Author Archives: Doug Mataconis

Lawsuits Await As ObamaCare Passes

Shortly, ObamaCare will be the law of the land, then the next round in the battle begins:

WASHINGTON — The battle over health care is poised to move swiftly from Congress back to the country as Democrats, Republicans and a battery of interest groups race to define the legislation and dig in for long-term political and legal fights.

President Obama plans to open a new campaign this week to persuade skeptical Americans that the bill holds immediate benefits for them and addresses the nation’s shaky fiscal condition. Republicans said they would seek to repeal the measure, challenge its constitutionality and coordinate efforts in statehouses to block its implementation.

The politics of health care are fragile — and far from certain — in the eight-month midterm campaign that will determine which party will control Congress next year. But both sides steeled for a fight to extend well beyond November, involving state legislative battles, court challenges and, ultimately, the next presidential race.

Even before the final vote, Republicans began relentlessly assailing lawmakers who supported the legislation, suggesting Democrats are spendthrift and proponents of big government. Democrats said they would seek to capitalize on the momentum from their success and strive to move beyond the political arguments in hopes of demystifying the complicated legislation.

“We ought to focus on not the political stakes, but the stakes for the country,” David Plouffe, an adviser to Mr. Obama, said on ABC’s “This Week.” “We’re going to go out there and not just talk about what we’re for, but what the Republicans are voting against.”

The next chapter in the health care fight will play out not only in the midterm elections, but also in the courts.

Already three state Attorneys General have announced their intention to file suit as soon as the bill becomes a law.

Virginia:

RICHMOND, Va. (AP) – Less than eight hours after Congress passed sweeping healthcare reforms, Virginia’s Attorney General became the first to announce a legal challenge against it.

Republican Ken Cuccinelli said early Monday that he will file a court challenge against what he and other conservatives decry as an unconstitutional overreach of federal authority.

Cuccinelli said he would file the lawsuit as soon as President Barack Obama signs the bill passed Sunday night into law.

South Carolina:

COLUMBIA, S.C. (AP) — South Carolina Attorney General Henry McMaster is again promising a legal challenge of the health care reform measure passed by the U.S. House.

McMaster issued a statement late Sunday calling the health care legislation “clearly unconstitutional.”

(…)

He says he took part in a conference call Sunday night and expects attorneys general in nine other states to join the challenge.”

And, Florida:

ORLANDO, FL — Moments after Congress voted to approve President Obama’s health care legislation, Florida’s Attorney General announced he will file a lawsuit to declare the bill unconstitutional.

Bill McCollum will join Attorneys General from South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota and South Dakota to file a lawsuit against the federal government.

“The health care reform legislation passed by the U. S. House of Representatives this evening clearly violates the U.S. Constitution and infringes on each state’s sovereignty,” McCollum said in a statement distributed late Sunday night.

“If the President signs this bill into law, we will file a lawsuit to protect the rights and the interests of American citizens.”

More to come, I’m sure.

ObamaCare, The Constitution, And The Next Round In The Health Care Wars

The Constitutionality of ObamaCare is apparently a subject that neither Nancy Pelosi, nor any other Member of Congress has given any consideration to. In today’s Washington Post, however, Law Professor Randy Barnett takes a look at the probable Constitutional challenges to the health care bill:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

As I’ve written before, this may be the one area of the health care bill that it most vulnerable to a Constitutional challenge. Neither the Commerce Clause, nor any other provision of Article I, Section 8 of the Constitution would seem to be capable of being read in a reasonable manner so as to grant to Congress the power to force every American man, woman, and child to purchase a produce whether they wanted to or not.

Will the Court’s see it the same way ? That remains to be seen, but there have been signs in recent years that the Supreme Court wants to step back from the overly broad interpretation of the Commerce Clause that we’ve become familiar with:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

So, this is as not nearly as much of a long-shot argument as it might have been twenty or thirty years ago.

Barnett concludes:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

In other worth, even if ObamaCare passes today, the political firestorm isn’t over, and the legal firestorm is just getting started.

