The Rule Of Law

by hilzoy

From the NYT:

"On the second day of confirmation hearings before the Senate Judiciary Committee, Mr. Mukasey went further than he had the day before in arguing that the White House had constitutional authority to act beyond the limits of laws enacted by Congress, especially when it came to national defense.

He suggested that both the administration’s program of eavesdropping without warrants and its use of “enhanced” interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the president’s authority as commander in chief might allow him to supersede laws written by Congress."*

I haven't been able to locate a transcript of the hearings, but one of the points at which Mukasey said this is the following:

"Asked if the president had the constitutional power to authorize an illegal act, Mukasey said yes and no simultaneously:

"If by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.""

Last time I checked, the Constitution does not give the President the authority to defend the country. It says that he "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" (Art. 2 sec. 2), but that's hardly the same as saying that he gets to do whatever it takes to defend the country. On the other hand, the Constitution explicitly says that the President "shall take Care that the Laws be faithfully executed." (Art. 2, sec. 3.) It doesn't say that he has to take care that the laws he likes, or the laws he feels like obeying, or the laws he would have passed if he were the Congress, shall be faithfully executed; it says that he has to take care that the laws, period, without exception be faithfully executed. How anyone can look at Article 2 and conclude that the President has the right to disobey duly enacted laws when the national defense requires it is a mystery to me.

This is not a minor matter. The Attorney General is the chief law enforcement officer of the United States. If he is not firmly committed to the rule of law, and to the idea that the President is bound by any law enacted by Congress, and to the view that when he thinks a law is wrong, the correct response is either to challenge its constitutionality in court or to suck it up and obey it, then he should not be confirmed.

It's as simple as that.

***

* Question: what is the point of the word "technically", in the NYT's phrase "what the law technically allowed"? Is there some other way in which something can be against the law? If not, why add this word, if not to belittle the need for the nation's highest law enforcement officer to obey the law?

Comments

[DCA]

My own take would be that a strict construction of the C-in-C powers means that he is at the top of the chain of command for the military, and gets to issue *lawful* orders to them (unlawful orders are not supposed to be obeyed). Unfortunately there has been a long, long tradition of mission creep in what the C-in-C powers actually are taken to cover--well predating this administration. E.g., Truman's action on the steel mills was not taken to be outside his powers a priori, even though he was over-ruled. All that said, I'd agree that Mukasey's phrasing leaves a hole big enough to drive a quasi-dictatorship through, if someone wanted to try (I do not think this is Cheney's goal, he just wants to make things more "efficient".)

I wonder if this is what we will be hearing from conservatives after a Democrat is elected.

[Ara]

So I am curious about what the constructionist attitude towards this is, considering that Alito, Roberts, Scalia, et al. seem to read expansive powers into the CinC?

Come to think of it, where are the constructionists on the issue of gun rights?

Any lawyers here?

[Tillman Fan]

I still don't understand why it isn't big news in the media that many of our elected and appointed officials believe that our executive branch (through the President) has the authority to violate laws and detain American citizens indefinitely without charges being filed. What the hell is going on?

[Ara]

Tillman: I suspect it's because most of them don't think that they are the types to be detained.

And they figure the threat from their government is less than the threat from the terrorists.

[Brett Bellmore]

"Last time I checked, the Constitution does not give the President the authority to defend the country."

I agree with your analysis, but the last time I checked, the Constitution didn't give Congress authority to legislate on most of the subjects it presumes to pass laws on, either. Bit late in the game to try to resurrect the Constitution's limits on the various branches' powers, isn't it?

[Redhand]

"The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution."

Translation: "The President can ignore any statute if I as AG say obeying it creates a conflict with his 'constitutional duty' as Commander-in-Chief 'in a time a war' (never mind that Congress hasn't declared one)."

Sorry, but I'm afraid all we're going to get is a smarter yes-man for Cheney and Addington. If I were in the Senate I'd vote "no" on this bird.

[John Snape]

This worries me:

Hillary's missing donors

[Brett Bellmore]

As well you should be worried; That's the big downside to Democratic denial concerning Clintonian wrongdoing: You've had your eyes so tightly pinched shut where the Clintons were concerned that you could be blindsided by Hillary just... being Hillary.

Unless she's changed enormously since the 1990's, there are going to be a lot more revelations between now and the general election.

[Doctor Science]

hilzoy: Do you agree with Kagro X, then, that it would be better to confirm nobody for AG, on the grounds that anyone Bush/Cheney nominated can be assumed to be not planning to administer the rule of law?

[Doctor Science]

hilzoy: Do you agree with Kagro X, then, that it would be better to confirm nobody for AG, on the grounds that anyone Bush/Cheney nominated can be assumed to be not planning to administer the rule of law?

[rilkefan]

"technically"

I'm guessing letter-vs-spirit. Hmm, but that makes the sentence less coherent. I'll have to go with "Newspeak".

[cleek]

there are going to be a lot more revelations between now and the general election

zzz.

you want a saint to run your country, move to Vatican City!

[Brett Bellmore]

I'd settle for a non-sociopath, actually, but regrettably that doesn't seem to be an option given our political class.

How about a sociopath who at least has the sense to be careful what she gets caught at? Is that too much to ask?

[KCinDC]

I hope as many of the revelations as possible happen before the primaries. I'm worried about the ridiculously long campaign period we're going to have between the determination of the candidates and the election.

[rilkefan]

"Clinton has enlisted the aid of Chinese neighborhood associations, especially those representing recent immigrants from Fujian province. The organizations, at least one of which is a descendant of Chinatown criminal enterprises [...]"

Since John Thullen isn't around to mention it, I will: at least one of us is a descendant of Chinatown criminal enterprises. Well, not exactly, but the LATimes may think so.

[hilzoy]

Dr. Science: I prefer to take nominees on a case by case basis, rather than deciding in advance that I will not approve of any of them. I do find it unlikely that Bush will nominate anyone I will be particularly happy about. However, I plan to wait and see who nominees are before deciding what I think of them.

