It is a close contest which recent assertion of executive authority crowns the rest, but the Administration’s potential skirting of the Senate’s treaty power in negotiating an international agreement on climate change ranks high in the running. The Constitution’s explicit partnering of the Presidency and the Senate in binding the nation in global agreements, combined with the two-thirds majority needed in the upper chamber of Congress to affirm them, points to the unique dangers of cutting one institution out of the process. President Obama is not the first to do this.
I used to think I wanted the job security of the tenured professor but now I think what I really want is to run the CIA. Nothing, but nothing, gets those guys fired. John Brennan, for one, has retained his position after presiding over a formal, frontal assault on a coordinate branch of government. He has kept it after further mocking the principle of the separation of powers by redacting a Senate report on CIA interrogation practices so thoroughly that even already public material is blotted out.
That drip-drip-drip sound you hear is condescension falling from the mouths of skeptics appalled that such as Lynne Cheney, who does not even hold a tenured position on a university faculty and whose hands are sullied by the actual practice of politics, to say nothing of the side on which she has practiced it, and whose previous writings have not always sounded the depths of profundity, has now dared without so much as the permission of a double-blind peer-review process to produce a sober, scholarly biography of James Madison and, what is worst of all, with a prestigious trade press.
Poverty has many fathers, but its grandparent is scarcity. This is an inherent and ineradicable feature of the human condition—indeed of the natural world. Consequently, attempts to wage war on poverty as opposed to alleviating its symptoms will always become quagmires. It is thus regrettable that Paul Ryan has signed up for a new assault.
There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.
After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.
Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.
Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.
The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.
John McCain has pronounced on the Paul-Perry-Paul war of foreign-policy op-eds that are available here, here, and here, so let us review the bidding. To believe there are things that exceed U.S. control is to accede to an “absence of American leadership” to which all global ills are traceable. To believe other things, controllable or not, fall outside of U.S. interests is to advocate “a withdrawal to a fortress America” such as preceded World War I. Say what one will about Senator McCain, he knows how to spice up a Sunday show with stark simplicities.
The red herring of impeachment is forcing the rhetorical argument about the swollen executive to unhelpful extremes. Those in a rhetorical rush to impeachment, especially those who have been threatening it for years, may well be guilty of defining the ultimate constitutional sanction down. The proper response is to argue on prudential grounds against it. It is not—as many are doing—to define impeachment up.
This week witnessed discordant events that may signal a renewal of congressional government while illustrating the peril of relying on another branch of government—the judiciary—to revive it.
In the first, the Supreme Court on Monday granted certiorari in a case, U.S. Department of Transportation v. Association of American Railroads, that could mark the first time since pre-New Deal jurisprudence that it invalidates a law on grounds of nondelegation, the principle that Congress cannot transfer its legislative authority to another branch of government. Then, on Wednesday, Speaker John Boehner announced plans for the House to sue President Obama over non-enforcement of laws.
The easy shot against Glenn Greenwald’s No Place to Hide: Edward Snowden, the NSA and the U.S. Surveillance State would be to dismiss its warnings as immoderate and overwrought. “Converting the Internet into a system of surveillance,” he declares nearly off the bat (6), turns it “into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.” Similarly, “[t]he US government had built a system that has as its goal the complete elimination of electronic privacy worldwide.” (94) These are bold claims on which to deliver. And yet, piling evidence atop evidence, Greenwald does.