Is “Deem And Pass” Constitutional ? Neither The Question Nor The Answer Are As Simple As You Think

As the debate over health care reform approaches it’s final hours in the House of Representatives, there’s been much discussion over the past week over a rather obscure topic — the internal operating procedures of the House of Representatives, and specifically the apparent intention of House Democrats to use something that has been called “deem and pass” to get the Senate Bill approved and a Reconciliation Bill to the Senate.

The first question, of course, is exactly what “deem and pass” actually is, and George Washington University Professor Sara Binder gives perhaps the best explanation I’ve seen to date:

So how is the process likely to unfold? We can’t be entirely sure of all the details yet, but it will likely start on Saturday when the Rules Committee meets, most likely in its usual room in the Capitol—a tight squeeze with just a handful of spectator seats. At that point, the committee will unveil its recommended special rule and debate it. We don’t know yet for sure what the rule will say. There will most likely be that self-executing provision that “deems” the Senate-passed health care bill as passed by the House upon adoption of the rule or upon House passage of the reconciliation bill.

(…)

The Rules Committee has now written up a special procedure for its debate and the House has approved it. If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would—at that point—be ready for presidential signature. Health care reform, in other words, would be ready to become law. But it’s more likely the rule will stipulate that the Senate bill becomes law only after the House approves the reconciliation package. If so, reform’s fate will still not be settled. It will depend on whether the reconciliation bill passes.

And so the House will proceed to debate the reconciliation package, in whatever manner and for whatever duration the rule stipulates. Most likely, no amendments will be allowed. Once debate is exhausted, the House will move the previous question motion again, this time in preparation for final passage of the bill. Again, it will take 216 to agree to the previous question motion, setting up the climactic vote

(…)

[I]f all has gone according to plan for the Democrats, the chamber will come to its up-or-down vote on the reconciliation bill. If 216 members vote yes, the reconciliation bill will go to the Senate. And the main Senate bill? That one will enter the “enrollment” process to prepare it for its journey up Pennsylvania Ave to the White House.

Doesn’t exactly sound like Schoolhouse Rock does it ? That, I think is one of the reasons that we’ve seen such a strong reaction to this issue from many pundits and members of the public. Whether it’s right or wrong, it doesn’t seem right. Politically, it’s a dumb move that I think Democrats will come to regret. But what about the Constitution ? Is “deem and pass” Constitutional ?

Former Federal Judge Michael McConnell was among the first to state publicly that the answer is a clear no:

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

It seems like a fairly straightforward, textually sound argument, and many on the right have essentially adopted McConnell’s argument as their own. Both Virginia Attorney General Ken Cuccinelli and talk show host Mark Levin have said that they intend to file lawsuits if the House utilizes the “deem and pass” strategy.

It turns out, though, that the answer isn’t quite as simple as McConnell makes it out to be.

In 2005, the Circuit Court of Appeals heard a case titled Public Citizen v. US District Court for DC. In that case, Public Citizen, joined by Members of Congress including Nancy Pelosi and current Rules Committee Chairperson Louise Slaughter (of the “Slaughter Solution) were challenging a “deeming” procedure used by the Republican-controlled House.

Here’s what the Court said:

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, assuming that Marshall Field applies, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

KipEsquire has made some good points suggesting that Marshall Field might not apply in this case, but it doesn’t end there.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:

Each House may determine the Rules of its Proceedings,

In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:

[T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

How that would not be in compliance with the Presentment Clause is beyond me.

Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.

Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.

Note: This post was developed from a series of posts I published on my personal blog earlier this week.

Update 2:39pm EDT: The Washington Post is reporting that the House leadership has decided not to use a “deem and pass” rule for tomorrow’s vote. To me, that means that they are confident they have the votes.

The CBO Health Care Numbers Are Phony And Meaningless

While the Democrats in Congress will try to spin it otherwise, the truth about the CBO numbers released today can be found on the first page of CBO Director Douglas Elmendorf’s letter to Speaker Pelosi:

Although CBO completed a preliminary review of legislative language prior to its release, the agency has not thoroughly examined the reconciliation proposal to verify its consistency with the previous draft. This estimate is therefore preliminary, pending a review of the language of the reconciliation proposal, as well as further review and refinement of the budgetary projections.

In other words, this isn’t a final scoring of the the health care bill, and it isn’t complete because Congress hasn’t told the CBO what’s in the reconciliation package that they’ve supposedly been working on for a week now.

