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September 29, 2010

Comments

Yes, this part of Obama's record is unquestionably awful.

How in the world does one reverse the trend? Congress would seem to have the power (at least theoretically).

This is unquestionably one of the Obama administration's biggest failures. We should be trying the Bush administration in court, not trying to out-do them.

I'm not sure there's much practical difference between being able to abduct and torture someone and hold them however long you want without any evidence or due processes, versus just outright killing them.

Dammit, Sebastian, sometimes even when you're Right, you're right!

This is sorry stuff.

How do you mean "able?" in "able to abduct and torture?" "Able" under the law? The difference would, ostensibly, be the legal penalty that we could impose upon people who do extrajudicial murder, if we ever found out about it. I guess that you mean in practical terms this won't matter because no one will find out?

Good post Seb!

Agreed, Sebastian.

But ...

"... we can't trust the government to always identify the right person."

Yeah, no kidding (MacTexas, notice the lack of gummint worship here). That sentence suggests there is some entity you might trust to identify the right person. Further, if we could identify the right person for either torture or murder, then it would be O.K.?

I condemn Barack Obama and his Administration for this policy.

Someone run out and find me a leader who will neither assassinate whomever they please nor deny or rescind health insurance to American citizens who need it.

I mean, do I have to get myself on the assassination list to restore sanity?

But that power is certainly not "too harsh" for the kind-hearted Constitutional Scholar we elected as President, nor for his hordes of all-justifying supporters soon to place themselves to the right of David Rivkin as they explain why this is all perfectly justified.(emphasis mine)

Who are these people?

Julian: I mean that being able to "disappear" someone without trial and hold them forever and ever is in many practical ways much the same as killing them.

Especially in that both are completely unquestionably wrong, and not the sort of powers the government, or anyone, should have.

What Sebastian said.

Agree 100% with Seb here. The real thesis of the post is the title. The US presidency is much more characterized by continuity than many partisans prefer to think it is. That means that the Bush administration gets blame for what's being continued and extended.

But that doesn't at all let Obama and his administration off the hook. They are responsible for what they do, mostly Obama himself. I don't see any reason to trust in the good faith of Rivkin, who didn't object to any unconstitutional Executive power grabs when Bush was president, and I suspect wouldn't object to this one if his preferred president was making it - it's absurd to decide that it's ok to abrogate parts of the Bill of Rights, so long as you don't go 'too far'. Kinda pregnant, anyone?

But whatever his motivations, he and Greenwald (and Sebastian!) are not wrong in condemning this. Barring the unlikely event of, say, a tight race between Obama and Palin, Obama has irrevocably lost my vote.

"We can't trust the government to identify the right person."
There's a reason 'evidence' obtained by torture is inadmissable in court. That is simply because people being brutalized and terrorized will 'confess' to anything to get it to stop.
Calling torture 'interrogation' is a '24' or Bu$h lie discussed ad nauseam in Political Animal at Washington Monthly for years. I even cited notes from exMI ( Somebody Should Care, Maybe Not You... ) on Blogger on how professional interrogation is carried out ( he is a trained Instructor ).
Congress ? They were intimidated and/or bought years ago.
http://www.amicc.org/usinfo/administration_policy_BIAs.html
Military Commissions Act of 2006
http://www.aclu.org/national-security/military-commissions-act-2006
American Servicemember's Protection Act
http://www.globalsolutions.org/issues/bia_resource_center/ASPA


Remember, the point in the national security state is to be able to avoid blame for allowing the next terrorist attack. If that means assassinating American citizens without due process or judicial or congressional oversight, so be it (and in some cases "yee-ha!").

Along these lines, there seems to be a remarkable lack of self-awareness among senior U.S. officials in this NYTimes article:

The Obama administration on Wednesday placed eight Iranian officials on a U.S. financial blacklist, saying they were responsible for beatings, killings and torture following Iran's disputed presidential election last year.
...
"On these officials' watch or under their command, Iranian citizens have been arbitrarily arrested, beaten, tortured, raped, blackmailed and killed," Clinton said. "Yet the Iranian government has ignored repeated calls from the international community to end these abuses." ...
The administration said that forces under Jafari's command participated in beatings, murder and arbitrary arrests of peaceful protesters in the aftermath of the June 2009 Iranian election.

One awaits the imposition of sanctions by Treasury and State upon, say, current and former Obama and Bush administration officials, the heads of the police forces in the cities that held the 2004 and 2008 GOP and Democratic national conventions, among, well, thousands of other government officials inside the United States.

Beatings! Torture! Murder! Arbitrary arrest! For shame, Iranian officials! For shame!

And:

"The United States will always stand with those in Iran who aspire to have their voices heard," a White House statement said. "We will be a voice for those aspirations that are universal, and we continue to call upon the Iranian government to respect the rights of its people."

