for this power four years ago. The reason for that is, of course, their compatriots would have looked at them as if they were mentally defective to argue to give W. more power. Yet, for some reason, there is a consensus among these same folks that we do exactly that today as if a Republican will never come back into office.

Whatever power you give the guy you agree with, by way of our precedent-based system of laws, you give them to your political adversaries. Furthermore, the precedent given is not only that of the explicit power granted, but the power to expand the limits of power generally. Thus, by saying this or that constitutional limit doesn't apply because you have compelling reasons, any other constitutional limit is therefore vulnerable to the same argument, rendering the Constitution itself moot.

You would think that adherents to the party that has one--ONE!!--president elected twice since FDR (who governed much like a Republican after the first two years) would be wary about vesting too much power in the presidency. But, ah, how short-term our memories are when your guy (or gal, I suppose) gets in power.

A Republican case in point: Yoo'll never guess who lamented the extra-constitutional executive powers of the Clinton administration:

"President Clinton has exercised the powers of the imperial presidency to the upmost ... [and] undermine[d] notions of democratic accountability and respect for the rule of law ... ."

Of course, this is from the same man who would write this with a straight face, just two years later, what later became known as a "Torture Memo":

“our Office [of Legal Counsel] recently concluded that the Fourth Amendment had no application to domestic military operations.” (Emphasis in original)

Even if one was so naive to think that every president from their party was a politician with the heart of gold and the wherewithal (i.e., superhuman knowledge) to effectively implement the "meaningful legislation" Jamelle et al. would like pass, such contortions of our rule of law leads to the unraveling of our most fundamental protections against state encroachment. This isn't some reductio ad absurdum argument: this is a playing out of rights preferences of one political party over the other. One party is marginally better on property rights, the other on civil liberties--or at least, they pretend to be. But if you grant one of them the power to run roughshod over the rights and liberties they find less compelling, you grant the other side the very same. Such actions, by either party, are inimical to individual liberty.

Because of, not in spite of, Congress's numerous abrogations of its Constitutional duty to act as a check on the Executive and punting its prerogative to declare war by writing Bush a blank check on the Iraq invasion, we're facing many of the problems the so-called "Progressives" have been complaining about for years. And it's not all the Republicans fault: one only has to look to the recent half-assed "debate" on PATRIOT Act reforms and State's Secrets protections sought by the current administration to show that civil liberties and transparency aren't much more popular at either end Pennsylvania than they were last year.

Nevertheless, the "Progressive" idea is to further empower the most powerful man on the planet to charge headlong into some new foray of ill-conceived and expensive adventure in the name of what's best. How this ever got the label of "progress" is fully beyond me.

Congress wasn't meant to work efficiently. (and thank Madison for that!) The fact the president can't just come up with an idea and make it so is the essence and beauty of deliberative democracy, not some sort of calamity.

In the future, as a practical matter, the next time Jamelle et al. want to give Obama more power, perhaps they should stop and think, "What would W. do with it?"

UPDATE: It should be noted that weeks ago, I happened upon a blog entry Yglesias wrote in 2005 arguing for the rejection of the filibuster. I never changed the post to reflect that, and since have. 10 points for consistency, but still 0 points for efficacy.

Just for Fun Friday

As a facebook friend noted earlier, this video got even funnier after the news came out today.

Who Gives a...

Really?

Jenny Slate, one of two actors hired over the summer to join the repertory cast, was making her "SNL" debut in the sketch, called "Biker Chick Chat," which aired in the last 20 minutes of the season premiere. Slate and Kristen Wiig played surly motorcycle babes who used the substitute words "frickin' " or "friggin' " in every sentence they spoke.

But when, at about 12:43 a.m., Slate was supposed to say to Wiig, "You stood up for yourself, and I friggin love you for that," she mistakenly said the real f-word instead. Slate made a face -- puffing up her cheeks, basically -- but the sketch went on with no other problems.

Lorne Michaels, the show's executive producer, said from New York late yesterday that the moment was especially traumatic for Slate because "it was literally her first time on the show. There was nothing dirty, just a slip of the tongue. It was 'frickin', frickin', frickin' ' and then boom! The pain that Jenny is going through is, I'm sure, considerably worse than that experienced by anybody who saw it."

Michaels indicated that times may have changed enough since 1981, when "SNL" player Charles Rocket uttered the word, so that the incident may not cause the uproar it did then. He said the NBC switchboard did not "light up" with angry viewer phone calls. And because "SNL" is tape-delayed to the West and Midwest, the word was only heard in the Eastern portion of the country.

...the FCC went wild doling out enormous fines for alleged obscenities during the George W. Bush era, it's believed in some circles that the Obama administration will have less interest in such matters.

The fact that it's ever a concern for the federal government what naughty words are said on television ? There was a recent case FCC v. Fox, where the Supreme Court upheld speech restrictions imposed by the FCC because, in effect, harm is caused by people hearing expletives during certain times of day. To which I say, to quote Eric Cartman (link not remotely safe for work):

FUCK FUCKITY FUCK FUCK FUCK

What part of "Congress shall make no law..." was unclear? We have Americans dying and being maimed daily in wars overseas--and, in the process, inflicting death and suffering upon others--we have a criminal justice system that incarcerates more than any other nation on the planet (hundreds of thousands of which are imprisoned for crimes against no one, it should be noted) and our government is nearly criminally borrowing money against wealth not yet made by generations not yet born and someone saying "fuck" is somehow important?

I will write more on the supposed decline of civility (e.g., Kanye, Joe Wilson, Serena, etc.) and what it means to American society today soon, but this is just absurd. You can debate the propriety of using terms like that all you like--and there is an excellent and persuasive argument for not swearing--but that anyone would even consider getting the government involved over an uttering of certain phonetic syllables that only offend sensibilities (as opposed to threats or 'fighting words,' for example) is wholly offensive to mine.

The government should stick to what it's good at its job and leave people to their own language choices. I hope Shales is right in thinking that Obama will pull back the reins on the FCC, but I'm not holding my breath.

Fishy Facts