When George Will is not wasting his WaPo column singing praises for the latest long-shot GOP candidate in the media spotlight, he can lyrically voice the truth of a matter like few other pundits. His latest column is a pitch perfect observation on how President Obama’s State of the Union address betrays a longing for an “unfettered executive” branch by his administration and among his supporters:

“Obama, an unfettered executive wielding a swollen state, began and ended his address by celebrating the armed forces. They are not “consumed with personal ambition,” they “work together” and “focus on the mission at hand” and do not “obsess over their differences.” Americans should emulate troops “marching into battle,” who “rise or fall as one unit.

Well. The armed services’ ethos, although noble, is not a template for civilian society, unless the aspiration is to extinguish politics. People marching in serried ranks, fused into a solid mass by the heat of martial ardor, proceeding in lock step, shoulder to shoulder, obedient to orders from a commanding officer — this is a recurring dream of progressives eager to dispense with tiresome persuasion and untidy dissension in a free, tumultuous society…

To enact and execute federal laws under Madison’s institutional architecture requires three, and sometimes more, such majorities. There must be majorities in the House and Senate, each body having distinctive constituencies and electoral rhythms. The law must be affirmed by the president, who has a distinctive electoral base and election schedule. Supermajorities in both houses of Congress are required to override presidential vetoes. And a Supreme Court majority is required to sustain laws against constitutional challenges…

Like other progressive presidents fond of military metaphors, he rejects the patience of politics required by the Constitution he has sworn to uphold.”

Will’s column is not without false notes.  He implies by omission that the desire for an unfettered executive branch is unique to the progressive wing of the Democratic Party.  Not so. The executive privilege, unitary executive definition and war power assertions of the Bush/Cheney Presidency is still fresh in my mind, even if forgotten or minimized by Mr. Will. The single greatest disappointment of the Obama Presidency has been his willingness to use the Bush/Cheney Unitary Executive definition as a jumping off point to further expand the power of the presidency.

This appetite for expanded executive authority is also clearly evident in all of the current batch of Republican Presidential hopefuls save Ron Paul.  None more so than “Big Government Conservative” Newt Gingrich,  who would also like to remove any judicial constraints on both the executive and legislative branch. I am not sure which is more frightening…

New Gingrich claiming authority to disregard or dismantle the judicial branch:

“I decided that if you had judges that were so radically anti-American that they thought ‘one nation under God’ was wrong, they shouldn’t be on the court.”

- or –

President Obama dismissing the joint session of congress in his SOTU address:  with “You won’t act, so I am.”  

Both sentiments represent a depressing prospect for all but closet monarchists.

Today, the Republican House of Representatives, divided government, and the Supreme Court are the only meaningful constraints on the Democratic executive branch. This election cycle the GOP is likely to maintain their majority in the House and take majority control of the Senate. Senate control will add one more fetter to a Democratic president but, if recent history is a guide, will put no additional limitation on the power of a Republican president. This should give pause to George Will and anyone else who purports to care about Madisonian democracy and the checks and balances enshrined in the Constitution.

There is a real risk that we will return to One Party Rule under the Republicans in 2013. If that still looks likely in the fall, I would hope that anyone as concerned about executive branch overreach as George Will would endorse the re-election of Barack Obama. At least this would prevent loosening the remaining tenuous legislative fetters still constraining the expanding executive branch beast.

While ever hopeful, I will not be holding my breath.

^{Cross-posted from “The Dividist Papers“}

Rick Ungar digs up an argument ender for the idea that the Founders would never be in favor of mandated health care.

They were…because they passed a VERY similar law in the 6th Congress.

Rick…take it away…

In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.

And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.

So why did they do it? Were they secret socialists? Of course not. But they had a crisis on their hands so they crafted some common sense legislation to address it. And, by the way, it was way more “socialist” than what Obama got passed.

For example…

When a sick or injured sailor needed medical assistance, the government would confirm that his payments had been collected and turned over by his employer and would then give the sailor a voucher entitling him to admission to the hospital where he would be treated for whatever ailed him.

While a few of the healthcare facilities accepting the government voucher were privately operated, the majority of the treatment was given out at the federal maritime hospitals that were built and operated by the government in the nation’s largest ports.

As the nation grew and expanded, the system was also expanded to cover sailors working the private vessels sailing the Mississippi and Ohio rivers.

The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.

That’s right…a sailor couldn’t even go to the hospital unless the government knew they had been paid…and the treatment was in government owned facilities…for people employed by private companies…who were required to buy insurance.

Now some will say that this doesn’t say people are required to buy private insurance. That’s right, it doesn’t say that. And if you want to split hairs between private and public insurance, well, we can go there but that again paints the Founders as far more socialist than the current legislation, thus negating the argument we’ve heard time and time again by the Repubs.

