Executive Orders - What, Me Worry?

On the editorial pages of a newspaper that can scarcely pass up an opportunity to beat the drums for war, Ruth Marcus has taken up the horror of the executive order. She's not employing in the over-the-top rhetoric of Ross Douthat, but she is concerned about the ever-present slippery slope,

Every Democrat should be nervous about President Obama’s plan for unilateral action on immigration reform.

Not because of the impact on an already gridlocked Congress, or because it risks inflaming an increasingly hostile public. Democrats should be nervous about the implications for presidential power, and the ability of a future Republican president to act on his or her own.

Perhaps Democrats have short memories, because it seems to me that we saw ample evidence of what a Republican president can accomplish through executive orders when G.W. Bush signed a huge stack of them while on his way out of the White House. Leaving that aside for the moment, we're speaking specifically of executive orders that are being proposed because Congress cannot or will not do its job. I'm not particularly concerned about setting a precedent, as there's nothing particularly unique or special about what President Obama is proposing. For that matter, were the President to refrain from acting, I have no reason to believe that a future Republican president would exercise similar restraint.

The very first concern Marcus raises is interesting, but not in the way she imagines,

First, is there a limiting principle that would constrain the president’s authority to effectively legalize everyone in the country?

Obviously, when we're speaking of this type of executive action, we're speaking of a context in which the White House wants to address an issue on which Congress refuses to speak. Executive orders must be consistent with existing law, and if Congress is willing to pass legislation it can either avoid the need for an executive order or preempt the president's plan.

Marcus's slippery slope rests on the idea that, in the face of Congressional dysfunction, a President may stake out the most extreme position he can arguably take under existing law. That's possible -- but I'm not sure that it would be a bad thing -- not because I want Presidents to sidestep Congress, but because that type of action may be the only thing that is sufficient to light a fire under Congress's posterior such that it actually does its job. If Congress won't act when faced with the most extreme interpretations of existing law, it's a fair inference that the demagoguery of its members doesn't amount to much and that they find that interpretation to be acceptable. Would it be a bigger threat to democracy for the President to stake out extreme positions, presenting the loudest possible "put up or shut up" to Congress, or for the President to tiptoe up to the edges of what might inspire Congressional action while taking advantage of that institution's unwillingness to do its job?

Marcus also argues,

Second, is there a limiting principle that would constrain future presidents inclined against enforcing other laws with which they don’t agree — and on which they’ve been unable to convince Congress to act accordingly?

As previously noted, we're speaking of executive action taken in the face of congressional inaction. Although it is conceivable that a future president might refuse to enforce the laws favored by his own party, it's far more likely that such a president would be in a position to simply ask his party to amend the law.

If a President refuses to uphold the laws of the United States in a manner that Congress finds unacceptable, Congress has a well-known constitutional remedy: impeachment. If Congress chooses not to pursue a legislative remedy, and chooses not to initiate impeachment proceedings, it again becomes difficult to regard any table-thumping condemnations of a president as anything but noise.

The situation in which Marcus's concern might have some weight would be one in which the White House and one chamber of Congress is controlled by one party, and the other chamber of Congress is controlled by another. In such a scenario, the chamber aligned with the White House would have to be sufficiently supportive of the President's actions that it would refuse to support impeachment and conviction, but be unwilling or unable to pass legislation addressing the issue due to the divided government. But legislators have easy access to the media, to make their case against a president. The House of Representatives can slow down or shut down the government, or vote to impeach even if it expects that the Senate will acquit the president. The Senate can similarly slow down the government, not only by impeding the progress of legislation but also by putting the brakes on executive appointments, and can also shut down the government. The tools may not be as precise as would be ideal for the theoretical task at hand, but Congress is anything but powerless.

The fact that I'm not particularly impressed with Marcus's arguments should not be interpreted as my supporting the idea of the executive forming policy through executive orders on matters that are best addressed through legislation. My concern is less about the slippery slope -- a form of argument that can be applied to any action, no matter how trivial -- and is much more about what happens when Congress won't or can't perform its duties. Unlike Marcus or the various members of her employer's editorial board, I find the issue of greater concern to be the fact that we are involved in a new war in the Middle East predicated upon an authorization that cannot reasonably be said to apply to the present circumstances, yet Congress is content to let the war wage on while refusing to pass a new authorization bill that could define its goals or limit its scope. There's not even a hint of concern from the editorial board that we should have congressional authorization for war before we get into yet another armed conflict in the Middle East.

The Washington Post editorial board wants the President to commit ground forces, in the form of special forces, to the front lines of the war with ISIS. It is chomping at the bit for the President to declare direct war on what remains of the Assad regime, without any apparent concern for what would follow the collapse of that regime. But one thing about which the editorial board is conspicuously unconcerned? The absence of Congressional authorization for the present war, let alone the escalated, potentially disastrous war that they propose.

To put it mildly, I'm not thrilled that the President is proposing unilateral action in the face of congressional gridlock. It would be better if Congress would do its job. But at least in the context of executive orders we're speaking not of Marcus's slippery slope, but of the President's following precedents set by prior administrations, and proposing lawful orders that are consistent with existing law. When it comes to war, the Constitution attempts to create a clear framework for the separation of powers, with wars to be initiated by Congress. If you're going to pretend concern about a possible constitutional crisis, can't you give that one more than a shrug and a yawn?

Congress Needs to Do Its Job

Daniel Larison is writing about one of his pet peeves:

Virginia Sen. Tim] Kaine’s point [on Congressional abdication and presidential overreach] is well-taken, and this is one more reason why the war against ISIS needs to be debated and voted on in spite of the president’s pretense that he doesn’t need Congressional approval. It is profoundly wrong to commit the U.S. to military action without having first considered the merits of the operation publicly and deliberately, but there is something even worse. It is even worse to commit the U.S. to a war that isn’t necessary for American security whether Congress has gone through the motions of a debate or not.... [Kaine is correct that Congress mustn’t be permitted to keep dodging its responsibilities on matters of war, and presidents mustn’t be allowed to wage wars without Congressional approval, but it’s even more important that members of Congress break the habit of signing off on the latest elective war. It is Congress’ habitual deference to bad presidential judgment on matters of war that is even more appalling than its refusal to debate and vote on the wars presidents choose to start. That can’t be fixed without first reviving Congress’ role in the process, but simply getting Congress to debate and vote on these wars is also woefully insufficient.

When I read Larison's complaint about a Congress that refuses to debate war, or that is excessively deferential to requests for the authorization to start or continue a war, I couldn't help but think of Ross Douthat's complaint that the constitution will be ruined if a Democratic president follows the lead of past Republican presidents and achieves by executive order what Congress has failed to accomplish through legislation. The sort of, "Wars, drones, security state, black hole prisons, torture, whatever.... immigration is serious argument that, to me, represents the worst form of missing the forest for the trees. Congress can pass legislation in response to an executive order, often long before the order takes effect. Congress can't unstart a war.

