Monday, September 1, 2014

The 'We Can't Wait' Clause

By Charles C. W. Cooke
Thursday, August 28, 2014

Unlike most American presidents, Barack Obama took his inaugural oath of office twice, the latter affirmation serving as a private belt-and-braces remedy to a verbal mistake, the former as the usual public spectacle. Four years later, he repeated the trick, promising fealty first during an exclusive White House ceremony, and then, a day later, before the nation at large. Thus did our 44th president bring to a remarkable four the number of times that he had solemnly sworn to faithfully execute the Office, and, to the best of his ability, to preserve, protect, and defend the Constitution of the United States. As far as I am aware, no other commander-in-chief has so ardently professed his zeal.

And yet, despite this unprecedented quartet of repetitions, the pledge appears to have rather faded in the imagination. Since the Democratic party lost control of the House in 2010, Obama has taken to speaking as if the United States were in an existential crisis. Touting his preferred unemployment legislation, the president promised dramatically in 2011 that “if Congress won’t act, I will.” A year later, adumbrating his coveted cyber-security measures, he threatened the same. In 2013, while selling his plans to alleviate climate change, Obama doggedly assured the press that “if Congress won’t act soon to protect future generations, I will.” In June, slamming the legislature for declining to acquiesce to his agenda, Obama let viewers know that if the House of Representatives wouldn’t act on immigration, he would have to do it himself. And, in the early part of this week, the New York Times reported that the treaty-making power was to be abused as well, with the president attempting to establish a new climate agreement by taking a solo end-run around the Senate. In his second term especially, this has become a favorite approach — the product of a deep-seated confidence that the country is more closely wedded to his political program than it is to the settled legal order. “I promise you,” Obama affirmed earlier in the month, “the American people don’t want me just standing around twiddling my thumbs and waiting for Congress to get something done.”

Democracies being volatile things, it is difficult to know precisely what the American people “want” the president to do. Either way, it is wholly irrelevant to the question at hand. I am quite sure that it is frustrating for Barack Obama that he happens to be president of the United States at the same time as the House of Representatives is controlled by the Republican party. I daresay, too, that it was irritating for George W. Bush that he happened to be president at a time during which there were insufficient legislators to indulge his own immigration plans. But, one might ask, “So what?” However they might have conceived of themselves and their agendas, neither our 43rd nor 44th presidents were possessed of a cosmic right to see their programs codified into law. Instead, they were and are but one cog in a large machine — a machine, it should be remembered, that deliberately stations the executive as one of the least important players within the legislative field. In America, presidents enjoy the right to use their limited powers to get as much of what they want as is possible. But they enjoy nothing more. When his ambitions are tempered by the ambitions of the other elected figures within the structure . . . well, nothing happens. That, I’m afraid, is how separation of powers works.

More importantly, perhaps, that’s how separation of powers is supposed to work. At the time of writing, the United States is not in extremis — and nor are its political arrangements historically egregious. Instead, the system is humming along nicely. There is little point in having a written constitution if the president can merely free himself from its restrictions when he deems them irresponsible. Nor, for that matter, is there much virtue in the people’s sending men and women to Washington to serve as a check on the president if the very act of being checked provokes him into circumventing the rules. Which is to say that Obama is irritated not with his inability to deal with imminent catastrophe, but with business as usual, and his lamentations amount not to a Churchillian roar but to a whine. On a human level, one can empathize. It is never nice to be thwarted when you believe that you have the only acceptable answers. On a legal level, though, one can do little more than shrug. Congress was elected, too.

Typically, these principles have enjoyed broad acceptance in America. No doubt they will again. If next year a Republican Senate turns the tables and renders President Obama the “obstructionist,” do we expect to hear Mitch McConnell explaining that he has been forced by Obama’s “unique” intransigence to pass laws without the president’s signature? Will we see a McConnell Senate seeking to form GOP-friendly proto-treaties with other nations? Will the House of Representatives start to issue the pardons that the president won’t on the grounds that they are “too important” to wait for? Might John Boehner begin to command the armed forces and to fly around on Air Force One, justifying his appropriation on the grounds that Obama is uniquely absent on the world stage and that the consequences of his absence are too deleterious to allow? Will the legislative branch announce that it “can’t wait,” and cut the corporate tax rate on its own? Of course not. Clearly, these would all represent intolerable hijackings of the executive branch’s role. One wonders, then, why we are we expected to indulge the practice the other way round. Are appeals to expedience less problematic when the president, and not the legislature, is the one indulging in the seizure? Congress has considered the Dream Act 24 times in the last twelve years. Each time — regrettably, in my view — it has declined to pass it. In what possible universe does this suggest that the president should go it alone?

