Category Archives: Separation Of Powers

Recent Firings Of US Attorneys Were Political

And oddly enough, it appears to largely be Republicans firing Republicans for investigating fellow Republicans…

6 of 7 Dismissed U.S. Attorneys Had Positive Job Evaluations (emphasis added)

All but one of the U.S. attorneys recently fired by the Justice Department had positive job reviews before they were dismissed, but many ran into political trouble with Washington over issues ranging from immigration to the death penalty, according to prosecutors, congressional aides and others familiar with the cases.

Two months after the firings first began to make waves on Capitol Hill, it has also become clear that most of the prosecutors were overseeing significant public-corruption investigations at the time they were asked to leave. Four of the probes target Republican politicians or their supporters, prosecutors and other officials said.

Now, leave off the question of whether the firings had political motivation. At the very least, one must ask, when considering these sorts of actions, “what will the motivation for these actions look like?” In this case, it looks like these are prosecutors who were getting positive performance reviews, but they started looking under the wrong skirts, and got slapped down for it.

Normally, I might not get too upset over this. After all, when you’re in the world of politics, you have to expect that your friends will stab you in the back if it means another point in the polls for them. That’s how politicians operate, and that’s been the rule of the game ever since we transitioned from the divine right of kings to choosing rulers at the ballot box. But given our current administration’s desire to assume their own sort of divine rights, I see that this is merely a continuation of the same pattern we’ve seen the last six years. The money quote:

“There always have traditionally been tensions between main Justice and U.S. attorneys in the districts,” said Carl W. Tobias, a law professor at the University of Richmond. “But it does seem like there’s an effort to centralize authority in Washington more than there has been in the past and in prior administrations.”

If you wonder what the effects of centralized power will end up being, look no further than to a quote from Ronald Reagan: “Concentrated power has always been the enemy of liberty.” This only puts in sharper relief the extent to which the conservative movement has abandoned the cause of liberty in the last two decades.

Abraham Lincoln’s Response To George Bush

One Hundred Fifty-Five years before the invasion of Iraq, Abraham Lincoln had this to say on the subject of pre-emptive war and where the power to make war resides in American government:

“Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, — ‘I see no probability of the British invading us;’ but he will say to you, ‘Be silent: I see it, if you don’t.’

“The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood,” – Abraham Lincoln, in a letter to William H. Herndon, Feb. 15, 1848.

H/T: Andrew Sullivan

War Power And The Separation Of Powers

Eric Cantor, a Republican Congressman from Virginia and one of the party’s deputy whips in the House, had this to say on MSNBC’s Hardball about who has the authority to take the United States to war:

MATTHEWS: Let me ask you Congressman Cantor, very clearly, to clear up our discussion, if the U.S. Congress were to discuss tomorrow morning whether to declare war on Iran, would you vote yay?

CANTOR: This congress is not going to do that because it`s the commander in chief`s role, Chris, and Steve knows that as well. It`s not Congress that will ask for that. It is the commander in chief that will make that decision. Every president whether republican or Republican or Democrat since the War Powers Act was in place has interpreted it as being the commander in chief`s role to do that.


MATTHEWS: Congressman Israel, what`s the role of Congress in war and peace?

ISRAEL: Congress under the Constitution of the United States authorizes war. The War Powers Act requires Congress to vote on whether we should insert troops into hostile situations. The law is clear.

CANTOR: Absolutely not.

ISRAEL: Come on, Eric.

CANTOR: As a commander in chief the constitution gives…

MATTHEWS: Congressman Cantor, why did the president ask for approval of Congress before he went to Iraq?

CANTOR: I certainly think his counsel gave him guidance why he need to do that but the Constitution gives the commander in chief the right to send our troops into battle.

MATTHEWS: Maybe when it comes to war we don`t need a Congress according to that.

It sometimes seems as though supporters of the Imperial Presidency such as Congressman Cantor believe precisely that. The Constitution, however, has something else to say over in Article I, Section 8:

The Congress shall have power to…declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; provide and maintain a navy; make rules for the government and regulation of the land and naval forces…[and 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.

And then there’s the War Powers Act:

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

In other words Congressman Cantor, a unilateral decision by the President to attack Iran without either a declaration of war or specific authorization from Congress would only be justified in the event of a direct attack on the United States by Iran.

H/T: Hit & Run

US Lags In Family Laws; Leads In Freedom

The AP is reporting that the US is far behind other nations when it comes to family-leave legislation.

The United States lags far behind virtually all wealthy countries with regard to family-oriented workplace policies such as maternity leave, paid sick days and support for breast-feeding, a new study by Harvard and McGill University researchers says.

The new data comes as politicians and lobbyists wrangle over whether to scale back the existing federal law providing unpaid family leaves or to push new legislation allowing paid leaves.

The study, officially being issued Thursday, says workplace policies for families in the United States are weaker than those of all high-income countries and many middle- and low-income countries. Notably, it says the U.S. is one of only five countries out of 173 in the survey that does not guarantee some form of paid maternity leave; the others are Lesotho, Liberia, Swaziland and Papua New Guinea.

“More countries are providing the workplace protections that millions of Americans can only dream of,” said the study’s lead author, Jody Heymann, founder of the Harvard-based Project on Global Working Families and director of McGill’s Institute for Health and Social Policy.