One Capitol Hill reporter stated on Twitter earlier that a final CBO scoring won’t be released until tomorrow, or Saturday. If that’s the case, then the 72 hour clock has NOT started running yet and we won’t see a vote on this until early next week.

Don’t let them fool you.

Liz Cheney, Bill Kristol, And The Shameful NeoCon Attack On America’s Legal System

The latest controversy of the day among many on the right, led principally by Liz Cheney and William Kristol, involves attacking Justice Department lawyers who represented alleged members of al Qaeda or the Taliban detained at Guantanmo Bay.

As Kristol puts it:

[L]awyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.

Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).

Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.

Not everyone on the right agrees with Kristol and Cheney on this, of course. Two former Bush Administration DOJ officials, John Bellinger III and Peter D. Keisler, have come to the defense of what Cheney, Kristol, and their acolytes are calling “The Al Qaeda Seven”. and one very conservative blogger who has no love for the Obama Administration puts it this way:

The lawyers who represent criminals do not represent them because they support crime, they represent them because they support our system of justice. So too those who represented alleged members of al-Qaeda do not support their beliefs but our beliefs in the right to a fair trial and the right to a lawyer. Our system of justice depends on lawyers vigorously advocating for the rights of criminals to receive a fair trial. I couldn’t do it–I’m more of a “try ‘em and fry ‘em” kind of lawyer–but somebody has to do it. And to seek to disqualify lawyers for simply doing their jobs because we don’t like who they represented is plain stupid. Oppose the Obama Administration and Attorney General Holder when they are wrong, not merely for the sake of opposing them.

As Walter Dellinger points out in today’s Washington Post, this attack on the legal profession is nothing short of shameful:

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

(…)

That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Moreover, as one blogger points out, these lawyers were doing what every lawyer does:

[L]awyers represent clients. That’s what they do. It’s a mistake to assume that because Lawyer A represents Client B, he approves of whatever it is that Client B was accused of. He may genuinely believe that Client B is innocent. Even if he doesn’t, he almost certainly believes that Client B is entitled to a fair trial to establish his guilt or innocence. And he absolutely believes that he wants to collect his paycheck, in return for which he must do what he does, which is represent clients (by either personal hiring or government appointment to the job).

Just ask a guy named John Adams:

“I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions:That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.

“Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read…It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour….

“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

Yes, that’s right. One of America’s greatest Founders, a member of the Continental Congress, and Second President of the United States defended the British soldiers accused of killing five people in the Boston Massacre. He did it because he believed that everyone deserved a defense.

It’s a fact of life that lawyers who practice criminal law, and sometimes even us civil attorneys, will eventually represent disreputable clients. Some do it because they are doing their job, some do it because they believe everyone deserves a defense, and they deserve our thanks, not our condemnation.

O/P: Below The Beltway

Ron Paul Wins CPAC 2012 GOP Straw Poll

It doesn’t necessarily mean much of anything, but I’ve got to admit that this libertarian was quite pleased to hear that Ron Paul won the straw poll at this year’s CPAC gathering in Washington, D.C.:

Ron Paul won the CPAC straw poll today, ending Mitt Romney’s streak and serving notice that about a third of the attendees at the gathering — and a good chunk of those driving the conservative revival — stand pretty well outside the Republican Party mainstream.

Still, Romney scored second at 22%, the only other candidate in double digits, and the results are a reminder of his pre-eminence as the establishment GOP and conservative frontrunner.

What there wasn’t: A groundswell for Palin, who didn’t show. She came in third at 7%, in a pack with Tim Pawlenty, Mike Pence, Newt Gingrich, and Mike Huckabee, in that order.

Full results:

Screen shot 2010-02-20 at 5.48.10 PM

If nothing else this does seem to show that libertarians aren’t sitting back and letting the conservatives run things.

Supreme Court Strikes A Blow For Free Speech

By driving a stake through the heart of McCain-Feingold:

WASHINGTON — The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By a 5-4 vote, the court overturned a 20-year-old ruling that said companies can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

(…)

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

As I’ve said many times before, the only campaign finance regulation that we need is full and complete disclosure.