Someone from the DOJ should tell the Iranians about the state secrets doctrine.

IOKIYAA

eye-OKEE-YA!

It's OK if you're an American....our exceptionalism is fast approaching its apogee.

Thank you, Seb.

Good post, Seb.

I'm not sure what to do. The system doesn't work on issues where the two parties are both heinous. You can vote third party, but people upset by this wouldn't even agree on which third party candidate to vote for.

I'm pretty sure Abraham Lincoln asserted the power to kill American citizens without due process of law. Around 100,000 American citizens, in fact

Damned Republicans!

Hank, which hundred thousand are you talking about? Civil War deaths? That count is much higher than one hundred thousand, according to my googles:

http://www.civilwarhome.com/casualties.htm

When you say American citizens, are you referring to nonSecessionists? Your post is so glib that I can't actually tell what you meant by it.

93,000 Confederate soldiers wiped out by their future political party, though I think their names are still on the voting rolls in a good many red states.

There were something over 100,000 Union soldiers butchered by the Southern Democrats, who began joining the Republican Party in the middle of the 20th century. If you can't kill the Republican Party and the Union from without, join it and kill them both from within.

Over 600,000 Americans bought the farm in America's initial Civil War.

Over 600,000 Americans bought the farm in America's initial Civil War.

The part of Bob McManus will now be played by Countme?. I think he's in the running for the "Best Revival" Tony.

I'm not sure there's much practical difference between being able to abduct and torture someone and hold them however long you want without any evidence or due processes, versus just outright killing them.

A subsequent clarification explained that "able" was meant in terms of ethical and moral culpability.

As a practical matter, many times we are launching Predator drones at people we would love to capture and interrogate, but can't. Which means that one importance difference between assassination and rendition/disappearance is that people can protect themselves against rendition.

One of the things that drives me crazy about this issue is that both sides should be strongly against it, for various reasons that are allegedly very important to their ideology--but in reality neither side seems to care very deeply about it.

Conservatives should hate it because they don't trust the government to do anything right, so why in the world should they trust it to get this right?

Liberals should hate it for the typical civil rights reasons.

Everyone should hate it because we just lived through Bush, and how in the world could we trust a president even half as bad as Bush with this unreviewable assassination power?

But instead we get tepid responses from Republicans, presumably because it fits with some hyper-masculine anti-terrorist image of themselves. And we get tepid responses from Democrats, presumably because Obama is 'their' man in office.

Argh.

"This is unquestionably one of the Obama administration's biggest failures. We should be trying the Bush administration in court, not trying to out-do them."

Look, Obama prosecuting Bush is absolutely inadmissible, for the simplest of reasons: It implies that Obama could later be prosecuted. And, what is there that you could prosecute Bush for, that Obama hasn't done?

Even if Obama hadn't done everything Bush is arguably guilty of, Obama would be a fool to even marginally lower the barriers preventing administrations from prosecuting their predecessors. Because even if he weren't committing the same sins, he's hardly the stuff of sainthood. Like most politicians, he's merely a high functioning sociopath. That he was going to commit acts he could legitimately be prosecuted for was a given, that he'd commit acts a prosecutor of the opposing party would regard as criminal was a complete no-brainer.

Bush will never be prosecuted, it's Obama's own hide on the line.

neither side seems to care very deeply about it.

Who do you mean? Everyone here seems to care pretty deeply about it, right? Or are you talking only about elected officials?

Clearly Obama wasn't kidding when he said we shouldn't be looking backwards when talking about prosecuting members of the Bush Administration. Apparently he was preemptively covering his own ass.

I'm writing in my own name in 2012.

There are three options here, 1) what Obama has done, 2) to create some system of trials in abstentia that would, even if the best efforts were made (and I don't think they would be), look like the Stalinist show trials, or 3) to just not say anything and they take some sort of ad hoc action if things get too bad. Obama, being the technocrat that he is, feels that creating a process allows it to be managed and this is preferable to the other options, because the 2nd option creates such an opportunity for drama and bad publicity and we've seen how singularly unsuccessful the latter option is (not in terms of existential threats to the US, but in terms of electoral politics). As Jon Stewart said, Obama ran as a visionary, but governs like a functionary. This seems to be evidence of that.

And, what is there that you could prosecute Bush for, that Obama hasn't done?

Starting an unprovoked war of aggression.

Obama is guilty of a bunch of war crimes and crimes against humanity, but nothing he has done compares to what Bush did. Obama has the blood of hundreds or thousands on his hands, but Bush has the blood of a million people on his hands. Much as I hate Obama's criminally murderous policies, I don't think Obama's willingness to assassinate US citizens should be used as an opportunity to hide the obscenity of the Bush administration in false equivalences.