There is no hypocrisy in Larison's criticism of President Obama. Larison has consistently argued against the type of overreach he describes in Obama's actions. He is an established opponent of military adventurism and wars of choice. He's correct, in my opinion, that the nation would be well-served by Congress doing its job, by not turning a blind eye to unilateral military action by the President or granting its blessing after-the-fact. Larison is unimpressed with past Congressional debates over war authorization, and understandably so, but I'm not sure what the remedy would be short of electing different representatives.

My first reacton to Douthat's over-the-top rhetoric on how immigration reform could destroy our way of life (I exaggerate slightly) was that it was another example of Douthat writing about something that he doesn't understand. The blog posts that follow his editorials sometimes suggest to me that he encounters the basic facts and competing interpretations for the first time only after he publishes an editorial, with his making a strong, subsequent effort to reconcile the facts with his already-established opinion. In relation to unilateral war action, I found this complaint about the President's decision to go to Congress before waging war on Syria:

It would be a good thing for the country if the older constitutional norms regained some force – if we declared war in cases where we now issue so-called authorizations for the use of military force, and issued authorizations in situations where presidents of both parties claim the power to act with no congressional blessing whatsoever. But when a constitutional power atrophies, it’s extremely unlikely to be restored through the kind of last-minute, poorly-thought-out, and self-undermining approach that the White House has taken in this case.

You see, in Douthat's mind the President should have spent months reminding Congress that it has a role in debating the wisdom of involving a nation in a war, and should not have surprised them at the last minute by suggesting that they fulfill their constitutionally defined role. Douthat carries on at some length about legality and morality, bou don't have to spend much time reading between the lines to see what Douthat is actually thinking: He supported intervention in Syria, Congress voted against it, and it was thus wrong for the President to have gone to Congress.

Going to Congress is entirely optional, and it’s what presidents do when they’re pitching wars that they themselves don’t fully believe in, and need to rebuild credibility squandered by their own fumbling and failed alliance management. What future White House would look at that example and see a path worth following?

You see, where the Congress specifically addresses and issue and dictates how wars are to be declared, it is nothing short of weakness for a President to give anything more than lip service to those requirements. That's certainly not what Douthat would want a future president to do. You only destroy the constitution by acting in a legal manner, consistent with its terms, in the face of Congressional inaction, and in a context in which Congress is free to legislate on the issue, not by ignoring its explicit terms and launching wars that cannot be undone.

Douthat also complains,

Ah, you might say, but if Congress actually votes the Syria authorization down, then future presidents will feel constrained by the threat of a similar congressional veto whether they want to emulate Obama or not. Except that it’s actually more likely that future presidents will look at a congressional rejection in the case of Syria and see a case for going to Congress even less frequently than recent chief executives have done.

The problem with that conceit should be obvious: Congress does not have to wait for an invitation before it takes up the issue. Congress can look at a crisis in a nation like Syria and, on its own initiative, take up the question of whether military intervention is appropriate. It can pass resolutions urging the President to act. It can pass authorizations giving the President the power to Act. Or it can do the opposite, using its power of the purse to withhold funding for military action that it deems unwise. The question of whether or not Congress acts is not one that is controlled by the President -- it's controlled by Congress itself.

Douthat closes with the same sort of trademark silliness that he used in his immigration editorial,

It is just possible, I suppose, that if Congress votes “no” on this resolution and then the president unwisely goes ahead with strikes anyway and then the House impeaches the president for violating his oath of office... and then the whole thing spirals out into a wild constitutional crisis that leaves this administration permanently crippled, the end result of that crisis could conceivably reshape the White House/Congress balance of power on foreign policy, and leave future administrations more constrained.

Turning briefly to the Constitution, Article I, Section 8,

The Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress does not need to wait for a president to invite it to participate in a decision to start a war, or to sit on its hands until a president ignores its refusal to authorize war. It can initiate impeachment proceedings any time a president launches a war without its authorization. Congress has done its best to avoid having to take up its constitutional duties, from passing the War Powers Resolution, an ostensible check on presidential power that is effectively treated as a delegation of constitutional responsibility, to allowing the President to declare that pretty much any military action taken by the United States -- even an action explicitly targets a single country for invasion with the purpose of removing and replacing its leadership -- as a "police action".

Whatever temptation might exist to suggest that what we're looking at is a political debate, with Larison supporting a framework that limits international adventurism and Douthat embracing a President's right to unilaterally engage in that sort of adventurism in the role of "world policeman", the text of the Constitution plainly favors Larison. At the same time, it's difficult to avoid seeing Douthat's positions as being driven by anything other than politics. When it comes to war, he doesn't seem to care what the Constitution says, and if anything he is concerned that a president's respect for the Constitution would be too constraining. When it comes to the issuance of executive orders that are consistent with both the law and Constitution, at least when he opposes the outcome, taking action by executive order usurps the authority of Congress and threatens our system of government (never mind that, at all times, Congress remains free to act).

At the end of the debate, though, it boils down to the same fundamental issue: If Congress cannot or will not do its job, the President is likely to look for ways to act unilaterally. In my opinion it's worse in a context like war powers, where Congress has a clear, constitutionally defined role and, instead of fulfilling that role, effectively encourages the President to act unilaterally. Congressional deference to the President on matters that arguably should have required a formal declaration of war did not begin in the 20th Century -- it's a long-standing problem that became particularly glaring when Congress allowed presidents to launch the Korean and Vietnam wars as "police actions". Larison can complain that the President is operating under a pretense that he does not need Congressional approval for military action in Syria, but it's only a pretense if Congress is willing to act. If Congress won't call for a vote, and won't impose any consequence on unilateral action by a President, then (constitutionally or not) Congress has effectively delegated its war-making power to the President. Douthat can whinge that the President should not engage in perfectly lawful action to bypass Congressional gridlock, but again it's only an issue if Congress refuses to act.

Either way, nothing is going to change until Congress decides to start doing its job.

George Will's False Constitutional Dichotomy

George Will offered a recent lecture on the U.S. Constitution in an editorial that falls victim to one of Will's trademark logical fallacies, the hollow man. Will suggests that he borrowed his argument from a book by Timothy Sandefur, who Will characterizes as conservative but who is more commonly and accurately described as libertarian,

The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when "instituted" to "secure" natural rights.

The hollow man argument is one in which you ascribe to those who don't share your view a position that few to none of them hold, but that is easily batted down. Such a demonstration is usually followed by vigorously patting oneself on the back. Will departs from his traditional hollow man arguments, in that rather than simply making up a position he ascribes to liberals or progressives, here he has borrowed Sandefur's. Nonetheless, I think he would be hard pressed to find an appreciable number of progressives who blurt out, "Democracy!" when asked to identify the purpose of the Constitution, let alone the constrained concept of Democracy that Will presently deplores.

Further, to the extent that some of the political left might blurt out "Democracy!", so might some on the political right. Consider, for example, this guy:

After half a century of misconstruction, the First Amendment cannot be helped by a piddling-fiddling amendment about the flag. It needs serious thought about why the Amendment's framers, who used words more carefully than the court does, used the word "speech" rather than "expression." The answer is that speech, meaning the use of words, is the sine qua non of reasoning and persuasion, and hence of democratic government. Democracy is, after all, the point of the Constitution, to which the Amendment is appended.