Every candidate for Federal office should be required to disclose all contributions and disbursements and a regular basis (possibly even more frequently than the quarterly reports that are now the law), and that information should be easily available to the public so that people can know where a candidate’s money comes from and where it goes. After all, isn’t that what the First Amendment is really all about — let the information out and let the public decide what to think about it ?

Here’s the full opinion and dissent:

Citizens Opinion

National Debt Tops $ 12,000,000,000,000

Just 247 days after topping $ 11 trillion and 414 days since passing the $ 10 trillion mark, America’s national debt is now above the eye-popping level of twelve trillion dollars:

It’s another record-high for the U.S. National Debt which today topped the $12-trillion mark. Divided evenly among the U.S. population, it amounts to $38,974.34 for every man, woman and child.

Technically, the debt hit the new high yesterday, but it was posted on the Treasury Department website just after 3:00 p.m. ET today. The exact calculation of the debt is a 16-digit tongue-twister and red-ink tsunami: $12,031,299,186,290.07

This latest milestone in the ever-rising journey of the National Debt comes less than eight months after it hit $11 trillion for the first time. The latest high-point is not unexpected, considering the federal deficit for the just-ended 2009 fiscal year hit an all-time high at $1.42-trillion – more than triple the previous year’s record high.

Much of the increase in the deficit and debt is attributed to government spending outpacing revenue – both exacerbated by the recession and the government response to it – including hundreds of billions in bailouts and stimulus spending and tax cuts along with decreased tax revenues due to rising unemployment.

In recent days, President Obama has spoken of the need to bring the rising deficit and debt under control.

“I intend to take serious steps to reduce America’s long-term deficit – because debt-driven growth cannot fuel America’s long-term prosperity,” he said in remarks prepared for delivery to the leader’s meeting last Sunday at the Asia Pacific Economic Cooperation summit.

The National Debt has increased about $1.6 trillion on Mr. Obama’s watch, though less than $4.9 trillion run up during the presidency of George W. Bush.

Of course, Obama has only been in office ten months, not eight years.

Since Barack Obama took the Oath of Office, the national debt has increased from $ 10,626,877,048,913.08 to $ 12,031,299,186,290.07. That’s an increase of $ 1,404,422,137,376.99 over 302 days, or $ 4,650,404,428.40 per day, $ 193,766,851.18 per hour, $ 3,229,447.52 per minute, and $ 53,824.13 per second.

Anyone want to bet how long it will take to get to $ 13 trillion ?

My guess is August 15, 2010.

Ayn Rand: The Fountainhead Of The Modern Libertarian Movement

atlas_02

There are few figures in the American libertarian movement that gave rise to as much controversy or passion as Ayn Rand. Love her or hate her, it’s hard to find a libertarian who doesn’t have an opinion about the author of The Fountainhead and Atlas Shrugged. For many of us, she was the one who lit the spark that sent us down the road toward becoming a libertarian. Even after her death, some still consider themselves hard-core Objectivists in the model of those who gravitated around the Nathanial Branden Institute in the 1960s. For most libertarians, though, while Rand is arguably the most influential moral philosopher, she is also someone who’s flaws, both personal and philosophical have been acknowledged, debated, and argued about for decades.

There’s always been a missing piece of the puzzle, though, and that was that nobody had really undertaken a full-scale intellectual biography of someone who, even today, can sell 200,000 copies a year of her 1,000+ page magnum opus. There were personal biographies by Barbara Branden and Nathaniel Branden, but those both seemed to concentrate on the more lurid details of Rand’s personal life and the circumstances behind the 1968 Objectivist Purge. The heirs of Rand’s estate, meanwhile, have guarded her papers closely in an obvious effort to protect her legacy and reputation. Someone wanting to learn more about Rand’s life, the development of her ideas, and her impact on American politics, had almost nowhere to go that wasn’t totally biased in one direction or the other.

That’s why Jennifer Burns’ Goddess of the Market: Ayn Rand and the American Right is so welcome.

Instead of dwelling on the lurid aspects of Rand’s affair with Nathaniel Branden, and without taking sides regarding the many controversies that followed Rand in years after Atlas Shrugged was published, Burns provides a thorough, well-written and well-researched survey of how Ayn Rand went from Alisa Rosenbaum of St. Petersburg, Russia, born just as Czarist Russia was beginning it’s decent into chaos, to Ayn Rand, the woman about whom more than one person has said “she changed my life.”