Like most politicians, he's merely a high functioning sociopath.

Brett Bellmore, noted psychologist, ladies and gentlemen. Who, by the way, doesn't believe in questioning people's motivations and characters, just their policies. At least when he's the one under scrutiny.

"Starting an unprovoked war of aggression."

I'm unclear as to how this violates US law, when authorized by Congress. Maybe it violates international 'law', but a US administration prosecuting it's predecessor for violating international 'law' with the approval of Congress is even less likely than a prosecution for violating US law.

Brett: Now, maybe. Back when he first got elected, he hadn't done any of it, yet. And since the Tea Partiers and you would have liked him just as much if he'd prosecuted the Bush war criminals, there was no reason not to then, either.

Frankly, I don't care who'd get caught up in that kind of investigation, America was founded on principles and values, at least in theory, and we have to uphold those values if we want to be able to call ourselves Americans in any real sense.

I mean mostly elected officials, high level unelected types in both parties, members of the media on all sides, etc.

I mostly agree with Brett, for once, but then this issue is the one area where I do tend to agree with him. "High functioning sociopath" is over the top, I suppose, but I do wonder about the sort of person who makes it into the Presidency and can say and do the sorts of things that Presidents do. Maybe it's not sociopathy, since they can be fine people in their private lives (sometimes) and once they are out of office (sometimes) but a very deep level of denial that comes over people when they have that much power. The fact that they want that much power is more cause for suspicion.

Having debated him before, I genuinely didn't think it was possible for any President to concoct an assertion of executive power and secrecy that would be excessive and alarming to David Rivkin

No Republican president, anyway. I doubt this would be excessive or alarming to Rivkin if done by President McCain. It's amazing how many people who supported Bush's right to arrest any American and hold him incommunicado for an indefinite period while torturing him have suddenly discovered the Constitution.

I'm unclear as to how this violates US law, when authorized by Congress. Maybe it violates international 'law', but a US administration prosecuting it's predecessor for violating international 'law' with the approval of Congress is even less likely than a prosecution for violating US law.

Since I feel like tilting at windmills, I will remind Brett that if international 'law' needs scare quotes, so does US 'law'. Last time I checked random Congressional rubber stamps weren't the supreme law of the land, unlike, say, signed and ratified treaties...

To extend, I think, what liberal japonicus is saying here, it seems that there is a question here of how to handle this particular situation other than how Obama and his people have decided to proceed.

I don't know the answer myself but, at least from my layman's perspective, it seems like a pretty complex and somewhat unique situation. As I understand it, the US citizen "target" in question is outside U.S. jurisdiction and, according to authorities, is engaged in acts of terrorism. If he could be arrested, than these charges could be brought in a court of law in a way that protected the intelligence that the government says it has and that option remains open. However, the likelihood of arrest in this circumstance is quite slim and, again according to the government, the threat is ongoing. So, assuming for the moment that the intelligence is real and correct and that Awlaki is indeed a terrorist but also an American citizen, then how should the government proceed, other than what they have proposed? It would seem to me that lj's other 2 options (1. trial in absentia 2. do nothing) are the only options available but again, I am way out of my depth here. So I am asking seriously, assuming that the Govt is being honest in their assessment of Awlaki, what should they do about him, other than what they have chosen to do?

envy,

Thanks, yes.

However, the rubber-stamp is actually a law, and therefore also the supreme law of the land.

Really, the conflict is best resolved by some other country kidnapping Bush rendering Bush extraordinarily (and much of his administration, and much of the 2002 congress) and trying them for war crimes elsewhere, as the war crime of authorizing a criminal war does not render the subsequent war crime of starting a criminal war no longer a crime.

brent,

Post an armed drone over him. Order him to surrender to the local authorities. Point local authorities at him. Shoot him if he resists arrest.

If you can assassinate someone, you can order someone to surrender.

Personally, I'm not entirely clear on why most people seem to be more okay with assassinating non-citizens than with assassinating citizens.

"Personally, I'm not entirely clear on why most people seem to be more okay with assassinating non-citizens than with assassinating citizens."

I think it's pretty obvious why citizens of any given country are more ok with their own government killing citizens of other countries, than with it killing their fellow citizens. It means they're less likely to be on the target list.

Liberals should hate it for the typical civil rights reasons.

I'd have said lack of due process, which I don't think of as a civil rights issue because I tend to take it for granted when due process holds, which I think is mostly. Which is not to say that mostly should be settled for.

As opposed to an opposition to death penalty because it violates civil rights, which is almost an entirely different conversation.

The due-process objection is one both conservatives and liberals should agree on.

That aside, I don't think many would have objected if it were, for instance, OBL who had gotten remotely prosecuted. It'd be the same kind of tried-in-absentia thing, but maybe the evidence is more compelling in his case.

