Category Archives: Executive Branch

Making Decisions About Making Decisions

Robert Levy at Cato:

President Obama has ordered the Department of Health and Human Services to craft new rules that would facilitate hospital visitation rights for same-sex couples and smooth the way for gays and lesbians to make medical decisions on behalf of their partners.

On public policy grounds, the president’s directive is indeed welcome.  Two people who have joined in a long-term, committed, and mutually reinforcing relationship are entitled to equal treatment, regardless of sexual preference.

Regrettably, however, the president has exceeded his constitutional authority.  His order to his health secretary is deficient in two respects:

First, the government is invoking its power to spend for Medicare and Medicaid, then demanding that all hospitals receiving such funds adopt the new rules.  But there is no explicit power to spend in the Constitution.  Despite the Supreme Court’s contrary pronouncements, spending is permitted only as a “necessary and proper” means to execute other enumerated powers.  Quixotic though it might sound given post-New Deal jurisprudence, there is no enumerated power for the federal government to be engaged in providing health care to private citizens.

Second, the Constitution requires that “All legislative Powers … shall be vested in a Congress.”  That means laws conferring benefits or imposing obligations on private parties are supposed to be passed by the legislature, not the executive.  Yes, the Court has condoned delegations of legislative authority for a vast array of programs, but that merely reinforces the need to interpret the Constitution as it was originally understood.

Dan McLaughlin at Redstate:

That problem comes in two ways. One is that sometimes, pervasive federal regulation means that taking a position on a divisive social issue is unaviodable. I explained at some length previously why Obama’s healthcare bill rendered neutrality on abortion impossible; either you have an enforceable ban on the money going to fund abortions, with the collateral consequence of reducing insurance coverage for abortions generally (as part of the broader phenomenon of reducing the available pool of insurance coverage that’s not under the federal thumb) or you do not. The Bush Administration’s decision in 2001 to begin federal funding for embryonic stem cell research created the same problem: either Bush would fund research into stem cell lines from destroyed embryos, or not, or (as happened) he would have to draw some unsatisfactory middle-ground position between those two poles.

The second hazard is what’s at work here: when Uncle Sam isn’t content to make those unavoidable decisions and starts using the power of the federal purse to nationalize all sorts of things that have no business being matters of federal concern. Here, there’s no rational connection to any expenditure of federal expenditure; Obama just figures that because Medicare/Medicaid money is too much for the hospitals (or the states) to turn away, he has them over a barrel and can dictate terms on unrelated matters like visitation. This Administration has likewise used federal strings attached to impose controls on the states that restrict the ability of state governors to present a competing model of governance, as we’ve seen with the stimulus and healthcare bills.

And lest liberals complain that Republicans do this too: that’s part of the problem. You leave power sitting around, it’s gonna get used.

Sometimes, it’s nanny-state moderates, as with the campaign that established the legal precedent for this kind of mischief, Elizabeth Dole’s project as Reagan Administration Transportation Secretary to use federal highway funds as leverage to compel states to adopt a 55 mile per hour speed limit. Sometimes it’s neoliberalism, as with No Child Left Behind using federal education dollars to put more strings on local schools. And sometimes, it’s conservatives, as with the Solomon Amendment (which likewise passed muster with the Supreme Court), requiring universities that accept federal funds to let the ROTC on campus (something many colleges have refused to do, ostensibly on grounds of protesting Don’t Ask, Don’t Tell but in some cases likely due as well to a more general antipathy to the military and its missions). The Solomon Amendment, at least, vindicated a compelling interest of the federal government (military recruitment), but it nonetheless was yet another example of how the universities’ dependence on federal money left them vulnerable to dictation from Washington.

How would liberals like it – they may live to find out – if a future GOP president used the same authority to ban federally-funded hospitals (effectively all of them) from disconnecting feeding tubes, regardless of contrary hospital policies or state laws? The Terri Schiavo contretemps in Congress and the courts would have been resolved with a single stroke of the President’s pen. Or imposed restrictions or disclosure requirements on their performing abortions? Or a ban, for that matter, on visitation rights for gay couples? While in some cases the Left would undoubtedly rely on having federal judges’ policy preferences on these issues trump those of the federal executive branch, the resolution of the drinking age and Solomon Amendment cases underscores the fact that they would not in every case succeed with that strategy.