Peter Beinart makes a good point about our massive defense budget and undeclared wars…

In modern times, conservative presidents like Ronald Reagan and George W. Bush have tried to reconcile their efforts to rein in federal power with their support for a large military and an interventionist foreign policy. But both times, the latter has seriously trumped the former. Under both Reagan and Bush, aggressive, militaristic foreign policy produced more presidential power and larger deficits.

Tea Partiers say their movement is a response to the way government power, and government debt, grew under both Bush and Obama. But if they looked seriously at the reasons for that growth under Bush, they would see that much of what they’re upset about is the military and homeland security spending justified by his expansive “war on terror.”

Anyone genuinely worried about debt can’t ignore the fact that defense constitutes a majority of federal discretionary spending. And anyone devoted to a strict interpretation of the Constitution can’t ignore the fact that America is still fighting in Afghanistan and Iraq, not to mention Pakistan, Yemen and lots of other places, without formal congressional declarations of war, although that is what the Constitution requires.

Come on now Peter, we all know something is constitutional when they say it is.

This is why I can never get on board with judges like Scalia. Is he a smart guy? Of course. But the following? Not so much…

From Callawyer comes this Q&A:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Here’s what the 14th Amendment says regarding equal protection…

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

How can you read the above and not see that it was written broadly so it could be applied broadly? Of course gender isn’t referenced. But why has judge after judge after judge referenced this to strike down law after law after law that seeks to discriminate against nearly any person or group? The idea that we’d have to legislate sexual discrimination on a state by state basis is insane.

But here’s why I take issue with strict constitutionalism: it seems to be anything but. Scalia says above, “Nobody ever thought that that’s what it meant. Nobody ever voted for that.” Okay, fair enough. So how can Scalia square those statement with his use of the equal protection clause in Bush v. Gore where he argued that different standards of counting ballots violated the amendment and infringed Bush’s rights? And before you twist yourself into a pretzel trying to explain why it’s okay for that case and not discrimination cases…save your breath. Or, well, you can try, but you’re just proving my point…that we all interpret things differently and the overwhelming consensus is that the 14th amendment prohibits discrimination on the basis of who you are in a very broad sense.

Oh…and newsflash…the Constitution isn’t a perfect document. And guess what? The Founders knew that. That’s why they made sure it could be amended. That’s also why they established the judiciary…to sort through the subsequent questions that would arise.

Still, if you want more reasons why Scalia is just plain wrong, read what Jack Balkin has to say.

I suspect that I am the only political blogger who has not yet posted about the mosque/not mosque expected to be built/not built in a location somewhere near/not near ground zero in New York.

I have avoided this issue thus far because I feel a lot like this guy – or this guy – or perhaps like William Shakespeare – “It is a tale told by an idiot, full of sound and fury, signifying nothing.“ I see this as little more than a excuse by partisans and bloggers on both the right and left to flog their favorite bogeymen in the hope of securing a minor political advantage. The significance of this story is just not worth the ink and electrons spilled on it.

But, that has not stopped anyone else, so let me make my position on this question perfectly clear – This blogger stands firmly with Michael Bloomberg, Grover Norquist, Chris Christie, Joe Scarborough, Michael Gerson and Barack Obama (Friday, 8/13/10 version) in support or indifference to the location of the Cordoba project mosque – and stands in opposition to Harry Reid, Howard Dean and Barack Obama (Saturday 8/14/10 version) who do not explicitly support the location of the Cordoba project mosque.

In America, in matters of religious tolerance, there should be no close calls, no qualification of primary principles, and the first amendment should not be location dependent. I am not sympathetic to the distinction of “rights” vs. right which strikes me as a Clinton-esque parsing for those looking to rationalize forcing the Cordoba Project to move the mosque/cultural center.

I”m going to make this easy on myself and crib extensively from a previous post invoking the views of a founding father whose words are as relevant now as they were 230 years ago.

Thomas Jefferson writing in the third person, in a letter to Dr. Jacob De La Motta on the occasion of the 1820 dedication of a synagogue in Savannah, Georgia:

His short letter speaks to both the intent and core convictions of an architect of our country and constitution. Consider the pride and importance that Jefferson invests in the principle of religious freedom and diversity in this letter. He finds it “gratifying” that our country was the “first to prove to the world” the “two truths” that are the most beneficial to human society - “that man can govern himself”, and absolute “religious freedom” is the only answer to “religious dissension”.

Andrew Sullivan reminds us that Islam was explicitly included in Jefferson’s message of tolerance. He quotes from Jefferson’s autobiography where Jefferson expands on the intent of the Virginia Statute For Religious Freedom – “Jefferson On The Toleration Of Islam”:

Finally in a letter to Moredcai Manuel Noah, Jefferson notes that while protection of religious freedom under the law is a necessary condition, it is not sufficient to ensure tolerance and the fair and equitable treatment of all religious belief.

The work of religious tolerance was incomplete in the time of Jefferson, and remains incomplete today. Religious intolerance is an issue that every generation of Americans must face anew. As Americans of good will fought for the principle of religious freedom at the beginning of the American experiment, it falls to Americans of good will in each generation, of every religion, race and creed, to ensure that in their own time their generation remembers and understands that – as regards religion – “divided we stand.”