The person who wrote that essay was also not so keen on the elevation of individual rights over those of the community,

[Both flag burning and abortion] involve a particularly American tension between the values of individualism and community. Actually, the rights of communities are so attenuated that there is not nearly enough tension....

The fundamental problem is a social atmosphere saturated with a philosophy of extreme individualism. In many manifestations this philosophy is anti-democratic because it overrides the right of the community to speak and act. This philosophy has been absorbed by many judges, including some so-called conservatives, who have supported the assault on the rights of the community.

In short, a younger George Will thought it absurd that the constitution might be construed to protect symbolic speech, as opposed to words that flow from your mouth (or from the printed page), and was contemptuous of giving constitutional protection to reproductive freedom. He saw the core of the Constitution as being about democracy, and was disdainful of the elevation of individual rights over constraints that the larger community wished to impose. He openly questioned the conservative bona fides of those who advanced individualism over community. It's possible that Will changed his mind, although his writings do not suggest an actual evolution of thought. It seems more likely that he forgot his past words, written in what he likely believed to be a time of conservative ascendency, and that his present position is inspired by his fear that the Republican Party is on a downward trajectory. After all, democracy is more fun when you're winning.

Contrary to Will, I don't believe that if you asked random liberal and conservative voters, "What is the purpose of the Constitution", you would get a majority of liberals arguing "to protect democracy" or a majority of conservatives aruing, "to protect individual rights". I also think that, whatever the initial response, both groups would acknowledge that the Constitution does, in fact, protect both democracy and individual rights. I think he would find vanishingly few people in either faction who would articulate the conception that democracy is a "process" and that individual liberty is a "condition".

The essential argument advanced by Will, paraphrasing Sandefur, is unconvincing:

Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, "spaces of privacy" that government chooses "to carve out and protect" to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.

Sandefur works for an organization that actively opposes eminent domain, and that appears to color and perhaps dominate his perception of this divide. After all, the most notable cases of eminent domain have occurred in urban areas in the name of urban renewal, and it follows that a lot of the governments advancing that renewal are Democratic.

There is a problem within that sphere, in that many Democrats are not comfortable with the government taking private property for a public purpose, particularly a nominally "pubic purpose" that involves handing seized land over to private developers. But more than that, when you move outside of that narrow sphere, the conceit collapses. When it comes to protecting the rights of marginalized and disenfranchised groups, progressives have consistently taken the lead. When the left embraced the civil rights movement, the Republican Party embraced the Southern Strategy. In the present push for equal rights for gay Americans, leadership comes almost exclusively from the left and resistance almost exclusively from the right. When it comes to reproductive freedom, it has not been the Republican Party that has taken the position that "individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified". Quite the opposite.

Will embraces an odd argument, advanced by Sandefur, that you should derive your beliefs about the Constitution's purpose not from the Constitution itself, but from the Declaration of Independence,

The Constitution is the nation’s fundamental law but is not the first law. The Declaration is, appearing on Page 1 of Volume 1 of the U.S. Statutes at Large, and the Congress has placed it at the head of the United States Code, under the caption, “The Organic Laws of the United States of America.” Hence the Declaration “sets the framework” for reading the Constitution not as “basically about” democratic government — majorities — granting rights but about natural rights defining the limits of even democratic government.

Alright, then, let's take a look:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Is it actually possible to read the Declaration of Independence and miss its emphasis on democracy and the consent of the governed?

I do have some sympathy for some of Sandefur's arguments, as stated by Will. In Will's formulation, which I am accepting as accurate, Sandefur deplores the manner in which the Privileges and Immunities Clause of the Fourteenth Amendment was effectively written out of the Constitution by the Supreme Court. I also appreciate Will's argument that the purpose of the constitution is not to leave the rights of the individual to the mercy of the strong, although I again have to note that, outside of certain narrow spheres, the protection and advancement of individual rights has been largely a concern of the political left. I'm impressed that Will has moved away from his past narrow textualism, now arguing that an "individual’s natural rights... include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment", and I would be pleasantly surprised if Will revisited some of his past positions in light of his new understanding of the Constitution.

I'm not sure what to make of Will's embrace of judicial activism,

Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.

Is Will acknowledging the obvious: that much of what has occurred in recent decades in advancement of conservative causes has involved rampant judicial activism by Republican-appointed judges? Is he embracing the notion of a "living constitution", one that should not be interpreted by its actual language but should instead be interpreted consistent with a contemporary view of individual rights? By what measure are courts to decide cases, in the process upholding and defending the Constitution, if not the language of the Constitution? Perhaps Will is arguing that he sees a great need for conservative judicial activism as a counter to democracy, not so much to protect individual rights as to protect his conception of conservatism from voters who keep electing Democrats.

Pat Buchanan's Fantasy of... His Own Private Idaho?

Pat Buchanan, after describing how nations that had been part of the USSR reclaimed their national identities, and in some cases balkanized afterward, and carrying on for a bit about various secessionist movements in Europe, conflates the secession of a region to create a new, independent nation state with the redrawing of political boundaries within a nation state.

What are the forces pulling nations apart? Ethnicity, culture, history and language—but now also economics. And separatist and secessionist movements are cropping up here in the United States.

While many Red State Americans are moving away from Blue State America, seeking kindred souls among whom to live, those who love where they live but not those who rule them are seeking to secede.

Buchanan appears to be conceding that the primary driving forces behind these secessionist movements, foreign and domestic, are ethnicity and culture. In the context of ending a civil war between ethnic groups with the bloody partitioning of a country, it's not really surprising that ethnicity and culture play a role in that division - it's to be expected. But there are no similar crises within the United States. Buchanan may be correct that the citizens of the regions he describes later in his editorial are concerned about protecting their ethnicity and culture, but perhaps the real problem is that they're too resistant to getting on board with the proverbial "great American melting pot".

The five counties of Western Maryland—Garrett, Allegheny, Washington, Frederick, and Carroll, which have more in common with West Virginia and wish to be rid of Baltimore and free of Annapolis, are talking secession.

I found Ilya Somin's "vote with your feet" concept to be a bit ridiculous, but I have to say Buchanan's idea is far more precious. Why move across a nearby state line when you can instead move the state line? Buchanan has given no apparent thought to the permanence of such an arrangement. Does he anticipate that states will trade counties like kids trade baseball cards? (Perhaps I should say Yu-Gi-Oh? Kids, it seems, have their own cultural secessionist movements every decade or so.) Perhaps he imagines a context in which any number of people who claim to be disgruntled with their state government can split off and form their own state? Could I be my own state, and perhaps serve as both senators?