James Joyner:

Now, it’s a long way from a directive memo to enforcing regulations.  But it sounds like Obama is ordering a very broad right of hospital visitors to designate whomever they wish be allowed to visit and carry out medical decisions.  This will have a disparate impact on homosexuals, of course, but it bypasses the “special rights” argument that opponents of gay rights typically cite.  And they’d have a point in this case were Obama to privilege homosexual couples over non-married heterosexual couples.

If my interpretation of what Obama is doing is correct, then I wholeheartedly support the policy outcome.  It’s long past due.

I am, however, a bit concerned about the implementation on at least two grounds.

First, I agree with AllahPundit that this is a matter for legislation — i.e., Congress — not executive order or regulation.  This isn’t a clarifying instruction on enforcement of an existing law.  It’s a rather broad law in and of itself.  That’s beyond the reasonable scope of presidential power.

Second, it demonstrates the darkest fears of those of us who are suspicious of the expansion of government control over the healthcare system.  Inevitably, the creation of even limited government programs provides a wedge to allow government to control the entirety of an enterprise.  So, the existence of Medicaid gives government the right to dictate all manner of unrelated hospital policies — even for the vast majority of patients not on Medicaid.  (It’s not just healthcare. The existence of school loan programs or the GI Bill gives the government the power to dictate all manner of unrelated educational policies.)   It’s the proverbial camel’s nose under the tent.  And, if the president can, on a whim, dictate something as mundane as hospital visitation policy, what can’t he dictate with regard to healthcare?

Pam Spaulding:

Countless tragedies have occurred because of denial of access or ability to decide on the health of a loved one because the hospital would only recognize the rights of a blood relative.

I’m happy to report that my state, North Carolina, recently put this into place on its own, as you’ll see in the memo.

According to the White House, these measures could require substantive changes to the visitation policies of hospitals in at least twenty-five states whose laws do not currently require the extension of visitation rights, and will hold hospitals participating in Medicaid or Medicare to the highest care standards nationwide.

The changes in this official memorandum also benefits widows and widowers without children, members of religious orders, and others whom otherwise may not have been able to receive visits from good friends and loved ones who are not immediate relatives, or select them to make decisions on their behalf in case of incapacitation.

David Dayen at Firedoglake:

The order seeks to give health care providers the best access to patient’s medical histories from their loved ones, and to get the proper intermediaries to communicate medical decisions for those incapacitated. And it provides some basic fairness to all patients, but particularly those in the LGBT community. This would be enforced by applying it to any hospital receiving Medicare or Medicaid funding, which makes it virtually universal.

Hospital visitation is important, and this is a compassionate order. But it’s a small step in the grand scheme of things, one that the President has offered in the past in place of movement on marriage equality or repealing the Defense of Marriage Act. AmericaBlog’s Joe Subday, reacting to this order, said he’d rather the President get around to those weightier issues.

The President will probably not be able to get by along the edges, given the harm alrady done in the relationship with the LGBT community. ENDA’s prospects look decent in the House, but repealing Don’t Ask Don’t Tell seems stalled, as the military has apparently succeeded in delaying it. Unless and until there’s movement on those issues, these lesser orders will be met with a smile and a tapping of the foot, waiting for the campaign promises to be kept.

Joe Sudbay at AMERICABlog:

Last June, when NBC News anchor Brian Williams asked the President about marriage equality, Obama gave an answer instead about hospital visitation:

BRIAN WILLIAMS: Do gay and lesbian couples who wish to marry in this country have a friend in the White House?

PRESIDENT OBAMA: I think gays and lesbians, uh, have a friend in the White House (pause) because I’ve consistently committed myself to civil unions, making sure that they have the ability to visit each other in hospitals, uh, that they are able to access benefits, uh, that they are, uh, have a whole host of legal rights that they currently, uh, do not have. Uh, I don’t think that, uh, it makes sense for, uh, the federal government to get in the business of determining what marriage is, uh, that isn’t, uh, traditionally the federal government’s role.

Weak answer. And, some of us are still wondering if we have a friend in the White House. Obviously, making sure gays and lesbians have “the ability to visit each other in hospitals” became a key issue for the President. At least he’s starting to deliver on that one. It’s nice. But, frankly, I’d prefer he work on repealing DOMA and finally get around to supporting marriage equality.

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It Makes The Children Very Sad And Nervous When The Two Branches Of Government Fight With Each Other

Robert Barnes at WaPo:

Chief Justice John G. Roberts Jr. has presented the rebuttal argument in Obama v. Supreme Court.