My thinking on this is less than clear. More coffee might help.

Have you seen what passes for due process. Check with the IRS or someone who has had a car or house seized.

So, your argument is that due process mostly doesn't hold in the US?

Post an armed drone over him. Order him to surrender to the local authorities. Point local authorities at him. Shoot him if he resists arrest.

I am not sure how that is different than what they are doing. That is, the government has taken on the authority to capture or kill Awlaki with the understanding that capture would be preferable but may not be possible under the circumstances. The Awlaki family and those arguing against this position are saying that the government lacks the authority to kill him if they are unable to arrest him.

I agree 99% with Sebastian's post. (my only difference: I would never grant his "Fourth".) I also think he's 110% right in his comment at 6:42:

But instead we get tepid responses from Republicans, presumably because it fits with some hyper-masculine anti-terrorist image of themselves. And we get tepid responses from Democrats, presumably because Obama is 'their' man in office.

I really, *really* don't understand what the heck happened. Was the US always this way, and I was too naive to notice? Or did something change in the past few decades?

I don't mean to argue anything. It seems to me that due process is whatever the current administration wants it to be. We have returned to a time when the sovereign does as it damn well pleases. The government can do no wrong.
We have seen this with property, liberty (you know not in jail), and now life. I think that about covers it all.

It seems to me that due process is whatever the current administration wants it to be.

To some extent, yes. But I was speaking in a much larger sense, the bulk of which the administration doesn't even notice, including state and local law enforcement.

Which is not to say they're perfect, or even nearly perfect; just that in day to day operations, due process is followed more often than not. This is just an opinion, though, and might not be supported by the facts.

But I wasn't arguing with you; just asking exactly what you meant by your comment.

" It's not as though, say, the health care reform made it any more likely that the president would attempt to claim the power of assassination."

But, yes, it does.

Dr. S., I think what changed is that the two political parties have gotten more homogeneous. Half a century ago, the Democrats included both northeastern liberals and southern conservatives. The Republicans included both the liberally inclined rich, the more conservative lower middle class, and the libertarian-inclined westerners.

Today, anyone who doesn't fit one of two pretty narrow molds (admittedly narrower for Republicans than for Democrats at the moment) ends up as Independents -- with minimal or no representation in Congress. The narrowing of the two parties isn't complete yet. But from the shrinking numbers of Blue Dog Democrats, not to mention the experience in the latest primaries of even vaguely centerist Republicans, it is definitely moving right along.

As for when it happened, I think it's a bit too gradual to put an exact start date. But I would say that the biggest single step was Nixon's Southern Strategy of co-opting the Democrat's biggest conservative faction.

But, yes, it does.

How?

Also: Did Massachussett's similar law make it likely that the Gov of Mass would have assassination power?

But, yes, it does.

Crap! I hadn't considered that. Oh, well. Never mind.

"I don't know the answer myself but, at least from my layman's perspective, it seems like a pretty complex and somewhat unique situation. As I understand it, the US citizen "target" in question is outside U.S. jurisdiction and, according to authorities, is engaged in acts of terrorism."

Even if everything Obama's administration says about the case is true--which considering the CIA's record I think we should be loathe to believe--we can't know that it is true because they are hiding everything behind the state secrets doctrine. We also don't know what legal limits *if any* are put on the assassination-of-citizens program because Obama asserts that the legal underpinnings of the program are state secrets.

Exactly!

If there's no legal review, how do we know what the limits are?

In the present example, the court is prevented from even hearing the case. So, what prevents abuse? Can't be the court, can it?

I am a strong proponent of having actual state secrets that have state-backed protection, with teeth. But I'm also a strong proponent of having clear criteria for what is classified and what is not, and of having independent (judicial, even) review of whether information classification is being done consistently with the criteria.

In the end state, without some kind of disinterested sanity checking, absolutely everything can be a state secret for the convenience of the government, and so (for example) exculpatory evidence might all be inadmissible because of the state-secrets thing, but inculpatory evidence might magically all be admissible.

"But, yes, it does.

How?"

The continued concentration of power at the Federal level, along with the continued concentration of power in the Executive branch, along with the continued ineefectiveness of Congress remove all of the checks and balances from the system.

This leaves the judiciary to try to walk the line between regularly supporting the additional powers of the Federal goverrnment while trying to limit (ineffectively) the transition to the imperial Presidency.

So, yes, every time we take a check out of the systems it ultimately emboldens the President (whichever one) to continue to feel untouchable.

But then, this is either philosophy or sociology so I can't give you a quick cite.

But for those worried about a ruling aristocracy this should be worrisome.

"But, yes it does."

