To clarify my post from last week, the delegation of military policy on the part of Congress isn’t unlimited. Presidents have a very wide range of action when it comes to having the military do things. On the rare occasions on which the president gets to the left of Congress on civil liberties, Congress can normally be counted on to bestir itself for some rare action to oppose it.
Author Page for Scott Lemieux
A good NYT editorial on the Republican nullification of the CFPB:
The consumer bureau has taken seriously its mandate to protect the public from the kinds of abuses that helped lead to the 2009 recession, and it has not been intimidated by the financial industry’s army of lobbyists. That’s what worries Republicans. They can’t prevent the bureau from regulating their financial supporters. Having failed to block the creation of the bureau in the 2010 Dodd-Frank financial reform bill, they are now trying to take away its power by filibuster, and they may well succeed.
The bureau cannot operate without a director. Under the Dodd-Frank law, most of its regulatory powers — particularly its authority over nonbanks like finance companies, debt collectors, payday lenders and credit agencies — can be exercised only by a director. Knowing that, Republicans used a filibuster to prevent President Obama’s nominee for director, Richard Cordray, from reaching a vote in 2011. Mr. Obama then gave Mr. Cordray a recess appointment, but a federal appeals court recently ruled in another case that the Senate was not in recess at that time because Republicans had arranged for sham sessions.
Two related points:
- Why did the legislation require a director for the agency to operate? Even granting that I can’t blame anyone for failing to anticipate that a hack Republican judge would read the recess appointment power out of the Constitution, given the context of constant Republican obstruction this was either a foolish oversight or active sabotage.
- Let’s be clear where a majority of the blame belongs here: on the Senate Democrats who prioritize their individual prerogatives over the good of the country and the long-term interests of their party by preserving the filibuster. Again, whether the relevant senators are obscenely self-centered, hidebound by “traditions” that are transparently unworthy of preservation, or are just conservatives given the effects of establishing new equilibria that make the country progressively less governable it’s all the same in the end.
Shorter Verbatim Dick Cheney: “Frankly, what [Obama] has appointed are second-rate people.”
This is a case where the jokes write themselves.
- Melissa Gira Grant on the bad effects of criminalizing sex work. “It is not sex work that exposes sex workers to violence; it is our willingness to abandon sex workers to violence in an attempt to control their behavior.”
- A compelling story about the brain-damaged former NFL
starplayer George Visger. “Don’t get the wrong idea. Pissing blood still hurts.”
- Give Jay Bybee this: he’s consistent.
- Pretty much what Maura Johnston said about Rick Moody. The issue isn’t not liking Taylor Swift (which is perfectly fine; I don’t particularly care for her music myself, although I think it’s silly to claim that she’s untalented.) The primary issue isn’t even misogyny, although I agree that apart from their gender I can’t figure out what Swft and Natalie Imbruglia have in common. The biggest problem is that Moody seems fully immersed in nonsense about “authenticity.” There may well be good arguments against Swift’s popular and critical standing, but Moody’s arguments — “OMG, drum machines!” “Studio musicians!” “Marketing!” “Ambition!” — certainly aren’t those. Again, there’s nothing wrong with contemporary top-40 pop music not generally being to one’s taste — I am also an old white guy, and I don’t listen to a great deal of my own volition either — but to call people who have different tastes “dupes” is really irritating.
If it is reporting, it’s bad reporting. Saletan takes the claims of the most senior architects of torture at face value. These guys know more about the program than almost anyone, so we can’t afford to reflexively discount what they say about it, if we want to understand it, but let’s keep in mind that they are professional deceivers who, at best, skirted the law and at worst broke it. They see themselves as fighting an ongoing war and they know that what they say now will have implications for how that war goes. They have every reason to lie about what they did and how they did it.
Saletan blithely ignores basic critical questions like: If torture was so effective, why didn’t we catch Bin Laden during the height of the torture era? Why did it take over a decade?
He comes across as utterly credulous, producing lines like: “So, for what it’s worth, there were internal checks on the practice, at least because the CIA would be politically accountable for what its interrogators did.” Right. That’s why Jose Rodriguez deleted all those interrogation tapes.
Saletan resorts to pompous weasel words when he lacks the courage of his convictions. He’s too timid to come out and say that he approves of the “enhanced interrogation program” as it was used in the hunt for Bin Laden, but he keeps tipping his hand with the language he uses to describe the panelists’ arguments.