For people versed in the history of libertarian ideas, the most interest parts of the book will probably be Burns’s documentation of Rand’s interaction with the heavyweights of both the Pre World War II Right and the conservative/libertarian movement that began to take shape after the war ended. She corresponded with Albert Jay Nock and H.L. Mencken and, most interestingly, developed a very close personal and intellectual relationship with Isabel Patterson, best known as the author of The God of the Machine. For years, especially during the time that Rand was writing The Fountainhead, Rand and Paterson exchanged ideas and debated philosophy, and it’s clear that they both contributed to the others ideas.

The Rand-Paterson relationship, though, also foreshadowed something that would happen all too frequently later in Rand’s career, the purge. Paterson was among the first libertarian-oriented writers to experience Rand’s wrath for the perception that she was not sufficiently orthodox. Over time, that would continue to the point where, at it’s height, Objectivism displayed a level of orthodoxy and denunciation of perceived heresy that rivaled the religions that it rejected. It was, in the end, the reason why the movement’s downfalls was largely inevitable.

Burns also goes into great detail discussing the process and the ordeal that Rand went through while writing both of her great novels. After reading that part, one marvels at the fact that she even survived.

In the final chapter, Burns shows that, even though Rand herself had flaws that led to the demise of Objectivism as a formal movement, her ideas have a staying power that has permeated throughout the conservative and libertarian movements in the United States. There is hardly a libertarian in the United States who has not read at least one of Rand’s books and, it’s clear that her ideas have taken hold in a way that she probably never expected and definitely would not have approved of. That, however, is the power of ideas, the creator can’t control what people do with them once they’re out there.

Burns does a wonderful job of filling in the missing pieces about Rand’s life and her place in the wider context of the political and social history of Post World War II America. Whether you love or hate Ayn Rand – and I don’t think you can have no opinion about her once exposed to her idea – this is a truly fascinating book.

Ludwig Von Mises Finally Getting Some Of The Respect He Deserves

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When Ludwig von Mises first arrived in the United States after escaping from Nazi Europe, and pretty much up until the present day, he was essentially ignored by the mainstream economics community in the United States. It was only through the assistance of American businessmen that he was able to get a job teaching at New York University, and, even then, the work he did had nothing to do with official university activities because he was, effectively, shunned for his uncompromising defense of the free-market.

Earlier this week in The Wall Street Journal, though, Mises is given credit for being one of the few economists in the 1920s to foresee the impending Great Depression:

Mises’s ideas on business cycles were spelled out in his 1912 tome “Theorie des Geldes und der Umlaufsmittel” (“The Theory of Money and Credit”). Not surprisingly few people noticed, as it was published only in German and wasn’t exactly a beach read at that.

Taking his cue from David Hume and David Ricardo, Mises explained how the banking system was endowed with the singular ability to expand credit and with it the money supply, and how this was magnified by government intervention. Left alone, interest rates would adjust such that only the amount of credit would be used as is voluntarily supplied and demanded. But when credit is force-fed beyond that (call it a credit gavage), grotesque things start to happen.

Government-imposed expansion of bank credit distorts our “time preferences,” or our desire for saving versus consumption. Government-imposed interest rates artificially below rates demanded by savers leads to increased borrowing and capital investment beyond what savers will provide. This causes temporarily higher employment, wages and consumption.

Ordinarily, any random spikes in credit would be quickly absorbed by the system—the pricing errors corrected, the half-baked investments liquidated, like a supple tree yielding to the wind and then returning. But when the government holds rates artificially low in order to feed ever higher capital investment in otherwise unsound, unsustainable businesses, it creates the conditions for a crash. Everyone looks smart for a while, but eventually the whole monstrosity collapses under its own weight through a credit contraction or, worse, a banking collapse.

The system is dramatically susceptible to errors, both on the policy side and on the entrepreneurial side. Government expansion of credit takes a system otherwise capable of adjustment and resilience and transforms it into one with tremendous cyclical volatility.

(…)

We all know what happened next. Pretty much right out of Mises’s script, overleveraged banks (including Kreditanstalt) collapsed, businesses collapsed, employment collapsed. The brittle tree snapped. Following Mises’s logic, was this a failure of capitalism, or a failure of hubris?