While I'm not particularly inclined to think that campaigns have to spot all troublesome donations, I did find that article worrying. All the more so since, while I thought that most of the allegations made against the Clintons were either flat lies (crack pipes on the Christmas tree, anyone?) or mountains made out of molehills, there were a couple that I found quite worrying. That one about cattle futures that increased in value to a degree that's pretty hard to explain as a result of normal market forces, for instance. And it was my understanding that Hillary did the finances for the family.

[John Thullen]

"You've had your eyes so tightly pinched shut where the Clintons were concerned that you could be blindsided by Hillary just ...... being Hillary.

I've never looked into John Snape's eyes, so I wouldn't know what surprises him.

I doubt, too, that many here have failed to notice the Clintons' liabilities, though we have been preoccupied somewhat by present circumstances.

But, speaking for my own self, Hillary's (not that one, the other one) not my favorite, and, anyway, I don't trust anyone who has the chops (sociopathy) to run for President in this country and win.

I will be interested to learn why Chinese donors are so prevalent; if the money is traced somehow to Peking, it'll be a fun year. If the money is traced to Taiwan, one might ask how it is that the Taiwanese prefer Hillary over others, particularly the Republican candidates.

It is all thrillingly mysterious.

So far, though, with limited evidence, I trust non-existent poor Chinese campaign donors just slightly more than I trust who I know financed and elected George W. Bush.

Choosing between influence-peddling Chinese and influence-peddling Texans has always been a tough one for me.

Another observation: The candidates on either side (Ron Paul, Tom Tancredo, Dennis Kucinich,, umm, Dick Cheney) who seem to be completely honest dealers and uncompromising true believers in their strongly-held principles, I'm quite sure, would utterly wreck the country ... because they are, simply put, crazy whackjobs.

I'll take flexible corruption over impractical singlemindedness any day, although the current occupant of the White House has taken flexible corruption to new, inflexible heights.

Obama is a cipher for me, so far. He'll turn out to be human, I'm sure. How human is the question. The American people like candidates just like them, unless they are too much like them, technically speaking.

But that's just me.

P.S. I see Cleek speaks a more succinct me.

PPs: Rilkefan. I don't get your poem???. ;)

[Redhand]

"As well you should be worried; That's the big downside to Democratic denial concerning Clintonian wrongdoing: You've had your eyes so tightly pinched shut where the Clintons were concerned that you could be blindsided by Hillary just... being Hillary."

If Hillary wins, I think there's little doubt that the constitutional damage Bush has done will be replaced by the same old Clinton money corruption, self-dealing and influence peddling. Funny how the Clintons are absolutely addicted to Chinese campaign contributions, isn't it? Nothing like selling out the national interest to the highest foreign bidder, is there? . . . except for Bush and Cheney's illegal power grabs, that is. Funny how the Bush Administration can make even the Clintons look good by comparison.

What's not funny is the realization that we're becoming like a third world country whose people are ruled by self-interested oligarchs from a few powerful families that take turns being at the helm. A Bush-Clinton-Bush-Clinton series of presidencies is ominous for the health of our democracy, such as it is these days.

[Steve]

I really shouldn't have to say this, but there's a pretty huge difference between taking money from China and taking money from Chinese-Americans, notwithstanding that they may all look alike.

[Brett Bellmore]

Yeah, but based on what took place during the Clinton administration, there's not a lot of difference between taking money from China, and taking money from China laundered through Chinese-Americans.

[rilkefan]

"based on what took place during the Clinton administration"

Monica's not a shiksa? Huh, guess it's like that old joke I never understood.

[Jesurgislac]

Brett: Yeah, but based on what took place during the Clinton administration, there's not a lot of difference between taking money from China, and taking money from China laundered through Chinese-Americans.

Yeah, because when one Chinese-American is convicted of taking money from the Chinese government and giving it to a political campaign, that means all political donations from Chinese-Americans are suspect. Sure, that makes sense. Say, why not have all Chinese-Americans locked up in camps, just in case?

[Redhand]

"Yeah, but based on what took place during the Clinton administration, there's not a lot of difference between taking money from China, and taking money from China laundered through Chinese-Americans."

That's right. If you think that the stink of the money trail back to China was limited to one individual, well, you do have blinders on. There can be little doubt that mainland China was enormously interested in funneling $$ here, and that it benefited enormously, viz. the Loral Corp. technology transfer that improved their missile capability. Of course, it could be a mere coincidence. [sarcasm]

[Brett Bellmore]

Jes, I am, of course, well aware that, in addition to the laundered contributions (From what ultimate source, we as yet don't know.) Hillary has, like all the other candidates, gotten some legitimate contributions from Chinese Americans.

But she IS getting a remarkably large amount of money in the form of laundered contributions channeled through Chinese-Americans. And if you go back to the Clinton administration, you'll notice that little scandal about... laundered contributions from the Chinese government.

Somebody in China really likes the Clintons. Which isn't necessarily a dig at her. But she seems to have a bit of trouble turning down dirty money before the public learns of it.

[kid bitzer]

ah, nothing like a little wing-nut threadjack.

hilzoy draws our attention to the fact that bush has nominated an attorney general who willfully misrepresents the constitutionally mandated function of the president. instead of "take care that the laws be faithfully executed," mukasey seems to think the text reads "do whatever the hell he feels like."

and the right-wing response is...?

to dispatch the usual morons to say "but clinton did...something!"

what pathetic shills.

[Brett Bellmore]

See my first comment, Kid; I agree with Hilzoy's reasoning here, maybe it ought to be applied to Congress, too. Beyond that, what's to say? Bush isn't going to nominate anybody who's dedicated to restoring a strong version of enumerated powers doctrine, but that's not a complaint Democrats really have any standing to make.

[liberal japonicus]

restoring a strong version of enumerated powers doctrine = not waterboarding prisoners? Wow, learn something everyday.

[Brett Bellmore]

Well, since Hilzoy's argument that the President can't waterboard prisoners in defiance of the law is based on a form of enumerated powers doctrine, yeah.