For example, he writes that the panelists “scorned the delusion that these methods hadn’t produced vital information.” By using the word “delusion” instead of “belief” or “claim,” Saletan implies that the pro-torture contingent is right without having to provide any evidence for their dubious claim that torture produced vital information that couldn’t have been gotten any other way. According to Saletan, the panelists “trashed the Obama-era conceit that we’re a better country because we’ve scrapped the interrogation program,” the word “conceit” implies that Obama is wrong or dissembling.
It’s all this good, so you should read it. Lindsay did, however, leave me one piece of low-hanging fruit. Amazingly, he actually buys the ol’ Jonah Goldberg “fraternity hi-jinx” routine:
4. We had tested enhanced interrogation techniques on ourselves.
Rodriguez said he quickly accepted the use of enhanced interrogation in part because “I knew that many of these procedures were applied to our own servicemen. Tens of thousands of U.S. soldiers had gone through this.” If these methods were safe and moral to use on Americans, weren’t they safe and moral to use on our enemies?
I have enough faith in our audience to assume that they know what “consent” means, and hence that I don’t need to belabor how pain one agrees to be subjected to knowing it’s of finite duration and won’t be escalated is not remotely comparable to being tortured involuntarily. I can’t believe that anyone is still trying to sell this argument, and it’s even more amazing that anyone would buy it.
“Some of the one-liners, for instance, were not very strong. Oh, and then you started reading a goddamned Jonah Goldberg column.”
Good to see that Rupert Pupkin landed himself a
gig website. Although it’s kinda sad that he couldn’t even get Pajamas Media to spring for it.
Fox & Friends, the dumbest show in the history of television, asserts that the United States can’t have solar power because it doesn’t get the consistent sunshine of…Germany.
You will not be surprised to know that this turns out to be as false as it sounds.
Ultimately, if the president’s arbitrary war powers are going to be checked Congress needs to step up. I have a piece up at the Prospect explaining about why a Congress that will systematically obstruct nominees it has no objection to will continue to fail in its responsibilities:
Will Congress reassert its authority? It seems very unlikely. “Congress has never shown an interest in curbing the use of force or limiting the resources at a president’s disposal in an ongoing conflict,” says Andrew Polsky, author of Elusive Victories, a valuable new history of presidential war powers. “Simply put, lawmakers do not want ownership of a war, especially one that isn’t going well.” Because wars tend to cause the public to rally around the president at the beginning, but also tend to lose popularity the longer they continue, Congress has little incentive to check presidential war powers at any stage of the process.
The Framers believed that the branches of government would jealously guard their powers: “Ambition must be made to counteract ambition,” Madison famously argued in Federalist #51. But it doesn’t always work out that way. Or, more precisely, political ambition sometimes compels legislators to delegate responsibility for difficult choices to the other branches. The distribution of war powers has become imbalanced, but not so much because the president has “usurped” congressional authority as that Congress has happily abdicated its proper role. The public needs to start blaming both parties in Congress as well as the White House for abuses in the War on Terror. Until it does, Congress is likely to continue passing the buck.
Read the whole etc.
The latest. I think this is the most instructive:
The random “welfare bill” accusations. This one is a wild card that is fairly unspecific. Last week, original VAWA sponsor Sen. Orrin Hatch of Utah said that the expanded provisions took his “landmark legislation, only to come right in and change it to make another welfare bill.” There’s nothing new in the bill that represents “welfare,” unless that’s just code for “groups I don’t really want to help.”
I think that pretty much gives away the show on multiple fronts.
In comments to djw’s post about law and social change, Russell Arben Fox argues:
I just wanted to get across the idea that the process of democratic deliberation regarding same-sex marriage is at a highly fluid point right now; has been for 15 years, at least, and probably will continue to be (I think rightly should continue to be) for years to come. As such, it’s not as though our polity, I think, is currently at a point where the harms (which I think exist, just not quite on a constitutionally valid level!) of exclusively recognizing heterosexual marriages are part and parcel of an entrenched, debilitating, hate-filled social life, which of course is what Plessy v. Ferguson had given us.
T. Paine responds:
I suspect you’re confusing cause and effect when you say that Plessy “gave” the US an “entrenched, debilitating, hate-filled social life.” I’d argue that the apartheid-like laws and judicial decisions creating de jure racist separation and domination grew out of that “hate-filled social life,” and not the other way around. There are very few times that the Court leads public opinion (Brown and Loving being inspiring counter-examples, AFAIK).