Mises’s solution follows logically from his warnings. You can’t fix what’s broken by breaking it yet again. Stop the credit gavage. Stop inflating. Don’t encourage consumption, but rather encourage saving and the repayment of debt. Let all the lame businesses fail—no bailouts. (You see where I’m going with this.) The distortions must be removed or else the precipice from which the system will inevitably fall will simply grow higher and higher.

That was Mises’ argument in The Theory Of Money And Credit, but he did so much more than that. In Socialism, first published in 1921, Mises laid out in detail the reasons why the centrally planned economy of nations like the USSR could never produce a rational economy and were doomed to failure. He was, of course, proven right in that regard as we learned only twenty years ago. Mises’ magnum opus is Human Action: A Treatise on Economics and while it’s not easy reading it is well worth consuming for even the amateur student of economics.

Here’s hoping people will start taking Mises’ lessons to heart before we make the same mistakes all over again.

Thoughts On Veterans Day

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As we mark Veterans Day here in the United States, it is worth remembering that, for the rest of the Western world, today marks the end of what may very well be the most pointless war in human history

The war in which millions of educated and working class men sacrificed their lives to fight over the remnants of a Europe that was still ruled by Hohenzollern’s, Hapsburg’s and Romanov’s —Middle Age Europe’s inbred contribution to insanity.

And what were they fighting over ? The same stupid battles that Europeans were fighting 100 years previously when Napoleon raged across the Russian frontier. Only this time, they were doing it with tanks, planes, and mustard gas.

It was massacre writ large and insanity on display for four long years — and it all started when some guy got shot in Sarajevo.

And yet, somehow, the boys of America ended up in the middle of this mess that the Royalists and Europeans has created. Rationally, there was no reason we should’ve been there and yet we were led by a man convinced that he could remake the world in America’s democratic image.

Sound familiar ?

That didn’t work out so well back then, as people unlucky enough to live in Europe in the 1930s and 40s can attest. Not to mention the men who the United States sent back to Europe in 1941.

So as we remember Veterans today, and thank them for their service, perhaps it’s time to think about how we can stop creating so many gardens of stone in so many corners of the world in the name of misplaced idealism.

Pfizer Abandons Site Condemned In Infamous Kelo v. New London Case

In the annals of Supreme Court history, there are perhaps only a handful of cases that go down in history as more egregious than what happened in Suzette Kelo v. City of New London. In that case, the Supreme Court approved an eminent domain taking by the City of New London, Connecticut that involved taking the land of the principal plaintiff, and many others, and using it for a commercial development that would be used by Pfizer Corp. for a new corporate business center. It was a decision that was roundly and deservedly condemned at the time and which led to some efforts at eminent domain reform at the state level, many of which were successful.

But, in the end, Suzette Kelo still lost her property, and now, to add insult to injury, Pfizer has abandoned the project that was the subject of the eminent domain proceeding:

The private homes New London, Conn., took through eminent domain from Suzette Kelo and others, are torn down now, but Pfizer has just announced that it closing up shop at the research facility that led to the condemnation.

Leading drugmakers Pfizer and Wyeth have merged, and as a result, are trimming some jobs. That includes axing the 1,400 jobs at their sparkling new research & development facility in New London, and moving some across the river to Groton.

To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost, as five justices said this redvelopment met the constitutional hurdle of “public use.”

The private homes that New London, Conn., took away from Suzette Kelo and her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of eminent domain.

But now Pfizer, the drug company whose neighboring research facility had been the original cause of the homes’ seizure, has just announced that it is closing up shop in New London.

Scott Bullock, Kelo’s co-counsel in the case, told me: “This shows the folly of these redvelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”

One wonders if Suzette Kelo is paraphrasing former Labor Secretary Ray Donovan and wondering, where do I go to get my house back ?

Twenty Years Ago Today

Berlin-Wall

The people of Germany are celebrating the 20th Anniversary of the end of the division of their nation:

With prayers, music and pomp, Germany on Monday remembered the 20th anniversary of the day the Berlin Wall fell, sending East Germans flooding west and setting in motion events that soon led to the country’s reunification.