Buchanan has something dead wrong in his earlier secessionist argument, suggesting that economics are now driving European secessionist movements. To the contrary, economics tend to hold back peaceful secession. When you live in a small, rural area you gain considerable advantage by being associated with a larger, more economically developed state. Such regions usually receive massive subsidies from their states, sometimes direct, and often in the form of government enterprises that exist only by virtue of state funding. Buchanan states,

Folks on the Upper Peninsula of Michigan, bordered by Wisconsin and the Great Lakes, which is connected to lower Michigan by a bridge, have long dreamed of a separate state called Superior. The UP has little in common with Lansing and nothing with Detroit.

I'm not sure what Buchanan means by "The UP has little in common with Lansing", or if he even knows what he means. Or Detroit, for that matter, unless it's as basic as "skin color". Economically, many parts of the UP are quite comparable to Detroit. Baraga County in the Upper Peninsula has an 18.3% unemployment rate - comparable to Detroit's. Dependence upon public assistance is high. What keeps the UP's unemployment rate from being even higher? Six of the UPs fifteen counties are home to state penitentiaries, with the good-paying jobs that go along with them. The UP also benefits from the state's promotion of tourism, it's leading industry. A separate state of "Superior" would have to pay its own way, which may be part of why the most feverish part of the "long dream" of which Buchanan speaks broke in the 1970's. Also, given how easily Democratic Senator Debbie Stabenow carried the UP, perhaps the political culture is not as removed from the rest of the state as Buchanan imagines. I wonder if Buchanan even knows about the Mackinac Bridge?

In any event, even if Buchanan's worst case scenario unfolds, and we have another G.W. Bush-type President or continued incompetent House leadership by the likes of John Boehner, such that "another Great Recession hits or our elites dragoon us into another imperial war", and we "hear more of such talk", so what? It's a pipe dream. Nothing is going to come of it. I guess it's a bit more peaceful than the violent, genuinely secessionist fantasies of some of Buchanan's more extreme peers, but let's face it: We're not going to allow small regions to form their own states, we're not going to give five sparsely populated counties of Maryland or nine similarly rural counties of Colorado statehood, along with a minimum of two U.S. Senators and three Members of Congress. And beyond the fantasy, counties that enjoy being heavily subsidized by their urban peers tend to wake up at some point to the reality of what their tax bills and public services would look like if they actually carried their own weight.

Just Add the Word "Republican"...

Daniel Larison is not impressed with Michael Gerson's argument on why Congress needs to authorize force in Syria:

Insofar as the ability of future presidents to wage wars of choice on their own authority would be limited or even slightly constrained by a no vote from Congress, that would be a welcome and very desirable outcome. Gerson is drawing attention to one of the possible benefits of the resolution’s defeat. Even so, the president would retain enormous latitude in the conduct of foreign policy, and he would he hardly have his “hands tied behind his back.” It is laughably false to claim that the president’s ability to conduct foreign policy or his role as commander-in-chief of the armed forces would be seriously impaired, and it could hardly be dangerous for the powers of the presidency to be restrained after growing virtually unchecked over the last forty years.

Gerson’s argument is an attempt to blackmail members of Congress by claiming that they will inflict massive institutional damage simply by carrying out their own constitutional responsibilities and by reaching a conclusion different from the one Gerson wants. It is a fairly desperate move, and it is the sort of argument that should make more members of Congress recoil from what they are being asked to support. Gerson is horrified that Congress might actually vote down unnecessary and deeply unpopular military action, which speaks volumes about his priorities. Americans should not be afraid to let their representatives do the work they were elected to do by speaking and voting on behalf of their constituents. In this case, that obviously means voting down the resolution, and that is what I hope most members will do when it comes up for a vote later this month.

As happens all too ofter, Gerson's editorial is risible from top to bottom,

Obama is inviting members of Congress to share responsibility for a Syrian policy that has achieved little to justify their confidence. In fact, he has undermined political support for the legislative outcome he seeks. For more than five years, Obama has argued that America is overcommitted in the Middle East and should refocus on domestic priorities. Now he asks other politicians to incur risks by endorsing an approach he has clearly resisted at every stage.

Gerson would apparently have us believe that the President has spent five years resisting Republican calls for additional military intervention in the middle east, and has reached the point where he has actually convinced the Republicans in Congress that "America is overcommitted in the Middle East and should refocus on domestic priorities". Oh, their poor heads must be spinning, having spent five years giving the President a fair, deferential hearing and now, just when they had decided that there was no situation grave enough to justify additional military action in the Middle East, being told that there actually are situations in which the President believes that military intervention is appropriate.

Obama attempts to rally the nation around a reluctant exception to his ambivalence. And this exception — a calibrated punishment for the use of chemical weapons — seems more of a gesture than a strategy.

Gerson proposes instead, what... the George Mallory philosophy of military intervention?¹

Gerson does not want the President to have completely unlimited discretion to attack any nation in the world without the consent of Congress:

This does not, of course, amount to blanket permission for self-destructive military actions such as attacking China or surrendering to Monaco.

But, you know, short of that.... As long as it's some other nation that is being destroyed, Gerson's "compassionate Christian" perspective seems to be, "Go for it!"

Nations such as China, Russia and Iran would see this as the triumph of a political coalition between the peace party of the left and the rising isolationists of the right. And they would be correct.

They would be correct because... they're stupid?

Larison suggests, "There is no way to know what long-term effect the defeat of the Syria resolution might have on the actions of future presidents, and it is even less certain how other governments would interpret a Congressional rejection of the resolution", and that's true to a point, but history suggests an answer: The next President will not feel bound to follow the policies or priorities of the current administration, and foreign nations understand the difference between a nation led by Ronald Reagan vs. George H.W. Bush vs. George W. Bush vs. Barack Obama.

One might anticipate that foreign leaders will look at the past five years of Congressional obstructionism, and then look at the fact that it was the Republicans who were blocking military action, and conclude, "More than a half-century after the start of the Vietnam war, hacks like Gerson still believe they can sell the Democrats as a 'party of peace'? And given that same history, that 'isolationists of the right' will have any influence the day after the next Republican President takes office? Seriously?"

And those who claim that this credibility has already reached bottom are lacking in imagination.

I suspect that most of those who read Gerson know that the President and Congress have a long way to go before reaching bottom.

Try reading Gerson this way:

[Repubican] Legislators are not arguing between preferred policy options, as they would on issues such as health care or welfare. They are deciding if they will send the [next Republican] chief executive into the world with his hands tied behind his back.

As in, the next President might feel compelled to consult Congress before acting, the Democrats might feel free to vote against military adventurism, and war opponents would be able to point to any number of comments made by Republicans in the present debate that suggest naked, partisan hypocrisy. Gerson's mistake,² of course, is assuming that the next President is going to care.

Really, the best argument Gerson can make for a military assault on Syria is that if Congress evaluates the situation and finds an attack to be inappropriate, future Presidents might hesitate before launching wars of choice, and the world will scoff, "The United States isn't going to attack us unless they have a UN mandate, a NATO mandate, a Congressional mandate... or the President feels like it"? The horror!
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1. "Why do you want to attack another country in the Middle East, Mr. President?" "Because it's there."

2. Or should I say, one of them.

Public Criticism of Verdicts

Jeralyn Merritt sometimes goes a bit overboard:

The Bill of Rights was designed to protect the rights of the citizen accused from the awesome powers of the Government. It was not enacted to protect the rights of crime victims.