Evidently, the answer is Barack Obama’s universe, for his are not hollow threats. Having initially assured his critics that he was not an “emperor” or a “dictator” or a “king,” and that in consequence he could not possibly achieve the (laudable) goals of the Dream Act without congressional assent, the president later took to trafficking in the nefarious proposition that he has been “forced” by circumstances to consider extralegal solutions and, thus, to rewrite immigration law on the fly. Elsewhere, he has repeatedly and illegally delayed Obamacare in order to aid his party; backtracked fully on his insistence that Congress, and not the president, decides when military action can be legitimately taken; arrogantly assumed that he can rejigger the tax code without legislative approval; and routinely taken such an expansive view of the executive’s role that he has managed to provoke a divided and fractious Supreme Court into sharp and united admonition. Now, by all accounts, we are on the verge of another two usurpations — one a radical change to the nation’s immigration rules, the other a “treaty” that is not a treaty. Why, pray, if these are both within the president’s bounds, were they not executed before now?

Justifying his infringements, the president typically submits that Congress has in some way abandoned its role, and that he is obliged by expedience to step in. This asseveration rests unsteadily upon the false presumption that Congress’s role is to agree with the executive branch, rather than to make law. It is not. Even if we were to agree wholeheartedly with Barack Obama that Congress’s judgment is poor, it would remain the case that there is no provision in the Constitution that makes the legislature’s absolute role conditional upon its good sense. On the contrary: If the president can’t get Congress to agree to what he legally needs them to agree to, he doesn’t get to do what he wants to do. This is so whether Congress is packed with angels or with clowns. It is so whether Congress adores the president or loathes him, whether it is active and engaged, and whether it is idle and lackadaisical. And — crucially — it is so whether Congress is popular or it is unpopular. Public opinion matters in the American system come election time, mass plebiscites serving as the basis by which our representatives are chosen and our sentiments established into law. But it has no bearing on the day-to-day legal operation of the government, nor upon the integrity of the rules that govern that operation. If one of the elected branches proves recalcitrant, steadfastly ignoring what the voters want, the remedy is electoral, not legal. The integrity of the constitutional order, suffice it to say, is not contingent upon the transient public mood. That way lies chaos.

Knowing that appeals to raw power are jarring to the average ear, those who have taken to defending the president’s imperialism tend instead to sell their wares by introducing complexity where it does not belong. It is the case that some parts of our Constitution are vague and open to interpretation. But not all. Alas, over the last six years, we have been told that there is considerable nuance even in those portions that have been taken for more than two centuries to be utterly straightforward. Does the president have to faithfully execute the laws as they are written? That, apparently, is complicated. Does the ratification of treaties really work in the manner that the Constitution prescribes? Ooh, a tricky one! What about Article I, which makes it clear that all legislative powers belong to the legislature? Sure, but only if Congress behaves itself. Must the executive branch adhere to the established budget and borrowing process, or can it mint trillion-dollar platinum coins if Congress won’t acquiesce with its demands? This too, it seems, is unclear. Can the president deem the Senate to be in recess and make appointments without them? Why not, man? So deeply has this rot set in — and so ready have political opportunists proved themselves to abdicate their responsibilities in favor of political victory — that we have been treated to the sight of a three-term senator and majority whip claiming with a straight face that the president can merely “borrow” congressional power if it is not forthcoming.

He must do no such thing, for an assault on any part of our settlement is an assault on the whole. To the extent that Obama has been accorded political power, he may use it, and use it to the fullest. Beyond that, he is tightly and rightly circumscribed in his authority. As a matter of both propriety and legal rectitude, there can be no place within the American constitutional order for a president to menace Congress with threats. Not now, not tomorrow, not ever. Like Sir Thomas More in A Man for All Seasons, Barack Obama would profit from the recognition that it is for his own good that he is expected to give the Devil the benefit of the law. By demonizing one’s opponents and making legal excuses in result, it is easy to make the men in the cheap seats applaud and holler. But before long, somebody else will be taking the oath, and wondering, as he promise the best of his ability, just what he might put over on the rest.