Chancellor Angela Merkel — reunited Germany’s first leader to grow up in the communist east — started the day with President Horst Koehler and other leaders at a prayer service at a former East Berlin church that was a rallying point for opposition activists in 1989.

“We remember the tears of joy, the faces of delight, the liberation,” Lutheran Bishop Wolfgang Huber told the congregation at the Gethsemane Church.

East Germany’s fortified border crumbled on the evening of Nov. 9, 1989 after 28 years holding in the country’s citizens — a pivotal moment in the collapse of communism in Europe that followed a confused announcement by a senior official.

We aren’t that far away from the day when the Berlin Wall will have been down longer than it was up, and that’s a day to look forward to.

This video does a great story of telling the story of how this happened:

And this ABC retrospective looks at how the fall of the Wall ignited a fire across Eastern Europe:

And, while we’re at it, let’s not forget the role this guy played in the events that brought about the collapse of what really was an evil empire:

Will The Supreme Court Finally Start Reining In The Necessary And Proper Clause ?

One of the most pernicious clauses of the Constitution that has, through creative interpretation led to an expansion of the power of the Federal Government far beyond where it was intended is the Necessary and Proper Clause, which sits at the end of Article I, Section 8 and states as follows:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

When James Madison wrote about the clause in Federalist No. 44, it was clear that the Founders viewed the clause as merely granting Congress the authority it needed to carry out the powers set forth in remainder of Section 8:

The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.\

(…)

If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.

The reality of just how flexible the clause was, though, became apparent only thirty-one years later when the Supreme Court handed down it’s decision in McCullouch v. Maryland:

McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable, the U.S. Bank was the only out-of-state bank then existing in Maryland, and the law is generally recognized as having specifically targeted the U.S. Bank. The Court invoked the Necessary and Proper Clause in the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution’s list of express powers as long as those laws are in useful furtherance of the express powers.

This fundamental case established the following two principles:

  1. The Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government.
  2. State action may not impede valid constitutional exercises of power by the Federal government.

The opinion was written by Chief Justice John Marshall.

It was the first example of a Constitutional clause being used to read into the Constitution increased powers for Congress beyond those set forth in the text of the document, and it wouldn’t be the last.

Now, it appears that the Supreme Court may have the opportunity to rein in the damage the McCulloch did:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

Here’ s hoping that the Court takes this one, admittedly small, step toward reining in an out-of-control Federal Government.

Good News On Health Care Reform: They Don’t Have The Votes Yet

This is a good sign:

WASHINGTON – A House leader says Democrats haven’t yet lined up enough votes to pass their health care overhaul bill.

Majority Leader Steny Hoyer of Maryland says the vote that House Democrats had scheduled for Saturday could slip to Sunday or early next week.

Hoyer acknowledged to reporters Friday that Democratic leaders don’t yet have the 218 votes needed to pass President Barack Obama’s historic health overhaul initiative.

Let’s make sure they never get those votes.

The Enduring Legacy Of Ayn Rand

Part One in Reason.tv’s new series about Ayn Rand:

Few authors have ever achieved the popularity that the novelist and essayist Ayn Rand (1905-1982) did. With the publication of The Fountainhead in 1943 and Atlas Shrugged in 1958, Rand became a full-blown cultural phenomenon, selling millions of books and inspiring countless readers—ranging from former Federal Reserve Chairman Alan Greenspan to Playboy founder Hugh Hefner to actress Angelina Jolie—with her moral defense of capitalism. A refugee from Soviet Russia, Rand argued that capitalism was the best way of organizing society not simply because it was more efficient than communism but because it allowed the individual to fill his or her potential. A self-declared “radical for capitalism,” Rand emphatically rejected collectivism of all stripes and embraced “man as a heroic being, with his own happiness as the moral purpose of his life, with productive achievement as his noblest activity, and reason as his only absolute.”

Decades after her death, Rand’s work is hotter than ever. In an age of massive government intervention into every aspect of the economy and personal lives, sales of her books are way up and a movie version of Atlas Shrugged is in the works. References to Rand are everywhere from Mad Men to The Colbert Report to The Simpsons and there’s even a new critical appreciation, as evidenced by two new biographies, Ayn Rand And The World She Made and Goddess of The Right.