To wrap this up I will invoke a poet/philosopher of our own time – Mojo Nixon. While these lyrics were written in response to another civil libertarian challenge, I don’t think Mojo would mind my applying them here…

^{Cross-posted from Divided We Stand United We Fall}

UPDATED & EDITED: I added one word to the body of the post. You find it.

This week the ACLU released a disturbing report documenting the permanent enshrinement of the Bush/Cheney definition of the Unitary Executive by the Obama administration. With the tacit acceptance of the Democratic Congress, the balance of power continues to shift heavily to the executive branch. While distressing, the report is unsurprising as it became clear in the first few weeks of the new administration that Obama’s campaign rhetoric of rolling back the Bush/Cheney power grab was just that – empty campaign rhetoric.

The ACLU report “Establishing a New Normal” is summarized here, and the full report linked here [PDF]. The report assesses the record of the first 18 months of the Obama administration across several civil rights categories and is well worth the read.

Excerpted here – a few ACLU report highlights lowlights:

It is easy to point to the hypocrisy of liberals and Democrats who railed with righteous indignation about the Bush/Cheney expansion of executive power, only to be complicit in the continuing erosion of our liberty now. Their deafening silence, kid-glove criticism, and/or rationalizations of the Obama administration’s continued expansion of executive power and consequent institutionalization of the Bush/Cheney Unitary Executive speaks volumes about their prioritizing partisanship over principles.

To be sure – there are principled voices on the left who have consistently and clearly pointed to this administration failure – notably Glenn Greenwald and Jane Hamsher among others:

These voices are too few. The first two years of the Obama administration represent a badly squandered opportunity to undo the damage done by the previous administration.

Worse than the routine partisan hypocrisy by administration apologists, is the complete abrogation of constitutional checks, balances, and executive oversight responsibilities by our Senators and Representatives in Congress.

Fro example, what happened to the soaring rhetoric of Senator Patrick Leahy – who campaigned passionately and relentlessly for the restoration of constitutional Habeas Corpus protections in 2006?

In 2007 I again supported the Leahy follow-on effort to restore Habeas Corpus:

If you click on the petition linked in this quote you’ll note the referenced campaign on the Leahy website no longer exits, replaced with a milquetoast request to send a letter to your senator requesting support. I guess it is just not as high a priority for Leahy if a Democrat has “power that nobody, no king or anybody else set foot in this land, ever thought of having.” I expect Democrats will not be as sanguine about the expanded and institutionalized power of the Obama Unitary Executive when and if a Mitt Romney or Sarah Palin steps behind the wheel of this supercharged presidential machine.

The ACLU report focuses on civil liberties, but the accelerating accretion of executive power over our economic liberties has been equally egregious. I won’t belabor the point in this post, but will simply point out the obvious. Regardless of what one thinks of the merits or politics of the legislation, it is beyond argument that Obamacare and Financial Regulation as passed, dramatically increase the power held by the executive branch. With these laws, Congress granted vast power to faceless bureaucrats in the executive branch with unfettered latitude to set industrial policy, create and enforce broad new regulations over the healthcare and financial industries.

Even beyond these laws, even when operating without a firm legal foundation, this administration has repeatedly demonstrated an eager willingness to push the the boundaries of presidential power.

You’d think, even allowing for partisanship, there would be enough institutional loyalty among our legislators to try to maintain some semblance of balance between the supposedly co-equal legislative and executive branches of government. It is simply not happening. In times of Single Party Rule (as we’ve had for eight of the last ten years) it is Party Über Alles, and the constitutional checks and balances envisioned by the founders between the executive and legislative branch just fade away. This was true with Republicans in 2000-2006, and it is true with Democrats now.

At the rate that the Senate and House have ceded power to the executive branch over the last decade, combined with the lap dog deference most legislators offer to an executive of the same party, the legislature might as well vote itself out of existence. Perhaps they could be functionally replaced by a Legolist e-mail listserv.

The only remaining restraint on executive power today is the judiciary. This is why I have supported and will continue to support Obama nominations to the Supreme Court. My fervent hope is that the new justices will help form a SCOTUS majority that will pull hard on the reigns of the executive branch, declare many of the Bush/Obama administration actions (civil and economic) unconstitutional, and restore some semblance of the rule of law.

Regardless of what you may think of the political leanings of ACLU, they are fighting the good fight for our constitutional protections in the courts and they are doing it regardless of the party in power. They deserve our support. Beyond the courts, the only other way to restrain the extraordinary economic overreach and fiscal irresponsibility of this executive branch is to vote Republican in 2010 and divide this government. Congress only seems to remember their executive oversight responsibilities when the president is not of the same party as the majority in Congress.

^{Cross posted from “Divided We Stand United We Fall“}

I’ve found the base camp of crazy.