T. Paine is, I think, clearly correct here. Plessy was essentially a symbolic decision that reflected and already-entrenched consensus; it did almost nothing to cause it. I urge anyone interested in the question to read Klarman’s book on the subject, but to summarize:
- Segregation was already very well-entrenched by 1896. Reconstruction had been ended by the Tilden/Hayes deal, and African-Americans had already been disenfranchised everywhere in the confederate states by 1895.
- Not only did the Supreme Court’s decision merely reflect well-established norms, the segregation laws themselves largely reflected already-existing practice and were largely symbolic. Segregation was established and enforced primary by (effectively state-sanctioned) private violence and economic coercion; segregation would have persisted even had it not been required by law.
- To get a sense of how little the Supreme Court would have accomplished by deciding Plessy correctly, one need only look at the areas — jury selection and voting — where the Court even in its worst periods struck down explicitly racist state practices. These decisions were entirely ineffectual because states were able to accomplish the same ends under laws that were formally race-neutral.
- And, of course, there was no chance in 1896 that the Court would decide Plessy correctly; the outcome was overdetermined. The Supreme Court reflects the views of national political elites, and national political elites in the Gilded Age had absolutely no interest in enforcing the Civil War Amendments for any purpose other than nullifying economic regulations. (Even Harlan’s dissent was explicitly committed to white supremacy.) Consider, for example, that Congress was not merely authorized but required under Section 2 of the Fourteenth Amendment to respond to disenfranchisement by reducing the representation of the disenfranchising states. Needless to say, this didn’t happen. The Supreme Court in Plessy was reflecting the views of national political elites, not creating them.
- Another potentially bad effect of Plessy could have been creating a bad precedent that made the Supreme Court slower to respond to increasing support for civil rights. The problem is that the opposite was true; the Supreme Court was well ahead of the curve compared to the rest of the national government in terms of requiring the formal desegregation of both higher and lower levels of education.
Plessy didn’t create a climate of hate; it reflected one.
And as I’ve argued before, the same is true of the other great symbol of 19th Century Supreme Court evil: Dred Scott. Taney’s views were those of an utterly mainstream Jacksonian Democrat; it didn’t prevent Congress from passing any law there was any chance Congress was going to pass, as the fact that both Buchanan and the Democratic leadership in Congress urged the Supreme Court to rule the way they did reflects; and when Lincoln took office he just ignored the decision, which was overruled by two constitutional amendments less than a decade after he took office. Had the Supreme Court refused the urging of elected political elites to take and decide the case broadly the Democratic coalition would have fractured over Lecompton anyway, and had the Supreme Court decided the case in a morally just manner the result would have been secession, only with a Doughface numbnuts in the White House instead of Lincoln. Just as the positive effects of Brown tend to be overstated, the Supreme Court tends to get blamed for causing deep-rooted political trends it merely reflects. And I would say Brown mattered substantially more than Plessy or Dred Scott.
…rea in comments:
I’d be curious to see an example of Lincoln ignoring the decision. I’d argue that, on the contrary, he carefully complied with it, although he disagreed with it. The Emancipation Proclamation in particualr was carefully crafted to use the president’s war powers to get around Dred Scott.
Not only did Lincoln’s attorney general grant citizenship status to an African-American, in 1862 he signed legislation banning slavery in the federal territories; I’m not sure how you can repudiate Dred Scott more directly than that. Nor do I understand how the Emancipation Proclamation was altered to accommodate Dred Scott. The EP certainly reflected Lincoln’s view that the federal government could not interfere with slavery in the states that were still in the union, but this has nothing to do with Dred Scott, which was about the federal power to limit slavery in the territories. Moderate Republicans like Lincoln didn’t dispute that the federal government lacked the authority to ban slavery in the states.
I don’t get the chance to say this often, but Bloomberg really stepped up and did the right thing here:
Well look, I couldn’t disagree more violently with BDS as they call it, Boycott Divestment and Sanctions. As you know I’m a big supporter of Israel, as big a one as you can find in the city, but I could also not agree more strongly with an academic department’s right to sponsor a forum on any topic that they choose. I mean, if you want to go to a university where the government decides what kind of subjects are fit for discussion, I suggest you apply to a school in North Korea.
The last thing that we need is for members of our City Council or State Legislature to be micromanaging the kinds of programs that our public universities run, and base funding decisions on the political views of professors. I can’t think of anything that would be more destructive to a university and its students.
You know, the freedom to discuss ideas, including ideas that people find repugnant, lies really at the heart of the university system, and take that away and higher education in this country would certainly die.
Give Bloomberg this: he’s infinitely preferable to Giuliani.