[John Snape]

I think my point is: Our presumptive nominee seems to be Hillary, but if she gets the nomination, do we really want 8 years of continuous investigations again?

[Hartmut]

Hey, if we/you don't wish for any investigations into executive wrongdoing, elect a another GOPster. Choose a Dem and there will be a constant drumbeat for investigations, independent of the actual person elected. Wait for claims that the Dem pres used to sacrifice aborted fetuses to Lesbisatan and Islamogaydevil using bibles as toilet paper (and of course that the Dem lost the war and should be persecuted for it).
[/snark]

[obscure]

Brett, your tiresome default position is "but the Democrats are as bad or worse." It diminishes your powers of observation.

Behind your contemptuous Uber-cynicism, is it not the Democrats vision of a larger, more inclusive political franchise which sticks in your self-interested craw?

[Brett Bellmore]

"Hey, if we/you don't wish for any investigations into executive wrongdoing, elect a another GOPster. Choose a Dem and there will be a constant drumbeat for investigations, independent of the actual person elected."

Still in denial. Clinton wasn't under investigation because he was a Democratic President. He was under investigation in Arkansas before he ever ran for President!

The guy is just a crook, you can't seem to accept that. And he and Hillary are a matched set.

Look, I'm not, due to my policy preferences, going to like any of the Democratic candidates, but Hillary is a different matter. There's a REASON we're not reading this story about, for instance, Edwards.

"Brett, your tiresome default position is "but the Democrats are as bad or worse." It diminishes your powers of observation."

Didn't say the Democrats are worse, as such. That's debatable. What I said is that they've got no standing to be making enumerated power arguments, given their attitude towards enumerated power doctrine when it comes to Congress.

[hilzoy]

Actually, I didn't make an argument about waterboarding. The quote in question is about disregarding the FISA law.

[Katherine]

Brett, could you point to a specific thread where an abuse of power under this administrations was discussed & you did NOT divert it to a discussion of: (1) why Hamer v. Dagenhart was right & the New Deal is unconstitutional, (2) the Second Amendment, (3) the Clintons? I'm not saying it doesn't exist but I can't remember a single example.

[Katherine]

In fact, the cramped reading of Congress's enumerated powers that Brett favors is also what Yoo favors. That allows him to argue that Congress has very few powers when it comes to foreign affairs & nat'l security, so everything left over goes into the vast, mysterious Executive Power. To maximize Executive Power you want to read the commerce clause (which can be used to justify FISA); the regulation of the Armed Forces clause; the captures on land & waters clause; the declare war clause; & the define & punish violations of the laws of nations clause; & the necessary & proper clause as narrowly as possible.

[Francis]

Brett: Debates about the commerce clause don't really belong in debates about the scope of the CinC power. Also, the mere fact that you disagree with the Sup Ct's decision in Raich doesn't make any difference. The Sup Ct has once again upheld a broad construction of the Commerce Clause, this time with a so-called conservative court.

But what you're distinctly ignoring, as is Mukasey, is the scope of legislative power in this area, to wit:

make Rules concerning Captures on Land and Water; ...

To make Rules for the Government and Regulation of the land and naval Forces;

[obscure]

Didn't say the Democrats are worse, as such.

A friendly reminder: my characterization, "as bad or worse." The fact that you missed that speaks to my point about your powers of observation.

[rilkefan]

obscure, maybe your point would be stronger without the "The fact that you missed that speaks to my point about your powers of observation."

[russell]

that's not a complaint Democrats really have any standing to make.

Lots of folks who are complaining aren't Democrats. Some are even sympathetic, or at least open to, your comments about Congressional overreach.

In any case, the problem that is before us now, today, is Mukasey.

Personally, I consider the kind of expansionist, unaccountable executive that Bush and his gang champion to be a far greater, and a far more imminent, threat to my liberty than either Congressional overreach or the kind of petty, self-serving corruption that characterized the Clinton administration.

Not to discount either of those, but IMO they are just not comparable to allowing the executive to hold people against their will without legal recourse, and to do with them as it desires, including torture, to the point of inducing insanity or suicide.

That is what is on the table. Not hypothetically, but in fact and practice, today.

ah, nothing like a little wing-nut threadjack.

A corollary to Godwin's Law:

As online discussion of the Bush administration grows longer, the probability that the discussion will turn into one about the Clintons (either or both) approaches one.

Thanks -

[Oyster Tea]

I don't care what the topic is, the comments on ObWi are always top notch!

[russell]

Last time I checked, the Constitution does not give the President the authority to defend the country.

Quite right.

Back in the days of feudalism, heads of government actually did have both the authority and responsibility to defend the polity as a whole. What that meant in practice was that they were expected to put their armor on, saddle up, and ride.

Bush has the dress up part down, but not the rest.

The responsibility for defending the country belongs, broadly, the the people who live here. The decision to engage in war, per the Constitution, belongs to us as well, via our elected representatives in Congress.

Yes, I am well aware that the role of the executive has expanded over the years through some kind of "mission creep" to what it is now. The situation we see now is where that has brought us.

Folks like to invoke the founders. Everything I've ever read by the founders on the subject indicates to me that vesting the authority to initiate war in the executive is the last, by God last, thing they ever would have supported.

I say it's time to roll back the historical precedents and get back to what the Constitution actually says. It's a pretty well written document, it's not hard to grasp the intent.

The kind of crap we see nowadays is what caused us to separate from England in the first place.

Thanks -

[Carleton Wu]

Brett,
Id draw a significant distinction between arguments about the scope of the Commerce Clause and what's being done with the CIC powers- the former expands the power of the federal government, but does not itself threaten the democratic foundations of our system of governance. Allowing the President to decide when he can violate laws to protect the country does do so, IMO.

That is, they are different kinds of problems. If Hillary is elected and declares martial law & herself president-for-life, it would not be just another 'disagreement about Constitutional interpretation', on the same level as debates over whether porn is free speech.