Roberts’s remarks Tuesday protested the timing of President Obama‘s State of the Union disapproval of the court’s decision in a major campaign finance case. It has begun Round Two in what appears to be a growing inclination from the White House and Democrats in Congress to criticize the court’s decisions.

The White House fired back Tuesday night with a statement that did not address the substance of Roberts’s comments but with another broadside at the court’s decision in Citizens United v. Federal Elections Commission. Press secretary Robert Gibbs accused the court of opening “the floodgates for corporations and special interests to pour money into elections — drowning out the voices of average Americans.”

The court ruled 5 to 4 in January that corporations and unions had a First Amendment right to use their general treasuries and profits to spend freely on political ads for and against specific candidates.

Roberts’s comments came Tuesday in a question-and-answer session with law students at the University of Alabama. He turned down a chance to address criticism of the decision, saying “I’ll have to let my opinion on that speak for itself.”

But later he was asked whether it was proper to use the State of the Union address to “chide” the court for its decision.

“First of all, anybody can criticize the Supreme Court without any qualm,” he said, adding that “some people, I think, have an obligation to criticize what we do, given their office, if they think we’ve done something wrong.”

He continued: “So I have no problems with that. On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.”

Allah Pundit:

“I’m not sure why we’re there,” he added, which I assume we can read as his personal flipping o’ the bird in reply to next year’s invite. As for Obama’s Court-bashing, don’t expect that to stop with the SOTU: Public opinion is overwhelmingly on his side regarding the Citizens United decision. Which brings the total number of issues these days on which the public is overwhelmingly on his side to, I guess, one. Exit question: Safe to assume that only the liberal justices will be at the state of the union next year? Or will smilin’ Anthony Kennedy once again answer the bell for the left?

Glenn Greenwald:

It’s not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can’t respond that very moment (but are able, as Roberts just proved, to respond freely afterward).  Even in the State of the Union Address, it’s completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and — as the reaction to Joe Wilson’s outburst demonstrated — “decorum” dictates that the targets of the criticism sit silently and not respond until later, once the speech is done.  That’s how speeches work.  Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts’ comrade, Sam Alito, could not even bring himself to abide by that decorum).

What makes Roberts’ petty, self-absorbed grievance all the more striking is that this is what judges do all the time.  It’s the essence of the judicial branch.  Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints.  They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms — parties, defendants, lawyers, witnesses, audience members — and not merely “decorum,” but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond.  In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.

Paul Mirengoff at Powerline:

Chief Justice Roberts also said that the State of the Union address has “degenerated into a political pep rally” and added that, in light of that reality, “I’m not sure why we’re there.”

Over the past year, it has become painfully clear that President Obama has very little class. Worse, he has at times disgraced his office. The attack on the Supreme Court during the State of the Union speech was one of those times.

Dahlia Lithwick at Slate:

From President Jefferson to President Wilson, the “information” required by Article 2 was conveyed only in writing. One solution to all these bruised egos and hurt feelings is to return to a written State of the Union. Everyone can read it and emote freely while sitting on their toilets. Another option is for the justices to attend the State of the Union, with or without the black robes, and indulge in all the eye rolling, high-sticking, and grousing they would indulge in if, say, they were behind a lectern at the University of Alabama School of Law. The third option—the one exercised this year by Justices John Paul Stevens, Antonin Scalia, and Clarence Thomas—is not to come at all. For whatever it’s worth, however, this was hardly the first State of the Union to have “degenerated into a political pep rally.” Bill Clinton was booed during the 1994 State of the Union when he promised “only the wealthiest 1.2 percent of Americans will face higher income tax rates.” And Ronald Reagan’s 1987 State of the Union was described by Michael J. Casey as an effort to “fan the flames of the Cold War, to glorify the military, and to heap scorn on the poor.” The audience ate it up. No wonder Scalia and Stevens dropped this scene from their schedules. The justices who still attend must have some vested interest in being seen there.

Roberts’ word choice yesterday echoed almost perfectly the language used a few weeks ago by Justice Clarence Thomas, who offered up a lengthy defense of the Citizens United decision in a speech at Stetson University College of Law in Gulfport, Fla. Thomas explained that he had stopped attending the State of the Union because “it has become so partisan, and it’s very uncomfortable for a judge to sit there. … There’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments.”