Have a look:

At the time that I am writing this, at least 20 – 30% of Americans understand thus far, know the true nature of President Obama, and the steps he is now taking to destroy freedom.  [...]  A real Second American Revolution is now on the horizon.

We are witnessing the literal death of our Republic, that can come in less than 4 years.

Well, let us start the journey down the road to Revolution in the United States of America.  I believe you will understand it all, and at the very least, by the end of this article you will be ever vigilant.  Perhaps maybe, you’ll even exercise your 2nd Amendment rights, before you can no longer do so.

maybe, just maybe, enough of us can “peacefully” prevent it all.  It is not likely by far, but we can hope.  Marxists won’t go down without a fight so keep this in mind…

Even if you have never fired a weapon, do yourself a favor and exercise your constitutional right to bear arms. Buy a rifle, take some lessons and start up a hunting club. Even if you don’t hunt.  Start a marksmanship club in your college or even high school.  Whatever you do, DO NOT EVER Give up your right to bear arms! Not to any government EVER.

I’m a fan of the 2nd amendment…

the right of the people to keep and bear arms, shall not be infringed.

Every American should be able to own the biggest, sickest, machine-gunniest weapon they can afford. The modern day fight against tyranny will require more than your average hand gun. These people are spot on.

However,

A well regulated militia, being necessary to the security of a free state

A well regulated militia (read: gun-toting populace) should be educated enough to actually recognize tyranny, distinguish between fact and fiction, and exercise some amount of self-control and patience before blowing the roof off the White House. These people are – what’s the opposite of spot on?

These days everybody has a reason for saying that the founders are rolling over in their graves. Here’s mine:

It’s because their Republic is becoming a nation expecting to be ignorant and free.

Since Nick raised the issue of the Constitutionality of Congresses efforts to recoup the bonuses paid to AIG executives, I figured it would be worthwhile to share this post I wrote yesterday on my personal blog:

The hyperbolic rage against the AIG bonuses has finally transformed itself into legislation:

While American International Group Inc.’s chief executive says the firm could recover millions in bonuses via voluntary means, that’s not slowing a legislative effort to recoup the money and shift the incentive-based pay structure traditionally used by financial institutions.

The House is scheduled to act Thursday on legislation (HR 1586) that would impose a 90 percent tax on bonuses given to highly paid employees not only of AIG, but of all recipients of more than $5 billion in federal bailout funds, a group expected to include about a dozen financial institutions, according to Ways and Means Chairman Charles B. Rangel , D-N.Y. Bank of America Corp., Wells Fargo & Co. and Citigroup Inc. would likely be among the affected companies.

“I expect to see an overwhelming vote,” House Majority Leader Steny H. Hoyer , D-Md., told reporters Wednesday afternoon.

Of course you will. The question is whether Congress even has the authority to do pass legislation of this type. Several pundits — here and here for example — have argued that the move would violated several provisions of the Constitution, but the sad truth of the matter is that this Congressional mugging is, most likely, Constitutional.

Bill of Attainder and Ex Post Facto Arguments

Article I, Section 9 of the Constitution includes the following limitation on Congressional power:

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is generally defined as follows:

“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.

Since the legislation being considered by Congress would apply to anyone who receives a bonus from any entity that received more than $ 5 billion in TARP funds and isn’t just limited to recipients of bonuses from AIG, it is likely general enough to get past any question that it is an unconstitutional Bill of Attainder.

As for the ex post facto argument, the Supreme Court decided way back in 1798 that this provision only applies to criminal laws, not civil laws such as a tax measure, so there would be no bar to the bonus tax even though it is theoretically retroactive.

Other Constitutional Arguments

As the Wall Street Journal notes, the remaining arguments against the bonus tax plan are even weaker. The Contract Clause of Article I, Section 10 only applies to the states; the Takings Clause of the 5th Amendment has never been interpreted to apply to tax laws; and, the Due Process Clause of the 5th Amendment only applies to procedural due process, which would clearly exist in this case.

Finally, a post at Wizbang has also raised an Equal Protection objection to the planned tax:

[W]e might as well mention the concept of Equal Protection, since a law taxing only AIG employees would clearly violate it.

As I noted above, the proposed legislation does not only apply to AIG employees or bonus recipients. Therefore, it’s unlikely that they could make a successful claim that they were being singled out as a class by the law. Even if they were, it’s unlikely that they would be considered a suspect class for equal protection purposes, meaning that the law would only have to pass the fairly liberal rational basis test. Most importantly, though, it’s fairly clear from the language of the Fourteenth Amendment that the Equal Protection Clause only applies to the states:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So, as far as the Constitution goes at least, Congress is, sadly, within it’s authority to tax away to oblivion the AIG bonuses.

Update: Conor Clarke offers this from Harvard Law Professor Laurence Tribe:

I’m in the process of taking a closer look at this issue at the request of several others both in and out of government, but I can tell you this much on the basis of what I know from my past research and experience: It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge.