As to why we're talking about 90s-era campaign finance stuff, I have no idea. Other than that this is the the apparently instinctive winger reaction to any irrefutable GOP misdeed.

[Jesurgislac]

More to the point: the soft money rules do enable foreign governments to donate to Presidential candidates they'd prefer to win. I note Brett is not interested in the most obvious example: the Bush administration's links with the Saudis, and consequent failure to tie blame for 9/11 back to the country of origin of the majority of the hijackers.

[Redhand]

As to why we're talking about 90s-era campaign finance stuff, I have no idea.

D'oh, perhaps because we're seeing history repeat itself in the current Clinton's campaign fundraising antics.

Other than that this is the the apparently instinctive winger reaction to any irrefutable GOP misdeed.

Now this is demagoguery. Most former conservatives like me appreciate, to quote Russell, "that the kind of expansionist, unaccountable executive that Bush and his gang champion [is] a far greater, and a far more imminent, threat to my liberty than either Congressional overreach or the kind of petty, self-serving corruption that characterized the Clinton administration." And I'm a minor voice compared to John Cole over at Balloon Juice.

Mentioning Clinton as I first did, and as Brett more vigorously followed up, doesn't mean that we are Malkin-like wingnuts "hijacking" the thread. In a discussion like this I think it's entirely appropriate to express reservations about the degeneration of our political system as a whole, while pointing out that the current incumbents represent a far greater threat to our democratic institutions.

What I do find disturbing in any "leftist" reaction to mention of prior Clinton misdeeds is the "old news" mantra that their spinmeisters used to minimize their misdeeds 24 hours after they occurred. In my view, Bubba and Hillary were the most corrupt pair in US history to occupy the White House, . . . prior to Bush and Cheney. I take cold comfort in the prospect of a Clintonian return to power, and would greatly prefer to see somebody less experienced and more jejune like Obama in the Office. That's who my "money" is on in the current race.

[Jesurgislac]

Redhand: In my view, Bubba and Hillary were the most corrupt pair in US history to occupy the White House

You forgot Nixon, who escaped prosecution only by a general presidential pardon after he resigned; and you forgot Ronald Reagan, who sold arms illegally to Iran to fund terrorists in Nicaragua and who escaped prosecution by claiming that he had known nothing about it despite being present in meetings when it was discussed; and you forgot George Bush, also implicated in the arms-to-Iran scandal, who escaped prosecution by hasty Presidential pardons.

Also, you seem to have forgotten that despite the very thorough investigation by a hostile independent counsel, nothing criminal was discovered against either of the Clintons, and the counsel was reduced to picking a sex scandal and questioning Bill Clinton about it under oath in order to be able to prosecute him for perjury.

The notion that the Clintons were "the most corrupt" in a recent roll call that includes Nixon, Reagan, and Bush Senior is pure Republican hogwash.

[Jesurgislac]

(The previous comment should not be taken as support for Hillary Clinton, by the way: just as annoyance at Republicans clinging to their myth that they were right to hate and fear Bill Clinton.)

[Brett Bellmore]

Nixon was fatally flawed in a way Clinton wasn't: Too corrupt to behave honestly, too honest to stubbornly hold onto power after getting found out. Based on the events of the '90's, I'd say the only lesson Clinton learned from Nixon was, "Never stop stonewalling!"

[Jesurgislac]

Brett: I'd say the only lesson Clinton learned from Nixon was, "Never stop stonewalling!"

Wow. I think that's Republican delusion at its best, or worst: to claim that Clinton was just as bad as Nixon, only more stubborn.

Nixon was actually guilty of serious crimes, Brett. Clinton was actually guilty of having a covert affair with a White House intern. I think Republicans who try to compare or equate the two are either seriously nutzoid and believe that having sex outside marriage is a serious crime, or are seriously corrupt and think that campaign fraud, political espionage and sabotage, illegal break-ins, and warrantless wiretapping on what would have been considered before George W. Bush to be a massive scale, are exactly as unserious as adultery.

Nixon was so corrupt a President that George W. Bush is his only serious competition - and that after Reagan and Bush Senior. (Reagan was, after all, suffering from undiagnosed dementia during his Presidency, and may genuinely have been "not guilty by reason of senility". But Bush Senior doesn't have that excuse - and, just like his son in the Plame Affair, he exercised his power of pardoning to escape prosecution.

Next to this crew of criminals, Clinton is guilty of vulgarity as President - but not corruption. That's a Republican myth.

[Jesurgislac]

Brett: too honest to stubbornly hold onto power after getting found out

Oh, come off it. If Nixon had continued to hold onto power, the one thing he couldn't have done was grant himself a free pardon. Resigning so that Ford could pardon him was a neat way to escape jail. If Nixon had wanted to resign because he had been found out, the "Saturday Night Massacre" wouldn't have been the resignation of Attorney Generals, but of the President and Vice President.

[Ugh]

I don't recall all of the silly things the Clintons were accused of, but of the more credible allegations of, say, corrupt campaign fundraising, Hillary's magical commodities trading, Bill's language parsing w.r.t. sexual relations, and various stonewalling, even if they were all true, they pale in comparison to the current administration. It's like comparing a mass murderer to someone who consistently drives 20 MPH over the speed limit and gets in a couple of wrecks where nobody gets hurt (if that).

The Bush administration is complicit in war crimes, but this "Oh Noes! Its Bill Clintons!" is really just stupid.

I'm perfectly happy to concede that Clinton was corrupt, but if I had to chose between Hillary having been President the last eight years and the current horror show, gimme Hillary.

And Nixon only resigned when he found out that several republicans had flipeed and he was going to be impeached and likely convicted over much more serious things than parsing the definition of words in a civil suit.

[Ugh]

And let me just note that wasn't aimed at you in particular Brett, just more general frustration. I appreciate your participation here.