I hate to bring up the “love it or leave it” idea, but there are 168 of 173 countries in this world that offer these “protections” that so many Americans are dreaming of, and yet it is America that has high economic growth (for a developed nation) and people who just dream of leaving their own shores and immigrating here. France’s bloated welfare state is in dire need of workers, so I’m sure those people who dream of workplace “protections” could take up residence there.

I’d like to say that American has chosen a completely different path, one of liberty and freedom of contract. One where we choose to allow workers and employers to decide what benefits are and are not necessary. But then I woke up. American laws haven’t always been completely pro-liberty. But we do have one feature here, which I would consider an advantage, but which makes it very easy to attack us on these grounds. We’re a federal system, where these decisions are left to individual states rather than mandated from above.

Fathers are granted paid paternity leave or paid parental leave in 65 countries, including 31 offering at least 14 weeks of paid leave. The U.S. guarantees fathers no such paid leaves.

At least 107 countries protect working women’s right to breast-feed; the breaks are paid in at least 73 of them. The U.S. does not have federal legislation guaranteeing the right to breast-feed at work.

At least 145 countries provide paid sick days, with 127 providing a week or more annually. The U.S. provides unpaid leave through the Family and Medical Leave Act, which does not cover all workers; there is no federal law providing for paid sick days.

At least 134 countries have laws setting the maximum length of the work week. The U.S. does not have a maximum work week length or a limit on mandatory overtime per week.

It’s easy to say that the US government doesn’t guarantee these things, and leave the impression in your readers’ minds that these things do not occur in the US. And in some states, that would be the case. In some states, there is very little legislation guaranteeing these sorts of “rights”. In others, though, a state will rank right up there with the “enlightened”.

That doesn’t change the fact that these laws are an infringement on freedom. But it’s easy to paint with a broad brush when you’re trying to compare a system which isn’t designed to be centrally planned, a system where we attempt to let competition between the various states show what system is better.

If the United States were operating anything like its federal, Constitutional design, these sorts of criticisms would hold no weight. People would see the true decisions being made at the state level, with the central government as merely a facilitator of cooperation and an arbitrater of disputes. Such a simple article, trying to talk about the United States as if we should be handling such decisions at the federal level, would be laughable.

But unfortunately, it’s not. The United States has long abandoned federalism, and our state governments have become the laughable, ignored entities. Now, when citizens want to enforce rules which infringe on other people’s rights, they head straight to the top, and expect the federal government to do it for them. Family-leave legislation is an infringement on the rights of workers and employers to set their own terms of contract. Because we haven’t completely allowed our federal government to infringe everyone’s freedom, we still have at least a few moderately free states left. It’s too bad that those states are dwindling, and even worse that the AP is actively lobbying for their demise.

The Militarization Of The Presidency

Garry Wills writes in today’s New York Times about the disturbing way in which the President’s role has Commander in Chief of the military has expanded as the Imperial Presidency has grown in power:

WE hear constantly now about “our commander in chief.” The word has become a synonym for “president.” It is said that we “elect a commander in chief.” It is asked whether this or that candidate is “worthy to be our commander in chief.”

But the president is not our commander in chief. He certainly is not mine. I am not in the Army.

As Wills points out, the fact that President is now referred to as “our Commander in Chief” reflects not just a debasement of the language, but the fact that the Presidency itself has taken on a much more militaristic aura than it had when the nation was founded:

When Abraham Lincoln took actions based on military considerations, he gave himself the proper title, “commander in chief of the Army and Navy of the United States.” That title is rarely — more like never — heard today. It is just “commander in chief,” or even “commander in chief of the United States.” This reflects the increasing militarization of our politics. The citizenry at large is now thought of as under military discipline. In wartime, it is true, people submit to the national leadership more than in peacetime. The executive branch takes actions in secret, unaccountable to the electorate, to hide its moves from the enemy and protect national secrets. Constitutional shortcuts are taken “for the duration.” But those impositions are removed when normal life returns.

But we have not seen normal life in 66 years. The wartime discipline imposed in 1941 has never been lifted, and “the duration” has become the norm. World War II melded into the cold war, with greater secrecy than ever — more classified information, tougher security clearances. And now the cold war has modulated into the war on terrorism.

It’s the idea of the permanent crisis, of course, that leads to the idea of the Imperial Presidency. If we are constantly under threat, whether its from the Communists, or the terrorists, or the drug runners, then, the argument goes, we’ve got to have one man with enough power to “protect” us. The fact that we’ve given that power to the branch of government most identified with the King we revolted from is both ironic and sad.

One consequence of the militarized Presidency is the suggestion that his actions are above criticism:

There has never been an executive branch more fetishistic about secrecy than the Bush-Cheney one. The secrecy has been used to throw a veil over detentions, “renditions,” suspension of the Geneva Conventions and of habeas corpus, torture and warrantless wiretaps. We hear again the refrain so common in the other wars — If you knew what we know, you would see how justified all our actions are.

But we can never know what they know. We do not have sufficient clearance.

When Adm. William Crowe, the former chairman of the Joint Chiefs of Staff, criticized the gulf war under the first President Bush, Secretary of State James Baker said that the admiral was not qualified to speak on the matter since he no longer had the clearance to read classified reports. If he is not qualified, then no ordinary citizen is. We must simply trust our lords and obey the commander in chief.

That’s not what the Constitution provides, and it’s not what the Founders intended.

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