The presumption of innocence is a bedrock of our criminal justice system that applies to the person charged with a crime, not the victim of a crime.

Self-defense is an affirmative defense that may be raised by a defendant in court in response to a criminal charge.

When partisan politics threatens the Bill of Rights, progressives especially need to get their priorities straight: The Bill of Rights must prevail. Those who disagree do a disservice to the word "progressive." Their backwards thinking is just the opposite.

Merritt has blogged extensively about the Zimmerman prosecution, and she practices criminal defense, so it's reasonable to infer that she's aware of the following:

1. When a defense is available to a defendant as an affirmative defense, the defendant has the burden of proving facts sufficient to support the defense, normally by a preponderance of the evidence.

2. In Florida, a claim of "self-defense" is nominally an affirmative defense, but once the defendant presents any evidence of self-defense, even the defendant's own self-serving statement, the state has to disprove affirmative defense beyond a reasonable doubt.

3. There is no constitutional right (a) to a "stand your ground" rule of self-defense, (b) to have the state disprove your claim of self-defense, or (c) to the ability to raise self-defense at all in most contexts in which the state deems such a defense to be inappropriate.

Merritt asserts,

Trials are conducted in courtrooms, not living rooms. The public has a right to view the proceedings. It does not have a right to inject its opinions into the proceedings or affect the outcome. The jury must base its decision only on the testimony and evidence produced at trial and the law as instructed by the judge. Morality has nothing to do with it.

The Sixth Amendment guarantees a defendant the right to a fair trial by a impartial jury. The jury is composed of the six people selected in court after a rigorous process designed to exclude those who cannot be fair. The public is not a member of the jury. It has no vote. Which is a good thing because the vast majority of the public commenting on this and every other high profile trial are all too willing to take an eraser to the Constitution and condemn a person, without having observed the proceedings from start to finish, viewed the exhibits admitted or read the jury instructions.

Merritt has seemingly forgotten that nobody outside of the courtroom owes the defendant a presumption of innocence, and that it is in fact possible for somebody outside of the courtroom to look at a case and conclude that justice was not served.

Taken at face value, who can argue? The public has no right to "inject its opinions into the proceedings or affect the outcome." But the trial is over, criticism of the verdict has absolutely no impact on that verdict.

Merrett seems to have no problem with criticism of a verdict following a conviction. I doubt that Merrett would condemn critics of the wrongful acquittals in the Emmett Till case or other lynching cases . We, outside of the courtroom, do have the right to criticize the conduct of a jury, the procedures followed in a case, and the laws that we believe (rightly or wrongly) led to an unjust verdict.

The right of self-defense is a limited right emerging not from the language of the Constitution itself, but from common law. There is no question that it would be constitutional for the State of Florida to follow the practice of most other states and place the burden of proof for self-defense on the defendant. Were the State of Florida to pass a law that holds that under circumstances in which a person armed with a gun engages in any course of action that culminates with his shooting an unarmed person outside of his his own home, that person cannot claim self-defense or may do so only to mitigate the charge and not to obtain an acquittal, there's a good chance that the law would be held constitutional.

Had Zimmerman been required to prove self-defense in the same manner that is typically required in other states, odds are he would have convicted himself with his own testimony or would have convinced a lot more people of his sincerity. Given Zimmerman's past statements about the case, and the contradictions and holes in those statements, it was anything but a surprise that he chose to stay off of the witness stand. Those holes and inconsistencies don't necessarily establish guilt, but they represent a big part of why a shadow remains over this case.

Whether a person commenting on the verdict has scrupulously reviewed all of the available evidence or is talking through his hat, it's that person's right to look at a verdict and declare, "An injustice was done here, and we need to think about changing the law so that it doesn't happen again - or at least to ensure that it's a lot less likely to happen again." If a sufficient groundswell of opposition to the verdict arises that we have a public policy discussion, that's normally going to be a good thing - even in those situations where people who know the details of the case often find themselves frustrated by how little the general public knows of the actual facts.

Movement Toward Gay Marriage and the Myth of Roe v. Wade

Although I rarely find Charles Krauthammer to make a meaningful contribution to a public discussion, and his column on the DOMA decision isn't really an exception, he is repeating some unimpressive arguments raised often enough that it may be worth attempting to push them back. Before I get to the current column, I'll travel back in time seven years to some of his prior musings on the subject. Back then, Krauthammer was pushing the anti-gay marriage canard that if you allow gay marriage it inevitably follows that you should legalize polygamy:

In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

Right there, Krauthammer give us pretty much all the evidence we need that his thinking on this issue is weak, and that he doesn't understand the legal issues involved in the case. I don't want to assume to much, but I would hope that even Krauthammer would concede that to apply a similar argument to anti-miscegenation laws would be an "epic fail".

After all, if traditional marriage is defined as the union of (1) two people of (2) the same race, and if, as advocates of interracial marriage insist, the race requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

I know that opponents of marriage equality argue vociferously that "allowing gay marriage is completely different from allowing interracial marriage", but the reason that comparison comes up is because of arguments like Krauthammer's. By his "logic", there is no distinction - if you don't allow discrimination in which of two, unmarried adults can get married, you cannot defend restricting the institution of marriage to two unmarried adults.

The response of many opponents of gay marriage is that being gay is not a protected category - it's not on the short list of factors that the state is supposed to scrupulously avoid using to discriminate between citizens - and thus the reasoning behind Loving does not extend to gay marriage. That because the discrimination is not based upon a protected class such as race, religion, national origin, color, (in their opinion) sex, or another such category, that the courts should not concern themselves with the question. Krauthammer does not appear to be working from the "protected category" argument, because "married vs. unmarried" isn't on that list.

The language of DOMA permitted the Supreme Court to resolve the case from a different angle - that Congress intruded into an area of law traditionally left to the states (domestic relations) in order to impose restrictions and disabilities on a class of people, and thus ultimately violates basic due process and equal protection principles applicable to the Federal Government. What frightens opponents of marriage equality is that the court all but said that there is not even a rational basis for opposing gay marriage - that should the issue be squarely raised. Given that the two leading arguments against gay marriage (and you'll forgive me if I missed a third)¹ are "tradition" and various forms of "gay sex is icky", it's not surprising that they are concerned that a future court might find there to be no rational basis for the continued state-level prohibition.

Perhaps Krauthammer accepts that the arguments against gay marriage are fundamentally weak. Perhaps, like many gay marriage opponents, he starts channeling Rick Santorum - never mind that the same "slippery slope" argument applies to anti-miscegenation laws (and were probably applied to that particular marriage equality argument in certain parts of the country). The slippery slope argument can be raised about any change, and its use is usually fallacious. In this particular instance, no surprise, it is fallacious.