Hitler provided preventive delousing and free EuroRail passes and look what happened.

Stalin mandated free enemas in the Ukraine and then the sh*t hit the fan.

Pol Pot opened optometry clinics in Cambodia (progressive lenses at cost, two pair of frames for the price of one), but the follow-up exams proved fatal.

Jeffery Dahmer followed the food pyramid's instructions regarding lean meat.

Charles Manson and his cute nursing crew made housecalls but couldn't stop the hemorrahaging.

James Earle Ray thought he'd found the silver bullet to cure the Nation's racial indigestion. Only J. Edgar Hoover and Strom Thurmond felt better.

I can't decide which assassination list I want to be on -- the one for terrorists or the one for Americans with pre-existing conditions.


To extend, I think, what liberal japonicus is saying here, it seems that there is a question here of how to handle this particular situation other than how Obama and his people have decided to proceed.

No doubt.

And there is a process for sorting out what can and cannot lawfully be done.

When the executive asserts "state secrets", that process is short circuited.

There is lots of information that reasonable people can agree ought not be made public. That's what "in camera" is for.

States secrets is a crappy doctrine, with crappy mendacious origins and a crappy history of lies and abuse.

It undermines the credibility of government, and of the actions it is used to justify and permit.

But, yes, it does.

You'll forgive me, but this seems like kind of the Hail Mary pass of arguments against HCR.

Could you possibly explain how one leads to the other?
You

The continued concentration of power at the Federal level, along with the continued concentration of power in the Executive branch, along with the continued ineefectiveness of Congress remove all of the checks and balances from the system.

While this is true, the connection to HCR is, as they say, weak sauce indeed.

HCR was passed by the Senate and House, and signed into law by the White House.

It did not create any additional Executive power. Nor does it correlate in any way to civil liberties.

For example, there is no historical incidence of correlation between states that implemented national health insurance mandates also eroding civil liberties. Even states that went further, and actually offered national health insurance.

So, yes, every time we take a check out of the systems it ultimately emboldens the President (whichever one) to continue to feel untouchable.

But HCR didn't take a check out of the system. Thus, this doesn't make sense.

But HCR didn't take a check out of the system. Thus, this doesn't make sense.

But, yes, it does. (I like this argument. It works for everything. You can replace "yes" with "no" and "does" with "doesn't" as needed. It's invincible.)

Germany will make its last World War I reparations payment. As a result, the KKK, various Nazi remnants in the world, and al Qaeda suspended their joint "Burn A Jew For Fun" celebrations to hold an emergency plenary session to come up with fresh scapegoats.

Word is they're calling in Republican consultants for ideas.

Even if everything Obama's administration says about the case is true--which considering the CIA's record I think we should be loathe to believe--we can't know that it is true because they are hiding everything behind the state secrets doctrine.

I agree that that is the problem. What I am wondering about is the solution. That is, Awlaki is not available to be tried and no court can answer the question of whether he can be killed absent such a trial. If they were seeking a run of the mill arrest warrant then there is obviously a context in which this evidence could be presented in a secret court. But that isn't the case here. According to what the government claims, this individual is dangerous enough that they will take the opportunity to kill if they cannot capture him just as they would any foreign terrorist.

Now, I absolutely agree that we as citizens should be very skeptical of this secret evidence but my question is: if the situation with Awlaki is what the government says it is, then how do they best proceed? Again, I have very limited knowledge in this area, but it seems that the two options of either trial in absentia or doing nothing, are the two obvious paths to follow other than what they are doing and both are fraught with their own difficulties. Are there other options?

Just to clarify, I am not arguing in favor of the government's position here. My immediate reaction upon hearing it was that it seemed morally repugnant to me. But I am just trying to gain some understanding of what options they have and why they have specifically chosen this one.

Trial en absentia is definitely an option, but some things should take place first.

The US Govt should immediately cease the practices of: Rendition of SUSPECTS to countries that torture, indefinite detention of SUSPECTS without trial, and the use of dubiously legal "military commissions" to try SUSPECTS.

Otherwise, the accused has too good a reason to avoid capture, thus making any proceeding in absentia of dubious merit.

Even the case for assassination is made stronger when the accused lacks those very good reasons to avoid capture/refuse to turn himself in to face charges.

After all, if there is 0 guarantee that he will avoid being tortured brutally, indefinitely detained without a trial or put before a sham commission (that have, thus far, failed to pass Constitutional muster), then his reluctance is understandable.

Yes, but what about those free government-provided flu shots that led to the practice of rendition?

But, hsh and Eric, it did move control of a long established bureaucracy from the state to the Federal level. It is in the little changes that centralize power more that the check on the Federal government by the states has, and continues to be, slowly eroded.