[liberal japonicus]

'most corrupt' seems to be a bit OTT and the question has to be, were the Clintons as bad as people like Limbaugh and the House Republican leadership claimed they were, or was this simply poisoning the well, so that people would not believe anything. I mean, I don't see a huge gathering of wealth in the hands of arkansas cronies, and I don't see Al Gore participating in whatever it is you think that 'Bubba and Hillary' did. And it is worthwhile to note that Fred Thompson closed down the 'Chinagate' hearings quite a bit earlier than scheduled. The logical assumption is not that the Chinese and the Dems were plotting and Thompson backed away from bringing down the republic, but that the Chinese were playing both sides of the street and just as many Republicans would have been caught out as Dems. Which underlines why screaming 'Clinton did it' really is not talking about the degeneration of the political system, but avoiding the responsibility for that degeneration. You give my 90% on the Republican side, I'll give you 10% on the Dem side. You are welcome to haggle, but don't think you are going to get anywhere near 60/40.

I'm not a big Hillary fan, but it seems like a more appropriate strategy for increasing the chances is not to harp on Hillary's bad qualities, but to emphasize Obama's good qualities, though 'jejune' suggests that you simply want someone weak so that things can go back to business as usual. Yet, if the problem is with the degeneration of the political system as a whole, your reasons for supporting Obama are curious, to say the least.

[John Thullen]

The modern-day Republican Party is largely a coalition of two groups:

........ those who believe that the most colossal corruption in American history was committed by Franklin Delano Roosevelt as he instituted the New Deal. They would roll all of that back to what they consider a lost condition of Constitutional purity ...

... and the Southern Democrats who were wooed into the Republican Party, starting with Strom Thurmond in the middle of the 20th century, in reaction to the Civil Rights Movement as it was instituted (unconstitutionally in their eyes) by the Courts, and by Richard Nixon's Southern Strategy and later by Ronald Reagan's symbolic and cynical appeals to the retrograde South in his successful campaign for the Presidency in 1980, continuing today as Republican candidates pilgrimage to Bob Jones University.

Clinton's relatively petty corruptions were certainly not the worst in history, but (stupidly on his part), they were an opportunity for the Republican Party to bring down the edifice of liberal gains in the United States since 1932.

Conservatives who don't realize this are guilty of missing (a minor crime) the entire point of the Gingrich/Delay Revolution in the 1990s, not to mention much of the Reagan Revolution.

Getting Clinton for blow jobs and lying about blow jobs, and Whitewater, and commodities trades, in their eyes was like getting Al Capone for tax evasion.

Reagan's frequent mention of FDR as a hero and any southern Democrat-turned- Republican's mention of Abraham Lincoln as a Republican hero was mere sand thrown in the eyes of the electorate to mask (for swing voter's benefit) the core values and aims of today's Republican Party.

Luckily for the country, their movement is being derailed by assorted petty corruptions ---- Duke Cunningham and company, seductive foot-tapping, and George Bush's callow arrogance.

Thank God for petty corruption.

P.S. It is too bad the petty corruption didn't come to light before Bush/Cheney were able to commit their major corruption in the war in Iraq. If only Monica had resurfaced with a bobjones on for that twosome.

[Jesurgislac]

John Thullen: It is too bad the petty corruption didn't come to light before Bush/Cheney were able to commit their major corruption in the war in Iraq. If only Monica had resurfaced with a bobjones on for that twosome.

*frantically scrubs brane*

[Redhand]

"though 'jejune' suggests that you simply want someone weak so that things can go back to business as usual."

I prefer someone relatively new to national politics who may occasionally say stupid things, but who has the heart of a true reformer (Obama) to (1) someone genuinely stupid but all-too-willing to grab extra-legal powers (Bush) or (2) someone too-smart-by-half (Hillary) who will take us right back to the hog trough of self-dealing, petty cover-ups and general venality that characterized her husband's eight years in office.

It depresses me that some folks on the left are so frightened by the idea of making common cause with the conservatively-minded in the name of good government that they'll reflexively scream heresy whenever one of us criticizes a Clinton. Even if I were to say I'd vote for Hillary in '08 over a clown like Mitt Romney (and BTW I voted for Bubba in '92) it still won't be enough to assuage your "he's from the dark side" suspicions.

When I used comment over at Ace of Spades I ran into the same hysteria from people on the far right who branded me a "leftist troll" for straying from their orthodoxies.

[rilkefan]

Here "jejune" itself might be the issue - it means empty or immature. Maybe "less polished" or "less coached" would have served your purpose better.

[Jesurgislac]

Redhand: that they'll reflexively scream heresy whenever one of us criticizes a Clinton.

Perhaps - I know it's just a crazy idea! - you could try making substantive criticisms of Hillary Clinton, based on fact, rather than repeating silly-ass Republican liefests and then claiming that criticism of your unsubstantive and reflexive Clintonhate is "screaming heresy". It's just a thought.

[Carleton Wu]

D'oh, perhaps because we're seeing history repeat itself in the current Clinton's campaign fundraising antics.

D'oh, what does that have to do with the original point of the thread?

Mentioning Clinton as I first did, and as Brett more vigorously followed up, doesn't mean that we are Malkin-like wingnuts "hijacking" the thread.

Yes, it does. This was a thread about the AG and the constitutional powers of the president. It had *nothing* to do with the Clintons- we weren't talking about Clinton, campaign fundraising, China, etc.
If you think that any discussion of politics is improved by introducing non sequitur Clinton-bashing, then you are indeed 'a Malkin-like wingnut hijacking the thread'. Indeed, I can't think of a better description of that behavior.

What I do find disturbing in any "leftist" reaction to mention of prior Clinton misdeeds is the "old news" mantra that their spinmeisters used to minimize their misdeeds 24 hours after they occurred.

That might have been an interesting point in 1998 or 1999. Today, it is actually old news, and dredging it up suggests- well, see above.
(using your pseudologic, threadjackings about Clinton will still be legitimate in 3007).

It depresses me that some folks on the left are so frightened by the idea of making common cause with the conservatively-minded in the name of good government that they'll reflexively scream heresy whenever one of us criticizes a Clinton.