Such a tax would presumably be leveled on the basis of some criterion sufficiently general to avoid classification as a measure targeting solely a closed class of identified and named individuals. The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective. Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge. Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic “trial by legislature” that the attainder ban was designed to avoid.

All things considered, I believe it very likely that Congress could design a fully constitutional means of clawing back into the federal treasury all amounts paid (or to be paid in the future) in the form of retention bonuses from federal funds disbursed either by the Federal Reserve Board pursuant to legislative authorization tracing to the 1930s or by the Treasury pursuant to the most recently enacted federal bailout and stimulus measures.

It seems to me that the bill passed by the House today fits Tribe’s criteria quite well and that, in the end, any Constitutional objections will end up being entirely academic in nature.

H/T: James Joyner

I like the idea in theory, but I always thought that Governors replaced Senators because it’s too costly to have special elections and somebody needs to serve in the interim.

Still, this seems like the type of amendment that could easily garner bi-partisan support.

From Political Wire:

The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end.

In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators. They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people.

I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute.

So maybe there will be some silver linings in the Blagojevich and Kennedy messes after all.

Thomas Geoghegan, a well-known liberal lawyer who is running for Congress in Illinois, had an op-ed piece in the The New York Times yesterday that raised a question I must admit I hadn’t known even was a question: are appointments by governors to fill Senate vacancies unconstitutional?

The 17th Amendment to the U.S. Constitution, adopted in 1913 to require the election of Senators by the people, not by state legislatures, also requires governors to “issue writs of elections” when Senate vacancies occur. It then adds this proviso: “Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

According to Geoghegan, “the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines.” It does not cancel the requirement to “issue writs of elections.”

“Yet the current practice in virtually every state flips the proviso to override the main clause,” Geoghegan notes, a practice that “frustrates the whole democratic thrust of the amendment.”

Geoghegan points out that the Supreme Court has never ruled definitively on this practice, even though its been going on for decades. He says the only precedent comes from a decision by a federal appeals panel (Valenti v. Rockefeller) upholding the Governor of New York’s decision to fill the vacancy created by Robert F. Kennedy’s murder. That decision rested on the fact that Kennedy’s death in June 1968 did not leave enough time to hold a primary prior to an election in November of that year.

This is fascinating. If Geoghegan is right, someone might be able to challenge the constitutionality of Rod Blagojevich’s appointment of Roland Burris (or any other gubernatorial appointment). Any thoughts on this from all the Constitutional scholars out there?

(Visit me at The Purple Center)

It hasn’t reached the mainstream media yet, but in the days since Hillary Clinton’s nomination to be Barack Obama’s Secretary of State became official, there’s been some discussion of a little-known provision in the Constitution that could bar Hillary Clinton from serving at Foggy Bottom:

[S]pecifically, Article One, Section Six, also known as the emoluments clause. (”Emoluments” means things like salaries.) It says that no member of Congress, during the term for which he was elected, shall be named to any office “the emoluments whereof shall have been increased during his term.” This applies, we’re advised, whether the member actually voted on the raises or not.

In Clinton’s case, during her current term in the Senate, which began in January 2007, cabinet salaries were increased from $186,600 to $191,300.

The language of the section itself would seem to be rather clear:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Since the salary for Cabinet Secretaries was increased while Hillary Clinton was a Senator, the Emolument Clause, as it’s called, would seem to apply pretty clearly.

There is a work around, but it’s Constitutionality is dubious:

That “fix” came in 1973, when President Nixon nominated Ohio Sen. William Saxbe (R) to be attorney general after the famed “Saturday Night Massacre” during the Watergate scandal. Saxbe was in the Senate in 1969 when the AG’s pay was raised.

(…)

Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and “we should not delude the American people into thinking a way can be found around the constitutional obstacle.”

Michael Stokes Paulson, a Law Professor who has written on the application of the Emoluments Clause in the past, says this regarding the Clinton appointment:

The Emoluments Clause of Article I, section 6 provides “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” As I understand it, President Bush’s executive order from earlier this year “encreased” the “Emoluments” (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which “the Emoluments whereof shall have been encreased” during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment … if the Constitution is taken seriously (which it more than occasionally isn’t on these matters, of course).

(…)

Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but “standards” or “principles” to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn’t bet on this actually preventing the appointment, however. It didn’t stop Lloyd Bentsen from becoming Secretary of State [This appears to be a typographical error. Bentsen, of course, was Bill Clinton's first Secretary of the Treasury]. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution’s actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don’t know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

Paulson’s argument is certainly persuasive, and while it’s unlikely under present circumstances that any Court will entertain a lawsuit seeking to invalidate Clinton’s appoint, it’s fairly clear that if the words of the Constitution are supposed to mean what they say, then Hillary Clinton should not be Secretary of State.

Vladimir Putin continues to consolidate power…

From TNR:

If any proof were needed that the Russian political system operates in its own time-space continuum, it came this morning, when the parliament decided to deal with the country’s economic meltdown by amending its constitution.