A Question For Democrats: What Can’t Obama Do?

By David Harsanyi
Thursday, August 28, 2014

Enforce laws at your political leisure. Name recess appointments when there’s no recess. Legislate through regulation. Rewrite environmental laws. Rewrite immigration policy. Rewrite tax legislation. Bomb Libya. Bomb Syria. All by fiat. All good. The only question now is: what can’t Barack Obama do without Congress?

How about joining binding international agreements without the Senate’s consent? Also, good. The New York Times reports that Obama, who failed to pass sweeping domestic climate-change legislation in his first term, is “working to forge a sweeping international climate-change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.”

Compel? That’s ok. Just ask Jonathan Chait, who argues that there are a number of reasons why the Senate’s consent isn’t really necessary. Mostly, though, when you really consider the “seriousness and urgency — you can’t un-melt a glacier — the broad way to think about climate politics is that Republicans have ceded the field completely.” Well yes, that’s definitely a broad way to think about any issue. A bit authoritarian, sure, but as the Constitution probably says somewhere, when you deem an issue super important, feel free to ignore the rest of this nonsense and do what’s “right.”

In this case, if an American fails to participate in environmental scaremongering, if he believes in human adaptability over unproductive panic, if he reasons that the benefits of fossil fuels usage outweigh the benefits of turning Luddite, and if he votes for people who won’t support the United Nations’ prescriptions for dealing with climate change, he has relinquished any right to participate in the debate. Sounds reasonable enough.

As always, ad hoc justification to come.

The United States doesn’t always use the treaty provision in the Constitution to enter into international deals. But if an agreement is “sweeping,” involves a long and costly commitment from the United States, and has the ability to stop glaciers from melting and save the Earth, isn’t it exactly the sort of pact the Treaty Clause was meant to cover? In truth, even if the administration finds a way to enter into a “politically binding deal” in Paris a couple of years from now (and it’s unlikely such an agreement would ever really be binding so don’t get too worried) it would still be an abuse of power.

Now, run-of-the-mill presidents may only enter into international treaties with approval of two-thirds majority of the Senate. According to the New York Times, though, the Obama administration believes it can “sidestep that requirement.”  I realize it’s schmaltzy and archaic and completely reactionary to mention this sort thing: but Obama swore to preserve, protect and defend the Constitution of the United States not to work hard to circumvent the separation of powers.

Today, though, we have Treasury Secretary Jack Lew looking for ways to unilaterally block completely legal corporate tax inversions without Congress. We have an administration reportedly looking for ways to allow millions of illegal immigrants to remain in the US – which, done legislatively, I happen to believe is the right thing. Now, granted, it must get exasperating to deal with a legislative branch that acts as if deciding what legislation is passed is within its purview. It’s possible that Obama is simply trying to bait some disaster-prone Republicans into shutdown mode before the midterms – which makes the whole spectacle even more reckless.

Then again, since Josh Earnest would never ever lie to the American people, we must take him at his word. “The president is determined to act where House Republicans won’t,” he says on immigration, “and there is strong support for that all across the country.” Since Republicans can only pass legislation, Obama must be planning to unilaterally reimagine the law.

And pundits, no doubt, will scurry to rationalize the abuses that they protested when the other guy was running things. The first instinct is to protect and the second is to cobble together the defense. Obama, they’ll tell you, has issued fewer executive orders than other presidents – as if the absolute number of unilateral moves rather than the content and impact of those moves is what matters. These are many of the same pundits and operatives who ridiculed the idea that Obama’s recess appointees to the National Labor Relations Board were there unconstitutionally – until all nine justices of the Supreme Court found that they were.