Clinton did some stuff he oughtn't have (although, as Jes pointed out, he was much less dirty than Reagan or GHWB).
Oddly, pretty much everyone on the thread seems to agree with the first part of that statement- but you're still playing the martyr, claiming that you're being called a heretic for saying so.
You're being called a troll. It's not that your points are inaccurate or your facts mistaken- it's that they had nothing to do with the original point.

[rilkefan]

Incidentally, just a glance at e.g. Daily Kos is enough to show there's a great deal of animus towards HRC on the left, and probably most liberals here at best dislike her.

[Redhand]

FWIW in checking the thread you'll see I commented on the substance of the post in comment 5, and that Clinton's fundraising was first raised right after that, by someone else. If that qualifies me as a "troll" in your book so be it.

[rilkefan]

Redhand, you did start off substantively, but you then made a series of bald emphatic assertions (some amounting to charges of treason) the audience here was sure to find highly dubious and (after having heard the content before many times) plain tiresome. I wouldn't call it trolling, but it's not accommodating your approach to the local customs and beliefs either. We have frequent open threads here - if you feel like arguing the above anti-Clinton line, that might be a better context.

[liberal japonicus]

hattip to rf, I should have explained why I thought the word was inappropriate rather than assume it precisely represented Redhand's thoughts.

[rilkefan]

Thanks, lj.

Randomly, in Rilkekind news, he recognizes the "Jackal jumping" picture in his Sandra Boynton _A to Z_ book and turns the pages to get there and gives a little hop when he sees it and laughs and laughs. I'm beginning to be surprised the world population is only seven billion.

[Jesurgislac]

Rilke: Randomly, in Rilkekind news, he recognizes the "Jackal jumping" picture in his Sandra Boynton _A to Z_ book and turns the pages to get there and gives a little hop when he sees it and laughs and laughs.

Aw... cute! Thanks for sharing.

Redhand: What Rilkefan said at 05:59 PM.

[liberal japonicus]

Wait till rk gets to 3 and you'll wonder why the population hasn't become endangered. Of course, our first was no problem, but our second is having the terrible twosandthreesandgodwhatwerewethinking period. I said to my wife that I wondered how much their personalities would have been different if the 1st were second and the vice versa and my wife said are you kidding, if our second were first, there would have been no second...

[Brett Bellmore]

"That might have been an interesting point in 1998 or 1999. Today, it is actually old news,

Or would be, if the Democratic front runner weren't named "Clinton".

[Jesurgislac]

Brett: Or would be, if the Democratic front runner weren't named "Clinton".

Still is, because - as you might remember - like most of the scandals that the Republicans tried to whip up against Bill Clinton, it fizzled out into a "Yeah, one Chinese-American took money from the Chinese government, donated it to the Clinton campaign, and was convicted of it: and if we investigate too hard we'll find out that the same is true of Republican and Democratic candidates because our soft money system makes this easy for foreign governments, so let's quit looking before we have to reform soft money completely out of existence, mmmmkay?"

Old news is old news, Brett. There are substantive criticisms to be made of Hillary Clinton, as there are of all the candidates running for election: why waste your time, energy, and intelligence on the old Republican scandals that already failed against Bill Clinton?

[Jesurgislac]

why waste your time, energy, and intelligence on the old Republican scandals that already failed against Bill Clinton?

Indeed, that's the weirdest thing about the right-wing reflexive Clintonhate: these are strategies that (from their point of view) were a complete failure. Clinton was a popular President, he won handily twice, and left office on a high approval rate. The Republican attacks on him and attempts to whip up scandals against him doubtless did a bit in obstructing the work of government, but they didn't succeed in getting Clinton out of office, disgraced, or even unpopular.

Why, then, are the same people trying the same strategies against Hillary? If it didn't work once, try again?

[CharleyCarp]

attempts to whip up scandals against him doubtless did a bit in obstructing the work of government

I always enjoy hearing the same people complain about WJC's lack of initiative against the terra'ists.

[dutchmarbel]

I love my 3 kids, so I recognize the joy RF describes - as well as the practical limits LJ experiences.

It sadly reminds me of one of the blogposts of an Iraqi in Bagdhad for our National News Channel. He and his wife would like a baby, but they hesitate wether they should try for one in war-wrecked Iraq. Recommendations (almost all in English, for his sake, though the blog gets translated to Dutch) differ, but I just never realized that this is one more choice to make for a family in a warzone.

I was rather disappointed that Obama seems to go the gaybashing path (according to the news on Americablog). Is that honest conviction, shrewd political strategy, or the mistake of someone who is not yet experienced enough to make good political choices?

[dutchmarbel]

Oh, and I am also always suprised to see people claiming that Hillary's experience as first lady does not count because she wasn't responsible for anything, yet all policies they hated in those days are her responsibilities too.

[Model 62]

Why, then, are the same people trying the same strategies against Hillary? If it didn't work once, try again?

Certainly one of the goals of that strategy was to weaken WJC. Keeping the base engaged (enraged?) and the campaign dollars flowing was another. Groups need Others, especially those organized to win winner-take-all political contests.

I assume the strategy is still effective wrt to the latter goal. And after HRC is elected, I assume it will also still be effective wrt to the former.

[Gromit]

dutchmarbel: I was rather disappointed that Obama seems to go the gaybashing path (according to the news on Americablog). Is that honest conviction, shrewd political strategy, or the mistake of someone who is not yet experienced enough to make good political choices?

Is this anything more than guilt by association? Is Obama endorsing the man's beliefs, or just his music? Is Obama providing him any sort of platform for expressing his homophobia? All I can tell right now is that McClurkin will be singing on an Obama-organized tour with several other gospel singers. Is it not possible that it is McClurkin who is setting aside his differences with Obama's views to participate in this tour?

[Jesurgislac]

Gromit: Is it not possible that it is McClurkin who is setting aside his differences with Obama's views to participate in this tour?