The Duma fixed the 1993 text by decoupling presidential and parliamentary elections and approving term extensions for the president, from four to six years.

The amendment, which President Dmitry Medvedev announced on November 5, was discussed for a scant two weeks and passed overwhelmingly: 392 to 57. (Amazingly, those 57 votes came from the Communists.)

The Moscow Times offers dissent, as well as a prediction of decreased Putin favorability in the near future…

This looks as if Putin is carrying out a constitutional junta. The only difference between his junta and the one in Latin American is that Putin is taking pre-emptive steps now to avoid a military coup later. This way he can maintain a semblance of democracy by packaging the coup in constitutional trappings.

Putin loyalists control the Central Election Commission, the major television stations, the main political parties, the Duma, the Federation Council, the military, police and the secret services. And the president, of course, is also Putin’s man.

The only things in Russia that are not under Putin’s control are the dollar, the price of oil, Islamic extremists in the Caucasus and the financial crisis. These are all crucial factors that will determine the country’s political future. As the economy worsens, Putin will receive less support from the upper level of bureaucracy, which up until now has received a generous windfall from high oil prices. As this source of income dries up, so will the elite’s unconditional support for Putin. The elite may continue to support Putin on the surface, but at the same time they will be calculating their personal financial losses as the crisis unfolds. They will also be asking themselves the question, “Perhaps we need a change from the current Chekist leadership?”

Jeezus, let’s hope so.

Jon Meacham and Ashton Kutcher discuss Prop 8…

I agree with both of them, but Ashton more so. The idea that people voted on somebody else’s rights and relationships is crazy.

In the end, I wish the government would get out of the business of marriage and set up a separate civil union system so people could have all the legal rights of marriage without the religious ties. And then people can go get a marriage in a church if they so choose.

Hello, this is Danielle Ivory from American News Project.

My friend and colleague, Lagan Sebert, and I have just published a follow-up on the voting situation in Pennsylvania, arrowing in on a recent legal battle over paper ballots and the Philadelphia City Commission (which has kind of become a peculiar little beat for the ANP, I guess.)

This week, we attended the federal hearing against the Commonwealth of Pennsylvania (filed by the NAACP) and the last public meeting of the Philly City Commissioners before the election. We were surprised to see very few members of media at either meeting–Bob Warner of the Philadelphia Daily News was an exception.

If you like it, please do send this along to other people who might be interested or link to it or embed it on your websites! All ANP content is free for use in newspapers, blogs, television, and radio.

Chaos Looms Over Pennsylvania Vote
By Danielle Ivory on Oct 31, 2008

Philadelphia is shaping up to be a key city in a key battleground state in this election, but machine problems and long lines may plague the polling stations and voter disenfranchisement will be a serious risk. Unfortunately for voters, the people charged with running a smooth election in Philly seem surprisingly unconcerned. Philly’s veritable election czar, Marge Tartaglione (D), in particular, shocked ANP with her comments at a recent hearing. See more videos at the American News Project.

ANP has been investigating the perplexing case of the Philadelphia City Commission for a few weeks.

Click for our original story, Philly Official Scoffs at Voting Problems.

Click for our follow-up, Voters Sue Pennsylvania, Election Official Scoffs.

And click for the judge’s recent ruling in the case of the NAACP v. Cortes.

Follow Danielle’s reporting on twitter.

Follow Lagan’s reporting on twitter.

I’m sorry folks, but the following argument is RIDICULOUS and I can’t believe it’s coming out of the mouth of somebody so close to the presidency…much less the Governor of one of our states.

I mean…WTF?

Palin told WMAL-AM that her criticism of Obama’s associations, like those with 1960s radical Bill Ayers and the Rev. Jeremiah Wright, should not be considered negative attacks. Rather, for reporters or columnists to suggest that it is going negative may constitute an attack that threatens a candidate’s free speech rights under the Constitution, Palin said.

“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations,” Palin told host Chris Plante, “then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

*sigh*

Does she not get that the 1st Amendment isn’t designed to keep people from getting verbally attacked? In fact, it’s designed to do just the opposite, except that all speech is obviously subject to slander, libel and incitement laws. In other words you can’t print or say false things about somebody or attempt to incite violence or mayhem through your speech. But apart from that, it’s all free.

And the additional idea that she would attempt to convince base Republicans that criticism of her attacks is somehow infringing upon her 1st Amendment rights? That’s is absolutely shameful.

I hope this woman disappears back to Alaska and is completely forgotten. She is such a joke.

She keeps on stumbling…

Doug breaks it down…

Palin’s statement is particularly interesting mostly because it ends up becoming a fundamental misreading of what Jefferson meant when he said that the First Amendment had erected a “wall of separation” between the political and clerical worlds — namely his assertion, widely accepted during the Founding Era, that true religious liberty required that the state and the church remain separate entities.

Just as the state should not get involved in or seek to influence matters belonging to the religious world, the church should not get involved in or seek to influence matters that are the purview of civil government.