James Joyner:

But here’s the thing:  The president, the Congress, and the Supreme Court are theoretically equals.  Judges and those appearing before them are not.

In reality, though, the president and the Justices aren’t equals.  The former presents himself as the leader of the country and gets to lecture everyone else.  There are no comparable venues where the president comes and sits quietly while judges berate him.

It’s true that presidents criticize Congress in these speeches and outburts such as “You lie!” are considered poor form.  But it’s not true that Congress is expected to sit there and take it; they cheer and jeer as a matter of course.   The Justices, meanwhile, are supposed to present the illusion of impartiality.

Further, unlike the president and Congress, the Court is not an elected, political institution.  They’re supposed to be impartial arbiters separate from politics.  That’s a transparent fiction, of course, but one that must be maintained.   If the Supreme Court is finally revealed to be nothing more than a band of partisans, their authority will vanish.

Finally, Roberts isn’t arguing that the Justices should get to shout “You lie!” when they’re insulted.  He’s merely questioning whether they should attend political speeches where they’ll be scolded.

Instapundit

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Executive Privilege Beyond The M & M’s On Air Force One

psdoyou

Charlie Savage in NYT:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

Adam Sewer in Tapped:

If that sounds, familiar, it’s because it’s exactly what Holder told Feingold in February, that he would “review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.” The difference between the new policy and the old policy is that the old way was “more informal,” according to Charlie Savage. In other words, the new policy seems to formalize the process by which we got the results that had civil liberties groups crying foul in the first place.

As for the timing of this announcement, bmaz points out that oral arguments are scheduled soon for the al-Haramain v. Obama case, in which the administration is attempting to block judicial scrutiny into the use of warrantless wiretapping–a case in which the plaintiff, an Islamic charity that was wiretapped by the NSA, is wiping the floor with the administration. If anything, the “new policy” seems designed to obscure the fact that the government intends to invoke the privilege again very soon.

Bmaz at Emptywheel:

Now why, lo after all these months, would the Administration suddenly announce their “new policy” at this instant? One reason certainly might be the fact that oral argument on plaintiffs’ motion for summary judgment in the absolutely critical state secrets case of al-Haramain v. Obama are scheduled for this morning in front of Judge Vaughn Walker in the Northern District of California.

The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous “John Ashcroft hospital scene” when Jim Comey and other DOJ officials revolted and the Bush Administration was unquestionably illegally operating their program under the insufficient signature of White House Counsel Alberto Gonzales.

But the monster problem that may be lurking beneath even this surface is that when Bush’s DOJ submitted declarations to the court describing their program and why state secrets were being invoked in 2006, they did not describe the underlying process by which they picked targets, to wit data mining. And the existence of data mining is a huge problem, because all activities in that regard had been rendered illegal and were specifically defunded by Congress in the Appropriations bill for that year.

Blog of Legal Times:

Holder’s proposal could head off an effort by Congress to legislate restrictions on the privilege. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, has sponsored legislation to do just that, but he held off acting on his bill this summer in order to give Holder time to finalize an internal Justice Department plan.

Within minutes of the plan’s release, Leahy’s office sent out a statement largely supporting it. The new policies “bring a higher degree of transparency and accountability to a process previously shrouded in darkness,” said Leahy (D-Vt.). But, he added, Congress will have to monitor how the policies work and whether the government makes a “substantial evidentiary showing” when it invokes the privilege.

Holder’s memo promises periodic reports to Congress, and it sets out a procedure for invoking the privilege that would involve a large chunk of the Justice Department leadership. A State Secrets Review Committee “consisting of senior Department of Justice officials designated by the Attorney General” would make a recommendation to the deputy attorney general after an evaluation, and the deputy attorney general would then make a recommendation to the attorney general.

Dday:

The problem is that the people deciding whether “significant harm to national defense or foreign relations is at stake” remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it’s not that I don’t trust Eric Holder or the review committee tasked with making this determination, I don’t trust who comes after him. Case in point – Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.

It’s not enough for the executive branch to police itself. Congress should act.

Glenn Greenwald:

On a different note, the so-called “new state secrets policy” which the Obama DOJ is set to unveil is such a self-evident farce — such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing — that I couldn’t even bring myself to write about it.  It would not have altered a single one of the controverisal uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself).