“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America,” then-candidate Obama declared years ago.  You can imagine what might have transpired if George Bush had argued that a lack of seriousness regarding a “broken” Social Security program – and the obstruction of his reform efforts – meant that Democrats had ceded the political field on the issue and should be sidestepped. It might not have gone over that well. Then again, liberal pundits seem to be under the impression that the issues we face today are the most significant in the history of mankind. Every liberal hobbyhorse becomes a moral imperative. And as frustration mounts, the abuses grow and the excuses get uglier.

Teachers Hate Poor Kids

By Kevin D. Williamson
Friday, August 29, 2014

Alberto Carvalho, the highly regarded Miami-Dade schools superintendent, jokes that he wants to be the most “underpaid” public servant in the country. Underpaid? Public-school types keep using that word; I do not think that it means what they think it means.

I don’t really want to beat up on Carvalho, who seems to be a pretty good guy doing some pretty good things. But bottom lines matter. Under the leadership of the district’s (“underpaid”) $320,000-a-year superintendent, who has a $4 billion budget at his disposal, a fifth of Miami’s tenth-graders still read so poorly that, in the bland words of the education bureaucracy: “Performance at this level indicates an inadequate level of success with the challenging content of the Next Generation Sunshine State Standards for reading.” Carvalho blames this on “diversity,” the fact that many Miami students are learning English. Reasonable enough. But 54 percent of Miami-Dade’s tenth-graders get Florida’s lowest rating for math, and multiplicaci√≥n de fracciones is what it is in any language.

For this, Carvalho has been celebrated, feted, and splendidly compensated. Even conservative education reformers have good things to say about him — as they probably should. He was Florida superintendent of the year for 2014, he was national superintendent of the year for 2014, his district won the prestigious Broad prize in 2012 as the most improved urban school district, and he is said to have recently turned down a job in the Obama administration. But good by comparison isn’t the same as good: His district includes a high school in which the dropout rate is 55.2 percent — a school with the words “stellar” and “leadership” in its name, two words that, like “underpaid,” apparently mean something else in Miami.

You know what Miami is by Florida standards?

Above average.

According to NPR, more than half of Florida’s college-bound graduates in 2011 “couldn’t read, write or solve math problems well enough” for college, and required remedial education. In that crowd, Carvalho stands tall, indeed: Best of the worst.

That being the case, some Florida families are looking for the exits, especially those in low-income areas where the schools tend to be even worse than average. For the moment, Florida accommodates them, offering a $5,272 tax credit to help parents send their children to schools of their own choosing, including private and religious schools. Yesterday, the teachers’ unions and the Florida School Board Association filed a lawsuit to stop the program, and to cruelly strip 70,000 low-income families of the ability to choose their children’s schools, on religious grounds.

The religious argument is bunkum. The First Amendment prohibits the establishment of a federal church; the Netherlands, one of the most secular countries on Earth, directly funds education in religious schools, and nobody would mistake it for a country with an established church. (The Dutch Reformed Church was disestablished in 1798.) But the union goons are always happy to resort to bigotry and the tools of bigotry, and also are suing under Florida’s Blaine amendment, an atavistic vestige of 19th century anti-Catholic fervor and anti-immigrant sentiment that forbids aid to “sectarian” schools. Thus are Florida teachers deploying the Ku Klux Klan’s favorite legal innovation against families who are poor and disproportionately immigrant. The more things change . . .

The Blaine case against the tax credit is pretty weak, too: The program is designed, rather baroquely, to forefend just such a challenge: The money goes from business donors, which are compensated with a tax credit, to a nonprofit that in effect writes a two-party check to each family and the school of its choice, which must be endorsed by the beneficiary. The money never hits the treasury, so there is no state expenditure.

In fact, there is the opposite of a state expenditure. The scholarships are only $5,272, far less than Florida taxpayers spend each year on a child in one of their (sort of terrible, if we’re going to look at the data) government monopoly schools. The tax-credit program on net saves Florida taxpayers tens of millions of dollars.

On the same day the Florida lawsuit was filed, New Hampshire’s supreme court upheld that state’s similar school-choice program.