We can start with this: When you have two unmarried individuals, the marriage contract is between them and them alone. If you then say, "We don't care if you're married already, you are free to marry an additional spouse," you risk infringing the rights of the existing spouse. And if you require that spouse's knowing consent to the new marriage - or should I say, all spouses - you're conceding a significant difference between the marriage of unmarried people and the marriage where one or more of the parties to the marriage is already married. Adding additional spouses is not, as Krauthammer blithely asserts an "individual choice" because the marriage already involves more than one individual. States have created bodies of law addressing the rights and duties of married couples, property division upon divorce, child custody upon separation or divorce, what property is part of the marital estate, pension and inheritance rights, access to health insurance benefits, taxes, housing laws, eligibility for social services.... When you add additional parties to the mix, every single one of those laws would need to be revisited and would become ridiculously complex.

There's a reason why the few nations that permit polygamy restrict that right to the male partner, and given him most of the rights within the marriage including in relation to assets and the children - because once you move toward an egalitarian arrangement it becomes extraordinarily difficult to create legal institutions around multi-partner marriages. In those cultures, the marriage is a constant that revolves around the man. Women can enter or leave the marriage. But if you attempt to create egalitarian multi-partner marriages you create a context in which the marriage can continue even after one or more partners leaves. You could end up with a marriage in which the original parties to the marriage are no longer involved, a 'divorce' that creates two or more new 'marriages' in its wake, and claims to custody or visitation from a wide assortment of moms and dads.

If you're not willing to directly address the weakness of the argument for proscribing gay marriage, perhaps it's not surprising that you've given even less thought to the weakness of the slippery slope argument you throw up as a shield. But whether or not you support polygamy, you cannot avoid the fact that there is a rational distinction between categorizing people as "married" versus "unmarried", and you cannot avoid acknowledging the complexity of rebuilding our nation's laws to accommodate marriages involving multiple parties.²

Krauthammer agrees that gay marriage poses no threat to "traditional marriage", so his argument really is one of fairness,

Posit a union of, say, three gay women all deeply devoted to each other. On what grounds would gay activists dismiss their union as mere activity rather than authentic love and self-expression?

That's a group choice, not, as he earlier posited, an individual choice. Here, Krauthammer is shifting the question from "is there a rational basis for the state to treat unmarried people differently from married people" to "If we allow gay marriage, is it unfair to people who want polygamous marriage." The "logic" here appears to be that it's better to be unfair to large numbers of people than it is to be unfair to smaller numbers of people, without regard to whether the distinction can be explained or justified - and that argument ultimately betrays the fact that Krauthammer's argument lacks a logical foundation. His argument boils down to, "It may be unfair to gay people to not allow them to marry, but allowing gay marriage would not end the unfairness to polygamists that they can't engage in multi-partner marriages, so we shouldn't do it.

As for gay marriage, I've come to a studied ambivalence. I think it is a mistake for society to make this ultimate declaration of indifference between gay and straight life, if only for reasons of pedagogy. On the other hand, I have gay friends and feel the pain of their inability to have the same level of social approbation and confirmation of their relationship with a loved one that I'm not about to go to anyone's barricade to deny them that. It is critical, however, that any such fundamental change in the very definition of marriage be enacted democratically and not (as in the disastrous case of abortion) by judicial fiat.

"...if only for reasons of pedagogy"? How... compelling. To me, that does not sound like an expression of "studied ambivalence" - it sounds like a preference for the status quo and the willingness to disregard the consequences of his policy preferences on any class of people who aren't Charles Krauthammer. As for the conclusion about judicial fiat... call it foreshadowing.

For a guy who wants us to see him as "ambivelent" on the subject of gay marriage, Krauthammer seems to have little conflict - beyond that one-time nod to the pain suffered by his "gay friends", but all of his arguments come down on the other side. For example, he imagines that gay marriage will lead to a "war on religion", picturing a religious college that is sued for denying a married, gay couple the opportunity to live in married student housing. Never mind that the school could avoid being a casualty of this imagined war simply by refusing federal money - a notion that I guess Krauthammer finds far more disturbing than discrimination against gay couples. Krauthammer complains, "It will be sued everywhere in the country if it’s declared to be a constitutional right, because it would imply that anybody who opposes it does it only out of bigotry, for no other reason". Given that the only other reasons for opposing gay marriage that Krauthammer has acknowledged are "pedagogy" and that "allowing gay marriage would be unfair to polygamists"... I suppose he makes a valid point. To assume that all marriage opponents are anti-gay bigots can be said to be making the mistake of attributing to malice something that at times will be better explained by ignorance.

Krauthammer's ambivelence is cast further into doubt by his recent column on the subject. Krauthammer proposes that there are only two possible grounds for holding DOMA to be unconstitutional, federalism and leaving the institution of marriage to the states, and equal protection. Krauthammer sees the two justifications as irreconcilable, and thus that it's inevitable that the Supreme Court will rule that all states must allow gay marriage. I'm not sure whether I should take that to mean that Krauthammer is implicitly conceding that there's no rational basis for laws prohibiting gay marriage, or if he's unable to fathom why the court does not find "reasons of pedagogy" to be an adequate basis for discrimination.

From a technical standpoint, Krauthammer is conflating a decision holding that the federal government cannot arbitrarily curb the rights of a group of people with an emphasis on interstate recognition of marriage, with state legislation that is entirely intrastate in nature. Krauthammer complains about equal protection,

In states with same-sex marriage, Washington must give the same federal benefits to gay couples as to straight couples because to do otherwise is to discriminate against the gay couples. After all, they are equally married in their states. For Washington to discriminate against them is to deny them equal protection of the laws. Such discrimination is nothing more than irrational animus — and therefore constitutionally inadmissible.

Except the Supreme Court was commenting not on state laws for or against gay marriage, but on a federal law that targeted married gay couples and stripped them of a basic legal protection - to have their lawful marriages respected by other states. As the Court put it, "The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law." There's nothing inherent in the Windsor decision that removes from a state the right to forbid same sex marriages within its borders - but that state will no longer have a federal statute that it can point to as a justification for disregarding the validity of gay marriages lawfully entered in other states.

In other words, Krauthammer's argument only holds if he believes that there are no better arguments for opposing gay marriage than those proposed by the defenders of DOMA. I'm not sure if I should take this as an implicit abandonment of his notion that gay marriage can be forbidden "for reasons of pedagogy", but it's safe to infer that he does not expect the Supreme Court to find a law premised upon his position to have a rational basis.

As Krauthammer sees it, the problem with this decision is that it paves the way for a future decision that will require all states to permit gay marriage.