Could be. Or maybe Obama has no differences with McClurkin. Or maybe McClurkin is planning to take the opportunity to come out and admit that the ex-gay movement is one of heartless cruelty and denial, that he is still gay and can't change the way God made him.

Or maybe he's just going to sing and avoid the issue of ex-gay entirely.

McClurkin is one of the victims of the ex-gay movement, and as such, I do believe there's always hope he'll turn around and realise that he doesn't have to believe in the kind of God that would make him gay purely for cruelty's sake.

[Jen Clark]

I'm curious how the conversation following an article about our possible Attorney General's refusal to obey the Constitution turned into a Bill/Hillary Clinton political conversation.

Anyway, here is one more very concerning quote made by Michael Mukasey during his confirmation hearing. He basically admits that if a rule (or law?) prohibits a warrant, he will change the rule:

MICHAEL MUKASEY: It bears some mention… that there are within the Department very elaborate procedures before anyone is permitted to subpoena a reporter. Some AUSA with a subpoena and a typewriter doesn’t decide whether to subpoena a reporter. There are many levels of approval that have to be gotten, in main Justice, not just the assistant’s own office before a subpoena can be issued to a reporter. It was my own view, and I obviously don’t know all of the cases, that the system worked passably well, up until now. But one thing about internal procedures is that if you need to change them, they are relatively easy to change. You can adjust the regulation, you can adjust the procedures, you can put more levels in, you could change standards. It’s relatively easy to do. It becomes much harder when it’s etched in stone, in the form of legislation, and that is part of the reason for my unease.

I'm not looking for perfection in the next AG, but this guy is Alberto Gonzales light. We need better than this.

[Sebastian Holsclaw]

"Id draw a significant distinction between arguments about the scope of the Commerce Clause and what's being done with the CIC powers- the former expands the power of the federal government, but does not itself threaten the democratic foundations of our system of governance."

You have to be pretty careful to get that sentence to be true. The republic set up against the power of the federal government is every bit as important as the 'democratic foundations' in terms of our system of gevernance. And the right to grow grain on your own farm might be considered relatively important as well.

This isn't to downplay the Bush craziness at all though. I just don't like seeing the dramatic change of the Commerce Clause hand-waving get turned into something other than one of the most enormous non-Civil-War changes in how our government worked/was supposed to work.

[bc]

Ara: Back to your question on the original thread: you should read Scalia's opinion in Hamdi. His dissent was more of a restriction on the executive than the plurality. If I remember correctly, he said that absent a congressional suspension of the right to Habeas (which it can do), the only choice the executive has is to try him criminally (e.g. for treason). The plurality came up with an extra-constitutional procedure.

Now, Thomas, of course, found the whole thing entirely acceptable under the Constitution. Congress passed the AUMF, had not revoked it, and thus the courts had defer to the broad grant of power under the Constitution AND congress' grant of power under the AUMF. Scalia might have come to the same conclusion if the AUMF had suspended habeas expressly.

Thus, there is no simple answer to your question of what the strict constructionists think about CinC powers with respect to the current situation.

As an "original intent" guy myself, I get stuck at the AUMF with Scalia. Even though the grant of power was broad ("use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11, 2001), it did not mention suspension of habeas and thus it should be available to citizens detained.

As for non-citizens, different story. So long as hostilities exist, Congress' broad grant of power plus the CinC powers seem to give the executive indefinite detention power. Congress could clear things up by restating/ retracting the AUMF or the Iraqi authorization or ending hostilities officially.

I think a lot of the discussions here give Congress a free pass. Congress is complicit in many of the complaints against the executive by not acting.

Similarly, most of the posts here ignore that the Founders expected the branches of government to fight over constitutionality. In the Mukasey quote above he is alluding to the executive's own power to determine what is constitutional. Marbury v. Madison did not end the right of the executive to make its own determinations. Arguably, it is not bound by a SC determination or congressional determination of constitutionality. Thus, ignoring a statute that impermissibly limits the constitutional authority of the executive in the executive's opinion is o.k. Congress can impeach if it doesn't like it.

[kid bitzer]

"Marbury v. Madison did not end the right of the executive to make its own determinations."

um, no. the authors of the constitution did, before the constitution was even ratified.

here's hamilton from federalist #78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

got that? "proper and peculiar"; that means it belongs to no other branch, whether legislative or executive.

it's a stronger standard than Marb. vs. Mad., and it was built into the constitution from the very start, by one of its authors, as an argument for ratification.

[bc]

kid: I already "got that." I was explaining the strict constructionalist argument, not necessarily my own However, Hamilton's argument does not end the debate. Even with judicial review, the executive arguably has the power, if not the duty, to refuse to execute a law it considers unconstitutional. Hamilton expressly notes that in Fed. No. 78, stating that the judiciary is dependent on the other two branches to enforce its judgments.

Please cite me the provision of the Constitution that explicitly states that the judicial branch is not co-equal and can in fact trump the other branches. Or did Hamilton forget to put it in there?

I don't think you can cite Fed 78 without citing Brutus' opposition. He argued for judicial supremacy. Fed. 78 is the response (no judicial supremacy). You, and many others, interpret it otherwise.

[russell]

Even with judicial review, the executive arguably has the power, if not the duty, to refuse to execute a law it considers unconstitutional.

There's a difference between "refuse to execute" and "break".