Jonathan Adler:

This change may have been a long time coming, but that is not a surprise. Federal policies of this sort cannot be changed overnight — at least not without substantial cost. Specific policy guidelines and supporting memoranda must be drafted and approved after input from affected agencies. This can be a lengthy process, particularly when key offices in the relevant agency are vacant and the Administration has other pressing priorities on its plate. While I suppose the President could have immediately suspended reliance on the privilege, he took a more responsible course: ordering a review of how the privilege is used and tasking Justice Department attorneys with developing a new policy that will safeguard vital government interests in a less intrusive fashion.

Based on these news reports, it sounds like the new policy is a significant improvement. The state secrets privilege should be used quite sparingly, and only then as a last resort. It should not be a ready tool to make embarrassing or inconvenient litigation go away. Developing more formal guidelines is also an improvement, as the lack of clear rules makes it easier to invoke the privilege unnecessarily. It is only natural for government attorneys to seek any and all means of dismissing unwanted litigation — after all, their goal is win for their client (which, for most governemnt attorneys, is the government). Therefore, clear rules and procedures limiting the privilege will reduce this potential for abuse. Even if the new policy would have allowed invocation of the privilege in the recent cases that sparked the controversy, it should provide greater assurance that the privilege is only invoked when it serves a legitimate purpose.

Daphne Eviatar at Washington Independent

Kevin Drum

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It May Be A Weird Institution, But It’s Our Weird Institution

Matt Y notes that Felix Salmon notes two posts. David Roberts at Grist (on cap and trade):

Republicans have settled on a strategy of blanket opposition to both the health care and climate legislation. This obviously isn’t in the best interests of the country; it’s not even obviously in the narrow self-interest of many Republicans. Nonetheless, a combination of increasing ideological rigidity, lack of new ideas, and sheer cussed habit has taken the Right completely out of these debates, except as rock-throwers and gear-grinders. They’ve decided that Democratic successes on either of these major initiatives could fuel further electoral losses, and that’s their worst fear.

It didn’t have to be this way, and many people I talked to evinced genuine surprise at how it’s turned out. The climate bill strategy, for instance, got rolling in December, way back pre-Obama stimulus plan. It was designed around the assumption that in the wake of Obama’s historic win and efforts to reach out across the aisle, a few Republicans could be peeled off.

That didn’t work out. And it can’t be overstated how much unified Republican opposition is shaping things. The debate is entirely between Democrats, entirely along regional lines, and “moderate” Democrats (i.e. those hailing from carbon-intensive districts) have been accorded enormous power. Witness Boucher’s triumphs in the House.

In the Senate, there are maybe two Republican yes votes—the last moderates standing, Olympia Snowe and Susan Collins from Maine. That means to get cloture, Dems can lose no more than two votes from their own caucus. Meanwhile, there are far more than two senators on the fence (at best) or likely nos (at worst): Mary Landrieu (Louisiana), Evan Bayh (Indiana), Ben Nelson (Nebraska), Blanche Lincoln and Mark Pryor (Arkansas), and several others.

And John Gapper at Financial Times (on financial regulation):

The US administration has clearly decided that it simply cannot get any large-scale consolidation of regulation through Congress, given the vested interests involved. But that makes its response to the financial crisis seem more like a whimper than a bang.

Salmon then says:

How did Obama manage to spend all his political capital so quickly? Did it all go on the stimulus bill? Wasn’t the whole point of bringing Rahm in as chief of staff that he could work constructively with Congress to pass an ambitious agenda? And isn’t Obama himself the first president since JFK to have entered the White House from the Senate? I’m not sure when everything went wrong here, but I fear that the damage is now irreparable — and that Obama’s agenda is going to be severely scaled back as a result.

To which Matt Y responds:

The American presidency is a weird institution. If Barack Obama wants to start a war with North Korea and jeopardize the lives of hundreds of thousands of people, it’s not clear that anyone could stop him. If he wants to let cold-blooded murderers out of prison, it’s completely clear that nobody can stop him. But if he wants to implement the agenda he was elected on just a few months ago, he needs to obtain a supermajority in the United States Senate.