Correct, it works both ways, although nowadays there’s much more focus around making sure the church stays out of the government’s space than vice versa.

Today is Constitution Day, a holiday created four years ago to mandate that schools receiving federal funds focus on teaching the Constitution. My home town paper laments that “Constitution Day has become a holiday-lite, a calendar marking that brings up nods of appreciation but little else.” Perhaps that makes USA Today a better newspaper to take note of the holiday with a 100 word story (I scored 80% on the linked quiz).

For five months in 1787, a constitutional convention convened in Philadelphia to revise the Articles of the Confederation. The articles were considered inadequate for the nascent federal government to deal with conflicts such as Shay’s Rebellion. Instead of revising the Articles, the delegates wrote an entirely new document. 221 years ago today – on September 17, 1787 – 39 of the 55 delegates to the convention signed the Constitution of the United States. It is the oldest and shortest Constitution of any major government in the world, and the first to be written by representatives of those who were to be governed.

Before becoming the basis of our government, the Constitution had to be ratified by the states. Having fought to escape the shackles of a distant despotic monarchy, many were understandably leery of a replacing it with a less distant but strong federal government. The document was debated by citizens and leaders in the mass media of the day – newspapers and pamphlets. From About.com:

“In the months that followed, James Madison, Alexander Hamilton and John Jay would write the Federalist Papers in support, while Patrick Henry, Elbridge Gerry, and George Mason would organize the opposition to the new Constitution. By June 21, 1788, nine states had approved the Constitution, finally forming “a more perfect Union.”

James Madison, the “Father of the Constitution” in Federalist #51 argued for the protections provided by the separation of power, checks and balances in the Constitution:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The debate on whether the constitution adequately protects the governed from the government continues to this day. Widener University School of Law has organized an online debate on what the Constitution means to modern Americans. Richard Pildes, Professor of Constitutional Law at New York University School of Law contributes to the debate with a pessimistic analysis “Political parties tilt balance of power“:

“During periods of unified government, in which the same political party controls the House, Senate and the presidency, the president has the capacity to exercise wide-ranging powers without extensive oversight or checking and balancing from the other political institutions of government. The president’s power is thus not static or fixed. Yet neither the Constitution nor our thinking about the presidency has fully come to terms with this truth. Indeed, the Constitution did not contemplate a system of political parties at all. When the Constitution was designed, the existence of parties — factions, in James Madison’s terms — was a sign of a diseased political system. The Constitution was specifically designed to create a system that would transcend parties and minimize their role… the conventional stories we tell about our system of checks and balances, or separation of powers, are not all that realistic in practice. If we continue to believe in the benefits of checks and balances — and I do — we must accept that effective congressional oversight of the president is not likely when the House, Senate, and presidency are in the hands of the same party. We need to modify our institutional structures to find other ways of generating effective checks and balances. The most promising route would be to give the opposition party tools to oversee the president — perhaps the power to call hearings or subpoena witnesses or to audit the government. I do not expect these measures to be adopted. No legislative majority cedes power to the minority.”

However, until such time that additional protections for the governed can be built into the Constitution, we the governed can address this Constitutional defect on our own – by never voting one party into control of the Presidency, Senate, and House or Representatives. By voting for divided government.

Easier said than done, but important to think about.

How are you feeling this morning? I’m not feeling great. I am a little unhappy about the news.

You might not have noticed, as this was only the third most important story yesterday. Based on television news coverage, the most important political story yesterday was Rev. Jesse Jackson caught making crude remarks about Obama on an open mike. The second most important story was John McCain joking about cigarette exports killing Iranians. The third most important story was our elected representatives voting to restrict 4th Amendment protections that have been afforded Americans since the founding of the country and the crafting of the Bill of Rights.

Who cares? After all, what did the founding fathers know about the need to protect individual civil liberties against the overreach of power by a unitary executive? Clearly our Congress and President, and the two senators who want to be our next President know better than the founders what civil protections we really need. So protections that have been in place for over two hundred years are now less than they were. Activities by our government to eavesdrop on conversations of Americans that were illegal yesterday, are legal today (or as soon as GWB signs it into law).

I am not going to belabor this. We have beat this to death at Donklephant in previous posts here, here and here. Just one point – When smart people on the right, left, and academia agree that this is a very bad bill that erodes our freedom and constitutional protections, it does not mean this is a good compromise. It means this is a very bad bill that erodes our freedom and constitutional protections.

No I’m not feeling great. I feel about the way the Senator Russ Feingold looks in this interview on MSNBC’s Coutdown yesterday, where he says:

“This is a sad moment, it really is a black mark, not only on Democrats, but on the Congress, and the history of the United States. This is one of the greatest assaults on the Constitution in the history of our country.”- Russ Feingold

C’mon Russ! Lighten up! It’s only the Constitution and the Bill of Rights. Sheesh….

[OK. I give up. There is supposed to be an MSNBC Video Embedded here, but I can't get it to embed. You'll have to go HERE to see the video.]