The World Of Ayn Rand

On Wednesday evening, I was fortunate to attend a forum at The Cato Institute featuring the authors of two new biographies of Ayn Rand — Jennifer Burns, author of Goddess of the Market: Ayn Rand and the American Right and Anne C. Heller, author of Ayn Rand and the World She Made.

It was a very interesting presentation and I’m looking forward to reading both books in the near future with reviews forthcoming.

Until then, here’s a video of the full presentation so you can watch for yourself:

The Cult Of The Imperial Presidency

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Over the past 30 years, America has seen Presidential scandals ranging from Watergate to Iran-Contra to Travel-gate, Whitewater, the Lewinsky scandal, and the Valerie Plame affair. We’ve learned the truth about some of the truly nefarious actions undertaken by some of most beloved Presidents of the 20th Century, including the iconic FDR, JFK, and LBJ. And, yet, despite all of that, Americans still have a reverential view of the President of the United States that borders on the way Englishmen feel about the Queen or Catholic’s feel about the Pope.

How did that happen and what does it mean for America ?

Gene Healy does an excellent job of answering those question in The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, making it a book that anyone concerned with the direction of the American Republic should read.

As Healy points out, the Presidency that we know today bears almost no resemblance to the institution that the Founding Fathers created when they drafted Article II of the Constitution. In fact, to them, the President’s main job could be summed up in ten words set forth in Section 3 of Article II:

he shall take Care that the Laws be faithfully executed,

The President’s other powers consisted of reporting the state of the union to Congress (a far less formal occasion than what we’re used to every January), receiving Ambassadors, and acting as Commander in Chief should Congress declare war. That’s it.

For roughly the first 100 years of the Republic, Healy notes, President’s kept to the limited role that the Constitution gave them. There were exceptions, of course; most notably Abraham Lincoln during the Civil War but also such Presidents as James Polk who clearly manipulated the United States into an unnecessary war with Mexico simply to satisfy his ambitions for territorial expansion. For the most part, though, America’s 19th Century Presidents held to the limited role that is set forth in Article II, which is probably why they aren’t remembered very well by history.

As Healy notes, it wasn’t until the early 20th Century and the dawn of the Progressive Era that the idea of the President as something beyond what the Constitution said he was took forth. Healy documents quite nicely the ways in which Presidents from Theodore Roosevelt to Woodrow Wilson to FDR went far beyond anything resembling Constitutional boundaries to achieve their goals, and how they were aided and abetted in that effort by a compliant Supreme Court and a Congress that lacked the courage to stand up for it’s own Constitutional prerogatives. Then with the Cold War and the rise of National Security State, the powers of the Presidency became even more enhanced.

One of the best parts of the book, though, is when Healy attacks head-on the “unitary Executive” theory of Presidential power that was advanced by former DOJ official John Yoo in the wake of the September 11th attacks and the War on Terror. As Healy shows, there is no support for Yoo’s argument that the Founders intended for the President to have powers akin to, or even greater than, those of the British Monarch that they had just spent seven years fighting a war to liberate themselves from. The dangers of Yoo’s theories to American liberty and the separation of powers cannot be understated.

If the book has one weakness, it’s in the final chapter where Healy addresses only in passing reforms that could be implemented to restrain the Cult Of the Presidency. I don’t blame Healy for only giving this part of the book passing attention, though, because what this book really shows us is that no matter of written law can stop power from being aggregated in a single person if that’s what the people want and, to a large extent, we’ve gotten the Presidency we deserve.

Healy’s closing paragraph bears reproducing:

“Perhaps, with wisdom born of experience, we can come once again to value a government that promises less, but delivers far more of what it promises. Perhaps we can learn to look elsewhere for heroes. But if we must look to the Presidency for heroism, we ought to learn once again to appreciate a quieter sort of valor. True political heroism rarely pounds its chest or pounds the pulpit, preaching rainbows and uplift, and promising to redeem the world through military force. A truly heroic president is one who appreciates the virtues of restraint — who is bold enough to act when action is necessary yet wise enough, humble enough to refuse powers he ought not have. That is the sort of presidency we need, now more than ever.

And we won’t get that kind of presidency until we demand it.”

And, if we don’t demand it we will find ourselves living in a country where the only difference between President and King is merely the title.

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