Thanks -

[kid bitzer]

no, i don't think i "interpret it otherwise".

brutus, writing some months before #78, argued that judicial review would lead to judicial supremacy; that if the SCOTUS had the final say on what is constitutional, then it would be more powerful than the legislature (and therefore ipso facto more powerful than the executive, since everyone involved in the debate agreed that the legislature would be more powerful than the executive. In Madison's words from #51, "In republican government, the legislative authority necessarily predominates." i.e., if the executive predominates, you no longer have a republican form of govt. but some form of monarchy).

hamilton's answer is to block the inference from judicial *review* to judicial *supremacy*. of course the SCOTUS should be the final authority on interpreting the constitution; interpreting laws is just what courts do, and what they alone are qualified to do. but--and here is his answer to brutus--the fact that they can do this does not make the judiciary more powerful than the legislature. it makes the *constitution* more powerful than the legislature, which is only right and fitting, since the constitution is the direct expression of the people's will, whereas a given piece of legislation is merely an indirect expression of the delegated will of the people.

so in arguing that the SCOTUS is the sole authority on constitutionality, i am not arguing for judicial supremacy, only judicial review. i am arguing for constitutional supremacy, and popular supremacy, not judicial supremacy--that's exactly hamilton's point in #78.

the executive is under oath to preserve, protect, and defend the constitution. however, the executive has no independent ability to interpret laws or constitutions. if the executive has any doubts about the constitutionality of a law passed by the legislature, it can hesitate over the law's execution only so long as is needed to call to its assistance the aid of the judiciary in clarifying the law's conformity to the constitution.

to suppose that the executive has an independent power to usurp the judicial function of interpreting laws is as absurd as to suppose that it can usurp the legislative function and simply make laws as it sees fit, too.

[Jesurgislac]

bc: As for non-citizens, different story. So long as hostilities exist, Congress' broad grant of power plus the CinC powers seem to give the executive indefinite detention power.

...which is why noncitizens should avoid visiting the US even temporarily so long as this state of things prevails. (Not that this will save us from being kidnapped outside the US and detained indefinitely, but visiting the US is just running head-on into a bad situation.)

(I'm planning to go to Montreal for the Worldcon in 2009. Normally I book online and do the cheapest possible route, but it occurred to me when looking up fares that "cheapest possible" has too much risk of being "via the US", so I think I'll go to a human travel agent and specify that my route should not include any US airport. I am not visiting a country which claims the right to arrest me and detain me indefinitely without any right of appeal.)

[liberal japonicus]

Jes, I think you can book online and specify your route. Also, the online page should, before you book, tell you if you are going thru the US. There's really no reason to go thru a human travel agent unless you just want to have another person know the reasons behind your choices.

[Jesurgislac]

Jes, I think you can book online and specify your route. Also, the online page should, before you book, tell you if you are going thru the US.

Not to go too offtopic, but actually the cheapest online sites - the ones much cheaper than using a travel agent - often don't.

[russell]

Nixon was fatally flawed in a way Clinton wasn't: Too corrupt to behave honestly, too honest to stubbornly hold onto power after getting found out.

Somehow I missed this the first time around.

Poor Dick Nixon. Undone by the fatal flaw of that last lingering scruple.

All I have to say is that this is one of the funniest things I've ever read.

Thanks -

[bc]

not that I would detain you, jesurgislac, just saying what the Constitutional parameters are in "times of war." BTW, what are YOUR country's limitations, if any?

[bc]

bitzer: What truly doesn't make sense is complete abdication of Constitutional responsibility by the other branches of government. Maybe we are talking semantics here. I am saying that the Constitution gives all three branches checks on the other's power (obvious point so far, I know). The main power is to stymie the other two. Gridlock is preferable to any one branch seizing the power of the other two. Any placement of all powers in one entity or person is tyranny, etc. etc.

While the judiciary may have the exclusive right to review the constitutionality of a law in the sense of making a "declaration" to that effect, I still think the executive has a right and duty to refuse to enforce a finding that it believes is in itself unconstitutional. This is and should be an extreme and unusual remedy. The normal course of events is to follow the judicial rulings. However, to say the judiciary has the final say no matter what literally imbues them with the tyranny the Founders were trying to avoid.

Take, for example, a finding by the judiciary that the War Powers Act was unconstitutional at a time the country was threatened by an imminent nuclear attack. The Pres could justifiably find that his powers as CinC and the authority granted him by the act permit just such a defense and ignore the judicial finding. The solution if the judiciary or Congress doesn't like it is to impeach. To find otherwise is to elevate SCOTUS-nine unelected individuals- to the ultimate trump card. This is judicial supremacy.

The politicization of SCOTUS is one sign of widespread belief in judicial supremacy. People fear an executive that willy nilly refuses to follow the findings of the judiciary or the laws of Congress. There is a Constitutional solution for that. And it should be used if an executive tends that direction.

Here, with all the discussion regarding the current Executive, there is not a lot of talk about what Congress is doing. With the AUMF and the Iraqi War Resolution in place Congress has given express approval to the President's actions in many instances. If Congress revoked the acts or refused to fund current activities we would be in a different place. To Bush's credit (cringing at daggers flying my way) he has followed judicial rulings that he may have thought not quite right. However, he has not, as you say, run to court to see if what he wants to do is consitutional. I don't think that is constitutionally required.

I am not endorsing all of the President's policies in saying this. I just don't think he needs to run to SCOTUS for permission. If he is obviously and knowingly stepping across the line (and not just in a gray area) he should be stopped just as the Constitution permits.

You believe, I think, that the ultimate will of the people as expressed in the Constitution requires the "constitutionality" findings of SCOTUS to be followed by all branches regardless. I think the will of the people as expressed in the Constitution requires no such abdication of a branches "check and balance" function although as a regular rule the rulings will be followed. Only by retaining independent judgment with respect to its own Constitutional rights and responsibilities do the checks and balances have any meaning.

That is not to say the executive could go around declarating certain laws unconstitutional and issuing opinions That would cross the line. Refusing to follow a finding that is manifestly wrong is entirely another thing.

[John Snape]

I wasn't trying to hijack the thread, and I would have put it in the comments on a story about the fundraising if someone would have posted one.

My whole point is: why elect someone that would guarantee 8 years of constant hearings and court cases and all the sh** that comes with it? I'd prefer Obama or Edwards or even Al Franken (at least he'd bring some humor to this drudgery!) to Hillary as the nominee. It's like the guy who keeps hitting himself in the head with a hammer, and wonders why he's got a headache.

Anyway, anyone else here in San Diego county, stay safe! Luckily, the fires went around my house and I still have a place to live! I offer condolences to those who lost their home.