Some thoughts on this interview. Feingold expresses a hope that a future Congress will take this up and restore our Fourth Amendment protections. What do you think the likelihood that any President or Congress will voluntarily reopen this political can of worms?

I actually believe it will happen, but not without a powerful catalyst. It will happen only after the inevitable abuse of these new powers are revealed to the American people.

Why inevitable? Because every single expansion of government power over citizens is ultimately abused by those entrusted with that power. I don’t know when that will happen, but I know it will happen.

Outrage over executive branch abuse of eavesdropping and domestic surveillance was the reason for the original FISA legislation in 1978. When FISA was modified by the Patriot Act, the loosened restrictions were immediately abused by the FBI, and that abuse continued for years. With these even looser restrictions, there will be more abuse. It is only a question of time, a question of how the abuse will be revealed and a question of how badly and how many Americans must be hurt before enough outraged Americans force Congress to act. Perhaps the abuse will happen under President Obama. Perhaps the abuse will happen under President McCain. Perhaps it will happen under a President four eight or twelve years from now. But it will happen.

It is also interesting that Feingold declined to answer Maddow’s question about the real liklihood of an Obama presidency pursuing criminal liability against the Telcos and administration officials that broke the law. This, as you may recall, was Obama’s CYA fig leaf rationalization for explicitly breaking his promise to filibuster any FISA provision that included Telecom immunity. Feingold did not decline to answer because he does not know the answer. He knows. He knows that Obama is being disingenuous and there is no possibility of a criminal prosecution for law-breaking activity that Congress just made legal.

No, I don’t feel great. I particularly don’t feel like the idea of contributing or supporting either of the Tweedledum Tweedledee presidential candidates who have so little respect for our Constitution and the civil liberties of Americans.

^{UPDATED: Found some more links for the next round of opposition to this “assault on the Constitution”, and have edited the last paragraph to reflect the same.}

Contributions? Instead of the candidates, I’ll make contributions to organizations like the Strange Bedfellows Alliance, a progressive / libertarian alliance that will target legislators that voted to reduce my freedoms. Since the Executive and Legislative branch have no respect for the Constitution, I can only hope the Judicial branch will. The ACLU and Electronic Freedom Foundation are going to test the constitutionality of this law in the courts. I’ve never contributed to the ACLU before, but I will now and I will get behind this program and suggest you do also.

There. I feel a little better, now.

I have expended more than a few words criticizing Keith Olbermann for his kid-glove (fawning? sycophant?) treatment of Barack Obama, particularly his coverage of Obama’s flip-flop on opposition to the very bad FISA compromise. Last night Olbermann reversed himself (sort of) and expressed some mild criticism of Obama’s position on FISA (sort of) in a “Special Comment“, so it is only fair to include it here.

But first, for context, a brief outline of the story so far:

• Barack Obama expresses strong opposition to the Bush FISA executive eavesdropping power expansion with the Telco Immunity provision.
• Keith Olbermann broadcasts a “Special Comment” calling the FISA bill with Telco Immunity fascist.
• Obama flip-flops announcing support for virtually identical FISA “compromise” with Telco Immunity.
• Olbermann and Jonathon Alter praise Obama for “not cowering to the left” on the FISA compromise.
• Glenn Greenwald calls out Olbermann on his hypocritical coverage of Obama.
• Keith Olbermann says he did not read Greenwald, but responds anyway.
• Greenwald does read Olbermann’s post and dismantles his response.
• Olberman says, “Lets change the subject.“
• Olbermann broadcasts this “Special Comment” on Monday saying “Senator Obama wants his cake and eat it too”:

Frankly, I found the Olbermann comment to be somewhat incoherent, as he felt compelled to wrap extensive verbal caveats while inserting two or three shots at Republicans for every mild criticism of the Obama flip-flop. That said, he explicitly calls for Obama to take the “second chance” to do the right thing and either – join the opposition planning to filibuster the bill -or- explicitly state that an Obama administration will pursue a criminal prosecution of the Bush administration and Telco companies for violations of the original FISA law.

Olbermann makes much of the fact that the bill – (both the versions that Obama opposes and supports) only provides immunity from civil prosecution. Greenwald maintains that the possibility of criminal prosecution under this bill to be a fantasy, and remains focused on the bigger issue of stopping the expansion of executive power. In any case, I fully expect Obama to embrace neither of Olbermann’s suggestions. Having already flip-flopped once on the issue, it just would not be politic for him to flop-flip back.

More importantly, Olbermann’s commentary and the Olbermann/Greenwald debate has helped keep a spotlight on this important issue and the impending vote. This has all been made possible because a few Senators like Feingold and Dodd (and unlike Obama) were willing to show real leadership on this issue and keep principle ahead of politics. They succeeded in delaying the the FISA vote until after the Independence Day holiday, allowing time for opposition to build. Stopping or modifying the bill still seems unlikely, but this is politics, and there is no telling what might happen. Who knows? Our elected representatives might even decide to defend and protect the Constitution.