Which is exactly where the majority’s [equal protection] rationale leads — nationalizing gay marriage, the way Roe nationalized abortion. This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling. He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

I know there's a "conventional wisdom" that holds that but for the opinion in Roe v. Wade we would have had a national debate that would have led toward reproductive freedom across the country, and that the reason we have a continued debate over abortion rights is because the Supreme Court cut that debate short. The only problem with that argument is, well, everything. Roe v. Wade is controversial because it's at the center of the abortion rights debate, but despite decades of controversy and opprobrium it was, is, and remains consistent with public opinion. To the extent that Roe foreclosed part of a debate, it was not the part that would lead toward the expansion of reproductive freedoms for women, it was the effort to restrict and outlaw abortion procedures. Scott Lemieux argues,

In general, the comparison of abortion politics before and after Roe v. Wade is most consistent with the expectations held by skeptics of judicial exceptionalism. Clearly, the legitimation hypothesis is not applicable in the abortion case. The court’s intervention certainly did not resolve the abortion issue in any meaningful sense, and the public certainly did not accept the court’s verdict as the final word on the issue. On the other hand, there is also little evidence that the court’s action would have produced more countermobilization than a similar policy enacted by Congress or state legislatures. The pro-life movement was a powerful force before Roe, and the decision did not demonstrably change either the tone of abortion discourse or the distribution of public opinion on the issue. There is no evidence, specifically or generally, that policy-making by the courts is thought of as inherently illegitimate by the public. It should be re-emphasized that these empirical findings do not mean that there was no countermobilization against Roe.... Certainly, abortion politics are more salient at the level of presidential politics in 2003 than they were in 1972 when George McGovern declined to take a position on the issue. The comparison of abortion politics before and after Roe, however, compels the strong inference that it is the nationalization of abortion politics represented by Roe, and not the legalization of [abortion], that is the key variable in explaining this shift. Hypothetically, had Congress passed (and been constitutionally able) to pass legislation with similar policy content, there can be little question that abortion would have become a more salient issue in presidential politics as well.

Lemieux's argument, as exemplified by his reference to McGovern, is also consistent with the fact that it was not until the Reagan era, and its effort to turn the religious right into a permanent Republican voting bloc, that being "pro-life" became a litmus test in the Republican Party.

Krauthammer is not demonstrating concern that this theoretical cut-off of debate predicated by decisions like Roe or Windsor will prevent the development of abortion rights and gay marriage as national legal rights. For example, if he's truly concerned about federalism, why didn't he blow a gasket about DOMA, a law that allowed state legislatures to avoid trying to create laws and policies consistent with their own constitutions and the U.S. Constitution. What meaningful debate did we have in the decade after the passage of DOMA?

Krauthammer's selective focus on court decisions that lead toward gay marriage, and his (at best) disinterest in state and federal legislation and ballot initiatives that attempt to impede or prevent movement toward gay marriage, suggests that his opposition is to the expansion of rights and not to the means by which those rights are expanded or protected. In this specific case it seems less that Krauthammer's actual objection is to the fact that the Supreme court intervened, and is more to the fact that he is unable to articulate a single reason why the Court's decision was incorrect.
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1. A third argument might be, "If gay marriage is allowed, the result will be to weaken the traditional institution of marriage." The primary problem with that argument is that there's no evidence to support it, not even from jurisdictions that permit gay marriage. If you don't care whether your argument is supported by evidence, you could as easily argue that gay marriage will bring on a Martian invasion. Either way, in the absence of evidence you're blowing smoke.

2. Krauthammer claimed, "This line of argument makes gay activists furious" - no, Charles, this is what "furious" looks like; odds are that was people pointing and laughing.

Collective Action - Aspiration vs. Reality

Charles Lane wrote a column recently in which he complained that "collective action" is overrated:

[T]he gist [of Mancur Olson's argument] is that large numbers of people do not naturally band together to secure common interests. In fact, the larger the group, the less likely it is to act in a truly collective manner.

As Olson explained, the interests that unite large groups are necessarily of the lowest-common-denominator variety. Therefore the concrete benefits of collective action to any individual are usually small compared with the costs — in time, effort and money — of participation. “Free-riding” is a constant threat — as the difficulties of collecting union dues illustrates.

By contrast, small groups are good at collective action. It costs less to organize a few people around a narrow, but intensely felt, shared concern.

Lane suggests that Olson's thesis is supported by the existence of lobbyists and "special-interest groups that swarm Congress", seeking favorable legislation. He also speaks as if this is a new thing, or that the recognition of diverse interests and competing factions didn't arise until Olson published his 1965 book.

I agree with the general thesis that, the larger the group, the more difficult it is to achieve consensus, and that the difficulty compounds as you try to achieve consensus on a greater number of issues or across a broad range of subjects. Lane is also correct that factions tend to look out for their own self-interest, "whether or not success comes at the larger society’s expense". Lane is correct that groups that self-select for a specific purpose (e.g., to lobby Congress for a favorable tax law, or a protectionist regulation that protects them from competition) can be effective at advancing their agenda. They tend to be even more successful when they are well-funded.

However, he runs into trouble when he attempts to turn his critique of collective action into a critique of stable democracies and, more specifically, the Obama Administration. Turning to a later book by Olson, Lane argues,

His paradoxical, and deeply depressing, conclusion: Political stability is a curse of sorts, because, over time, stable societies accumulate interest groups, with all the distortion and complexity that breeds. “On balance,” he wrote, “special-interest organizations and collusions reduce efficiency and aggregate income . . . and make political life more divisive.”

Lane diagnoses the United States with that "British disease", with too many factions looking out for their own self-interest, with the result that the bargaining table is "too crowded to agree on the problem, much less a solution."

But if we step back for a moment, the foundation of the Lane/Olson "British disease" thesis is weak. First, Britain's fall from its status as a dominant world power followed the collapse of colonialism and its involvement in two world wars. Over that same period the U.K. underwent a massive social transformation. Its likely that the social transformation did lead to a greater number of voices vying for the attention of Parliament, but Britain's decline began long before, under a class-based power structure that was far less responsive to many of those voices, so it's difficult to even find a meaningful correlation, let alone causation. To focus on an increased number of "special interests" while ignoring the economic drivers of Britain's shrinking influence is to miss the forest for the trees.

Further, if it is in fact true that older democracies become ineffecient due to their being overwhelmed by a proliferation of special interests, where can we find the modern, nimble democracies not yet weighted down by faction? France's Fifth Republic? Greece passed its most recent Constitution in 1975 - what should we make of that? Which of the democracies borne of the fall of the Iron Curtain are exemplars of the efficiency and lack of faction that Lane attributes to long-term stability?

In criticizing the President, Lane also misses the entire point of appeals to unity and collective action. It's not that the President is lacks "realism". It's that he, like every President who came before him, recognizes that you don't unify the people or inspire the type of solutions Lane claims he favors by telling the people, "We're hopelessly divided by faction, we have no chance of solving tough issues, so 'every man for himself,' 'good luck and thanks for all the fish.'" The notion of the people as a collective, pulling together, is part of the preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[note 1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Divisions among the citizenry, and the need to nonetheless pull together, have been part of presidential rhetoric from the time of George Washington:

Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.

But these considerations, however powerfully they address themselves to your sensibility, are greatly outweighed by those which apply more immediately to your interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the union of the whole.

Lyndon Johnson:

This is one nation. What happens in Selma and Cincinnati is a matter of legitimate concern to every American. But let each of us look within our own hearts and our own communities and let each of us put our shoulder to the wheel to root out injustice wherever it exists. As we meet here in this peaceful historic chamber tonight, men from the South, some of whom were at Iwo Jima, men from the North who have carried Old Glory to the far corners of the world and who brought it back without a stain on it, men from the east and from the west are all fighting together without regard to religion or color or region in Vietnam.