This isn’t about religion; it’s about protecting the narrow financial interests of a monopolistic public-sector cartel that produces a whole lot of six-figure salaries, $28-an-hour baby-sitters, and $90,000-a-year shop teachers. You think it’s not about the money? Consider that Florida uses a similar system to provide pre-kindergarten education to 140,000 low-income children, about 40 percent of whom are in religiously affiliated schools. Florida offers college scholarships, too, which students are free to use at religious institutions. (Three of Florida’s historically black colleges are Christian schools — shall we revoke their students’ federal aid?) Nobody is filing any lawsuits about college scholarships — the union goons are not looking out for anything but their own selfish interests.

Which would be more or less fine, if they didn’t stink quite so much when it comes to educating children.

We know they do a terrible job. The data show that they do a terrible job. And, most significant, they know that they do a terrible job, too: That’s why they do not want families to be allowed to choose. Given a choice, 70,000 low-income Florida families are saying “No” to the monopoly. If more families are allowed to choose, more are going to tell the cartel to pound sand, thus putting its members at a higher risk of being forced to work for market wages.

And let’s remember who these families and children are: 100 percent low-income, 75 percent minority, 60 percent single-parent families, heavily immigrant black and brown families earning on average about half of the median income.

Underpaid, you might say.

Bloodstained Hypocrisy of Hollywood's Violence Profiteers

By Michelle Malkin
Friday, August 29, 2014

Did you miss Tinseltown's latest political correctness powwow? Preening celebrities showed their solidarity with Ferguson, Mo., at the MTV Video Music Awards show this week. Rapper Common led the convocation, preachifying about the positive impact of hip-hop music on society as a "powerful instrument of social change" and "truth."

Cameras showed drug-addled gangsta rapper Snoop Dogg bowing his head and flashing a peace sign during a "moment of silence" for Ferguson. MTV President Stephen Friedman aired public service announcements plying social justice messages. "It's a call to action to our audience that we have to confront our own bias head-on before we can truly create change," Friedman pontificated.

Spare me the shizzle and hypocri-dizzle.

While these Hollywood do-gooders gnash their Zoom!-brightened teeth over violence in the black community, they turn their Restylane-filled cheeks from the bullet-riddled violence glamorized by their own industry.

The night before the VMAs, a gunman barged into the 1Oak nightclub in West Hollywood and shot rap mogul Suge Knight six times. He survived.

It wasn't the first time Knight had been targeted for apparent revenge. And it wasn't the first time the VMA party scene had been rattled by violent gunfire. In 2005, Knight was shot at a pre-VMA party in Miami hosted by rapper Kanye West.

Knight, founder of the Death Row Records empire and possessor of a mile-long rap sheet, reportedly refuses to cooperate with L.A. police, who are investigating the roles of the infamous Bloods and Crips rival street gangs in the crime. The Bloods-affiliated Knight's reign of criminal terror has been well documented by law enforcement and rap aficionados. A climax: the still-unsolved shooting deaths of rappers Tupac Shakur and Biggie Smalls, which multiple insiders believe the record executive ordered.

Fellow thug rapper Chris Brown (who remains on probation for beating up former girlfriend/pop queen Rihanna) was at the West Hollywood party last weekend, reportedly throwing Bloods gang signs. Also on scene: gangsta rapper and Bloods-promoter The Game.

Fun fact: The last time "Game" was in the news, he had released album artwork depicting Jesus as a Bloods gang member -- complete with gold chains and the signature red bandana of the Compton Piru Bloods gang.

Not to be outdone, Crips-affiliated Snoop Dogg -- a marquee Death Row Records "artist" with Dr. Dre before their falling out with Knight -- boasts his own vicious criminal gang history ranging from felony drug possession to assault and multiple deadly weapons possessions charges. And that's not including a deadlocked jury outcome on voluntary manslaughter charges after rival Crips gang member Phillip Woldermarian was gunned down by shots alleged to have come from a car Snoop and two fellow gang members were in at the time.

Corporate Hollywood liberals have made billions of dollars off of hardcore, gang-promoting, gun-toting, cop-bashing, misogynist rap. The corrosive effects on the black community are incalculable. Grandstanding about Ferguson is a convenient distraction from the rank hypocrisy of violence profiteers.

As you might expect, MTV didn't call for a "moment of silence" about the latest Suge Knight shooting. There was no need for one. When it comes to holding themselves accountable for fostering black-on-black violence, Hollywood's gangstas have adopted a systematic code of silence.