Josh Patashnik responds to Matt:

I don’t really see how this makes the presidency a weird institution–what it means is that presidential campaigns are very strange creatures. The reality is that we have a system of government in which domestic policy is by and large set by Congress. You might think this is a good thing or a bad thing–I tend to think it’s a good thing–but it certainly isn’t a new thing; it’s the way the system has always worked. In a more rational world, presidential campaigns would focus exclusively on questions of foreign affairs, judicial appointments, how to run the administrative state, and so forth. Voters would laugh off the stage any presidential candidate pledging to reform entitlement programs or labeling herself the “commander in chief of the economy,” and no campaign would bother putting out, say, detailed proposals for health care reform. It would be almost as ridiculous as a candidate running for the House of Representatives on a platform of overturning Roe v. Wade (though, come to think of it, I guess that happens a fair amount too).

Matt responds to Josh:

I think this goes a little bit too far, but I basically agree. In particular, when it comes to domestic policy we spend way too much time discussing the ins-and-outs of candidates “plans” and too little time talking about how they envision interacting with congress. During the general election, it was extremely difficult to picture what a McCain administration would actually look like given that a Democratic Congress was essentially inevitable. And during the Democratic primary, debates between the candidates often seemed to presuppose that sheer force of will could get a health reform bill enacted. Meanwhile, I don’t recall the candidates in either the primary or the general having anything interesting to say about minor things like China.

Big Tent Democrat at Talk Left:

Yglesias has this wrong. The American Presidency is only weakened on policy when Democrats hold the office. This is, in part, because the Left Flank of the Democratic Party is incredibly ineffectual.

I once thought that the Left blogs could help to change that. But it seems there is much more interest in being Charlie Cooks and Stu Rothenbergs or in engaging in food fights with the Right blogs and Glenn Beck than in shaping the policy of the country .

Between the two posts above, Yglesias has another post up about the American system:

Now of course Texas is also a big state (though at 7.81 percent of the population it’s a lot smaller than California) and there are small states (like Vermont and North Dakota) that have two Democratic Senators. So the point here isn’t a narrowly partisan one, though the wacky apportionment of the Senate does have a partisan valence. The point is that this is an unfair and bizarre way to run things. If you consider that the mean state would contain two percent of the population, we have just 34 Senators representing the above-average states even though they collectively contain 69.15 percent of the population. The other 66 Senators represent about 30 percent of the people. If the Iranians were to succeed in overthrowing their theocracy and set about to write a new constitution, nobody in their right mind would recommend this system to them.

James Joyner responds:

Probably not — but we might have been better off recommending something like that to the Iraqis.  Some form of strong federalism or even confederalism makes a lot of sense in cases where states are comprised of geographically bound subgroupings with a strong sense of separate identity and history of autonomy.

The problem in the United States is that our current system no longer reflects the reality on the ground.  Most of us are now highly mobile with no strong sense of place-related identity.  Most Californians or New Yorkers or Virginians probably just think of themselves as Americans and only incidentally as residents of their states. This is least true, however, in the less populated states, which tend to be comprised of residents with intergenerational roots and therefore much more provincial.

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Conor Friedersdorf And Andy McCarthy Have A Conversation

Prior to Obama changing his position on the torture photos,  Andy McCarthy had this article up at National Review:

American soldiers, American civilians, and other innocent people are going to die because Pres. Barack Obama wants to release photographs of prisoner abuse. Note: I said, “wants to release”not “has to release,” or “is being forced to release,” or “will comply with court orders by releasing.” The photos, quite likely thousands of them, will be released because the president wants them released. Any other description of the situation is a dodge.

Conor Fridersdorf replied to the post at The American Scene:

This sounds an awful lot like the arguments advanced by some torture opponents, who assert that evidence of brutality is always going to get out, and that the backlash undermines our safety more meaningfully than any information gained enhances it.

Later, linking to McCarthy posts here, here and here, Conor writes:

How can men who make these claims about Barack Obama simultaneously insist that a country governed by him is well served by an executive branch given expansive powers during war time? How can they insist that he’ll end freedom in America, and defend the idea of warrantless wiretapping? Is it credible to argue that he is a radical opportunist who seeks the prosecution of political opponents, and that he should have the power to order waterboarding, “walling,” and other brutal interrogation tactics? It’s as if one moment they’re comparing him to Joseph Stalin, and the next they’re demanding that he wield all the power they helped afford him by arguing for its righteousness during the Bush era.

McCarthy answers:

Mr. Friedersdorf asks: “How can men [like moi] who make these claims about Barack Obama simultaneously insist that a country governed by him is well served by an executive branch given expansive powers during war time?” The answer is straightforward — though not necessarily simple. The president is given expansive war powers during war time. Not expansive power in general — not a warrant to remake the government or our society.

More when it happens

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