It isn't the last straw or a bold paradigm shift or certainly the end of the world as we know it, but it is a part of the slow erosion of one the essential checks and balances in our system.

There are more than a few states AG's that agree.

But Marty, you can find state AGs on either side of almost any issue. (Except, possibly, the need to expand the AG's department.) Even down to whether they have a duty to defend state laws that they personally disagree with. (Case in point: California this past summer regarding same-sex marriage.) So saying that some state AGs take a particular position is not really all that strong an argument.

it did move control of a long established bureaucracy from the state to the Federal level

What bureaucracy was that?

There are more than a few states AG's that agree.

For purely partisan reasons. Their legal reasonaing is nill, their chances of succeeding on the merits even less so, and I don't recall any of them complaining about Bush's Medicare Part D or, much much much worse, illegal wiretapping, torture, indefinite detention without trial/suspension of habeas corpuse, etc.

Come on Marty, you gotta do better than pointing to Republican AGs acting in a hyporcritical manner as evidence.

It is in the little changes that centralize power more that the check on the Federal government by the states has, and continues to be, slowly eroded.

I can follow the argument that powers that aren't expressly given to the feds devolve to the states. I don't agree with all of the conclusions folks draw from that, but I can follow the argument.

I'm a little less clear on the "states are a check on the Federal government" idea.

Where are you getting that from?

But, hsh and Eric, it did move control of a long established bureaucracy from the state to the Federal level.

Even so, that bureaucracy has nothing to do with the power to assassinate. That's the point. You're telling me what I've already acknowledged and accounted for in formulating my argument, which makes doing so irrelevant to the argument. You're arguing against HCR in general based on your distain for centralized power at the federal level, which is fine, but has nothing to do with the potential for abuses of power wholly unconnected to HCR.

Adding, that the Republican AG argument, if in line with you, would be:

1. If we allow the Fed govt to get involved with health insurance (apparently, moreso than Medicare, Medicaid, the VA and all federal employee insurance), then the federal government will be more powerful which could one day lead to abuses such as assassination, torture, indef detentin, etc.

2. Thus, it is more important that we block Obama's HCR than address the myriad examples of the Bush and Obama admin examples of actual abuses such as assassination, torture, indef detentin, etc.

Because if we don't stop HCR, what already is happening might someday happen.

hsh, ok

Eric, I am sure I didn't say it was MORE important.

Not you Marty, and I didn't mean to imply it. I'm pretty sure I know where you stand on this, and it's with the angels.

My beef is with the Republican AGs who, all of a sudden, have caught a case of the Constitutional Limits on the Federal Government/Executive Branch.

Too little, too late, and largely beside the point.

Which is a good indication that it's a partisan farce rather than a principled argument.

Historically the greatest expansions of unaccountable executive power (which is where this discussion started) has come about during wartime (or in some cases "war"time), where the justification was some physical or existential threat. What that has to do with extensions of other kinds of federal activity, decided in ways that do provide accountability, I don't see.

Very good point Hogan.

It's not so much a health insurance exchange/personal mandate, as much as war that provides the impetus/lubricant.

hsh, ok

Well, um, hmmm ... I'm not sure how to handle this. Is the internet broken or something?

(Tricky one, that Marty. What's his angle?)

I actually do think the AGs have a point about Health Care Reform in a limited sense. It seems to be a relatively large extension of federal power even beyond the commerce clause that the government can now force you to buy a product from a third party. That strikes me as a stretch even for the (in my view) already unconstitutionally ridiculous interpretations of the commerce clause.

I also think there is something to Marty's idea, though I'm not sure health care is one of the best examples. The police powers have historically been held by the states for the most part. Over the last 50 years or so they have been increasingly centralized in the federal government (see the increasing federalization of local crimes). This increased power over our persons used to be checked by the fact that it was fragmented.

...the government can now force you to buy a product from a third party.

Force you, you say?

It seems to be a relatively large extension of federal power even beyond the commerce clause that the government can now force you to buy a product from a third party.

Right, they can't and don't force anyone to buy anything.

Just as they don't force me to get married, even if they offer me a deduction on taxes if I do.

Or, they don't force me to work while in college, but give me a credit if I do.

Or force me to buy a house, but give me a deduction if I do.

The police powers have historically been held by the states for the most part. Over the last 50 years or so they have been increasingly centralized in the federal government (see the increasing federalization of local crimes).

Not that I disagree with the essence of this, but it seems to support Hogan's point: WWII and the Cold War/Vietnam/Korea giving rise to federal law enforcement/intel (and increasing scope and power of each).

I mean, it wasn't because FDR passed Social Security that we got the FBI/CIA in their current incarnations.

Back in the day, assassination was left to the States and in some cases local municipalities.

Individual initiative was rewarded. Best practices and ideas could percolate upward rather than being imposed from above. Local charitable organizations like the Mafia could provide assassination to those who needed it but couldn't afford it.

In the 19th century, John Wilkes Booth and his co-conspirators, for example, were able to cross state lines to carry out their grassroots effort, which made death more efficient and accessible for the victims.

Dallas, L.A. and Memphis come to mind in the last century.

It's only when the heavy hand of the Federal Government entered the picture that we began to suffer from European-style limits. The assassination of Archduke Franz Ferdinand was a turning point in centralized statist power, not to mention band names.

The Federal Government, with its extensive bureaucracy and regulation, has brought assassination to a virtual halt or moved it overseas. It's just worth the trouble any longer.

Why, I have business associates who tell me that their accountants have counseled that they reduce their private assassination staff

Plus, liberals with no business experience, like Squeaky Fromme and the well-meaning but incompetent fellow who shot George Wallace, end of botching the job.

The police powers have historically been held by the states for the most part. Over the last 50 years or so they have been increasingly centralized in the federal government (see the increasing federalization of local crimes). This increased power over our persons used to be checked by the fact that it was fragmented.

Would also add that, regardless, local police power/force structure has been increasingly expanding/militarizing - with SWAT teams cropping up all over and being used in a broad range of settings (unncessarily).

And I don't know how that plays into the federalization issue.

It isn't just a tax deduction. It is a penalty for failing to buy health insurance. It was even called that in most versions of the bill. And it is specifically levied if you don't buy health insurance fitting the long specific definition. That isn't like the house deduction at all. The house deduction offers relief from general taxes. It doesn't create an on-top-of-general-taxes penalty and then exempt you from it. (And this whole thing illustrates why social engineering through the tax code is bad).

If Congress created a tax for 100% of your income unless you bought an Ipod, in which case you would be exempt from that tax, you would recognize that as a penalty, right?

If Congress created a tax for 50% of your income unless you bought an Ipod, in which case you would be exempt from that tax, you would recognize that as a penalty, right?

If we let Congress get around Constitutional limits by couching penalties as taxes, there aren't any effective limits. This isn't even like the speed limit cases, where Congress refuses to provide highway funding unless you comply. This really is a brand new extension of power.

Not that I disagree with the essence of this, but it seems to support Hogan's point: WWII and the Cold War/Vietnam/Korea giving rise to federal law enforcement/intel (and increasing scope and power of each).

Also the "Wars" on Drugs and Terror. Clinton signed a major expansion of the death penalty for federal crimes called the Anti-Terror and Effective Death Penalty Act. The militarization of local police forces has had a lot to do with drug enforcement.

It seems to be a relatively large extension of federal power even beyond the commerce clause that the government can now force you to buy a product from a third party.

More of an extension than a federal minimum wage?

It's not so much a health insurance exchange/personal mandate, as much as war that provides the impetus/lubricant.

Just to throw some gasoline on an already heated discussion: what does it say about me that my first scan of the above had the words "personal" and "lubricant" jump out at me, in that order?

Discuss.

Quite a bit more. While I think Wickard v. Filburn was wrongly decided (you have to squint really hard to get interstate commerce out of growing your own wheat on your own farm to feed your own chickens so you can eat them later), the federal minimum wage is easier than the Wickard case itself. (At least both involve doing things that you were doing anyway.) HCR goes beyond that to making you buy something that you might not be buying otherwise.

More of an extension than a federal minimum wage?

If you view individual people as having more in the way of civil rights than corporations: yes.

(And this whole thing illustrates why social engineering through the tax code is bad)

How so? There may be examples of it being bad, but there are examples of bad music and literature, too. That doesn't make me want to stop listening to music or reading books.

In the case of the insurance penalty (I have no problem calling it that), it's necessary for the prohibitions against exlusions for pre-existing conditions and rescission to work without ruining private insurance. How is it "bad" from a practical standpoint, leaving aside for the moment pure principle on the constitutionality of it?

If you view individual people as having more in the way of civil rights than corporations: yes.

I think the distinction you're looking for is "employers/employees," not "corporations/individuals."

Discuss.

Maybe you've been reading about this.

@Charles S:
However, the rubber-stamp is actually a law, and therefore also the supreme law of the land.

Congressional laws are not possessed of the same legal stature as the Constitution. They may be the law of the land, but they're not perforce the supreme law of the land.

"(Tricky one, that Marty. What's his angle?)"

I find that when you tell me that my point is not relevant to what you are arguing then, well, ok. I didn't say it was a key point, just that your statement wasn't accurate.

Besides, if you can randomly assert this is true:

" It's not as though, say, the health care reform made it any more likely that the president would attempt to claim the power of assassination."

I figured I could randomly assert it isn't, just on the basis of overall ongoing consolidation of Federal powers and President Obama feeling his oats.

Seb, I'm with you on the substance of your post. Extra-judicial killing is an outrage.

But a "penalty" for not buying health insurance? Meh.

First, Obama is not usurping power in the HCR case. Sure, you see Congress as having usurped power by making you buy something like health insurance. But tell me this: would it be unconstitutional for Congress and the President to create a national healthcare system along British lines?

Never mind whether it's a good idea or not; never mind whether you'd like it or not; never mind whether it could ever happen or not. Just suppose that Congress passes and the President signs a law that creates a nationwide system of hospitals and clinics staffed by government-salaried doctors and nurses that provides health care to all comers; and suppose it pays for this by levying a tax on all Americans, since any one of them can use the system's services at any time. Would that be unconstitutional?

Would it be different, constitutionally, from a public library system, or a public highway system? Would the system, but not the tax to pay for it, pass constitutional muster? Would you argue that you're being unconstitutionally forced to buy something you personally don't want?

--TP

A health care system a la the UK would be a horrible idea, but probably constitutional. But that is far enough afield that I'd prefer to discuss it in another thread.

That isn't like the house deduction at all. The house deduction offers relief from general taxes.

So if it were in the form of an overall income tax increase with a credit for people who purchase health insurance, that wouldn't be a problem? Even though the effects are exactly the same?

"(Tricky one, that Marty. What's his angle?)"

I find that when you tell me that my point is not relevant to what you are arguing then, well, ok. I didn't say it was a key point, just that your statement wasn't accurate.

Marty, I was kidding around. Maybe my sense of irony is out of whack or something. But I was riffing on the idea that we couldn't possibly cease arguing, not on the internet, at least.

Besides, if you can randomly assert this is true:

" It's not as though, say, the health care reform made it any more likely that the president would attempt to claim the power of assassination."

I figured I could randomly assert it isn't, just on the basis of overall ongoing consolidation of Federal powers and President Obama feeling his oats.

Seriously? Let me put it this way: Is there any particular reason to believe that congress passing health-care reform would make the president claim the power to assassinate American citizens without due process?

I could "randomly" assert that drinking milk won't increase my chances of turning into a filing cabinet, but I can't prove a negative. However, if you disagree, you are free to demonstrate a mechanism by which that would happen.

If you honsetly think "overall ongoing consolidation of Federal powers and President Obama feeling his oats" is the mechanism by which Obama is more likely to claim the power of assassination as a result of health-care reform, then why not just say that in the first place. It's not a compelling argument, but it beats "But, yes, it does" all by its lonesome. At least we can be sure that your basis is silly, if better than nothing.

But that is far enough afield that I'd prefer to discuss it in another thread.

Okay. But we seem to have got on the subject in THIS thread, SOMEHOW :)

--TP

The upside of the President feeling his oats and mandating healthcare for folks with pre-existing conditions AND assassinating American citizens is that if the gummint marksmen botch the job (they can't do anything right, no?), at least the target won't have his or her health insurance canceled.

So if it were in the form of an overall income tax increase with a credit for people who purchase health insurance, that wouldn't be a problem? Even though the effects are exactly the same?

See, that's my point. It's a distinction without a difference.

Call it a penalty if you like, but in no meaningful way is it distinguishable from a tax deduction/credit based on certain preferred behavior.

I mean, if he had raised everyone's taxes by $5K, and then offered a $5K credit to people that bought insurance, that would be OK, so what's the major difference here?

Also: Car insurance. The government mandates that you buy it.

Also: Car insurance. The government mandates that you buy it.

Well, but the federal government doesn't mandate that you buy a car. Except in that large portion of the country where the federal government has pursued a transportation policy built entirely around privately owned car use. But that's different.

Right, but then is that the key distinguishing feature here? That if you take a certain action (say, buying a car), then the govt. can require you to purchase a third party's product (say, insurance), but not unless you take a certain action?

That's the Constitutional principle?

Just to note: the Federal government doesn't require you to buy car insurance. In many states the only insurance you are required to buy is liability insurance, in case you damage someone or something that isn't you or your car.

These two things just aren't the same.

These two things just aren't the same.

Well, yes, one is car insurance, the other is health insurance. But that is clearly not the distinguishing factor from a Constitutional perspective.

Otherwise, it's ok for states to require you, but not the federal govt.?

I'm asking out of curiosity.

I want to understand the grave Constitutional principle that has been undermined here.

Is that it?

If so, what about the tax question Hogan/I posed earlier?

"Congressional laws are not possessed of the same legal stature as the Constitution. They may be the law of the land, but they're not perforce the supreme law of the land. "

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;"

I find that, unless you're quite familiar with the actual text of the Constitution, it's a good idea to check these things before you hit "submit".

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