Jimmy Carter:

With God’s help and for the sake of our nation, it is time for us to join hands in America. Let us commit ourselves together to a rebirth of the American spirit. Working together with our common faith we cannot fail.

I suspect that Lane has been thinking about the issue of faction and how it impedes government action, and has a better column hidden somewhere inside his head, but made the poor choice of trying to build his case based upon a flawed thesis about the "British disease", presidential rhetoric that is consistent with that of every other president, and the conceit that the concept of faction and competing interests is relatively new to politics. Lane also overlooks the dark side of faction, with its "us versus them" thinking, and although he acknowledges "", he elides from his column any mention of wedge issues and the manner in which political factions and parties attempt to create and exaggerate differences between groups in order to prevent political change or progress. Sometimes it's the rhetoric Lane criticizes, that of unity and common interest, that allows for the type of change he claims to endorse.

Lane betrays his actual complaint when he engages in the language of his own faction, that of the Very Serious Person:

But the president’s paean to collective action lacked Olson’s realism. The question is not just how much more government we need or want, if any. It’s also how much more government we can afford, in light of its purposes and given the risks Olson identified — which have already materialized in the form of unsustainable but politically untouchable entitlement programs.

The question for Lane, though, is not how much government we can afford, because his faction is unconcerned with how government could provide the same level of service at a substantially lower cost. Were Lane to break out of the groupthink of his faction he would acknowledge (as has his paper) that the only government "entitlement" that is projected to be unsustainable is Medicare, while Social Security can be made sustainable for the indefinite future with relatively modest changes. Fixing Medicare? Lane's own newspaper doesn't think the problems are all that difficult to fix, but it's also telling that Lane isn't advocating the immediate, significant cost savings that could come from emulating the better national health insurance plans of other western democracies.

At the end of it all, Lane does a pretty good job of evidencing his larger point, that it's difficult to find solutions when people won't look past their self-interest. He grouses that the President isn't sufficiently serious about entitlement reform while failing to admit that President Obama keeps offering Reagan-style Social Security reforms that will keep its books in balance, despite the howls of factions on the left. He similarly ignores the fact that the Patient Protection and Affordable Care Act (Obamacare) attempts to improve the quality of Medicare while reducing costs, and that its cost-saving measures would be stronger but for the obstructionism and demagoguery of the Republican Party. And of course, he fails to note that Obama was ready to enter into a "grand bargain" with the Republicans on taxes, spending and entitlements but... the Republicans walked away from negotiations.

I can't argue with Lane's feelings - we would all feel better if the government stopped listening to anybody else, and honed in on what we, individually, believed to be in the best interest of the nation. I guess it needs to be said: that's not realistic.

If You Want a Balanced Budget....

At a bare minimum, you need to vote for politicians who are serious about balancing the budget. How do you know if balancing the budget is a priority to a politician? Ask him to produce his plan. A weak plan might sound like "We'll cut spending, and raise taxes if we have to." A stronger plan would identify some, most or all of the spending cuts and tax increases necessary to balance the budget. And if you hear something like this,

First, we cut taxes....

You can pretty much take for granted that you're being played for a fool. If the rest of the plan never gets more specific than "tax reform", "cut funding for PBS", and the like, but you choose to believe that the politician at issue is serious about balancing the budget, it's all on you. And if you hear that politician add, "The budget will be balanced in ten years," that is, two years into the next President's term, he's not actually promising to balance the budget.

At The American Conservative, Jordan Bloom expresses desire for a balanced budget amendment - and he's so eager to get it that he proposes what he describes as a "nuclear option", an Article V constitutional convention - to get one. I've commented on balanced budget amendments before - most of them... actually , all the examples I've seen... are weak, politically driven, full of loopholes.... The most sensible comment I've heard on the matter remains that of Warren Buffett - if you want a balanced budget, pass a law that sets a maximum threshold for a deficit and then bar any Member of Congress who votes for spending above that threshold from being reelected. Problem solved.

If you include loopholes in your balanced budget amendment, they will be exploited to the point that the amendment becomes meaningless and can be expected to distort the budgetary process. If you don't include loopholes, you tie the government's hands when deficit spending is necessary, you encourage the sort of budgetary shenanigans you see in state to pretend that a budget is balanced, such as balancing the current budget by shifting the debt into future budgets, and creating a context in which budgetary disputes could end up being litigated - do you seriously want a single federal judge to review and potentially revise the federal budget? Even if it were practically feasible, and could be completed in a timely manner, judicial review would intrude upon what is intended to be a legislative process. You could also inspire the government to expand the money supply - to balance the budget through tools that would trigger inflation.

Proponents of a balanced budget amendment often embrace the notion that the federal government's budget is analogous to a household budget, and that you should not spend more than you "earn". Lots of problems with that... not the least of which are that taxes are not analogous to income, there are times at which running a deficit can be necessary and others when it's good policy (ideally the two will mostly overlap), and the big picture is clouded by the deficit nobody likes to talk about - the trade deficit.

In the biggest picture sense, the concept that you cannot deficit spend forever - that you cannot indefinitely expand the debt burden at a rate that exceeds inflation, has merit. Yes, it would make sense for the government to work on the long-term fiscal health of the nation when the economy is robust, not to spend irresponsibly - or cut taxes irresponsibly - when they have the opportunity to move the budget toward balance or keep it there.

There are two main objections to the plan. The first is that one can never be quite sure what’s going to come out of a constitutional convention. The second is that a balanced budget amendment would probably mean in the near-term rapid austerity and arbitrary spending cuts. You know, like the fiscal cliff–a net deficit ameliorant–but bigger.

On the first front, not only could you end up with a constitution that's unrecognizable by historic measures, it might not even include a balanced budget amendment. On the second front, Bloom basically concedes the policy argument - a balanced budget amendment could put us into a cycle of a worsening recession followed by tax cuts necessary to counterbalance reduced government revenues and the right-wing horror story becomes reality - we become Greece.

It’s worth pointing out that had Romney won last night, this option would likely be closed – conservatives would be expected to believe that he would work to restore fiscal discipline (while increasing spending on wars and “preserving” Medicare).

Romney talked about balancing the budget, his actual promises did not encompass much more than cutting taxes (and PBS). If you believe his confused comments at the debates, the tax cuts were going to somehow be revenue-neutral, but he was unwilling to offer specifics. I do believe that he would have delivered his tax cuts, just as G.W. delivered the cuts he promised, as that's what his financial backers wanted him to do. The rest? Snake oil.

Let's Not Forget How the Game is Scored

In sport, a team that has reached a point at which it is guaranteed victory may hesitate to run up the score. A win is a win and, absent the opportunity to set a new record, genuine concern about a late comeback, or a similarly reasonable reason to do so, it's widely viewed as poor sportsmanship.

Politics isn't sport, but a win remains a win. Save for the possibility of a recount, the outcome of an election predicated on the popular vote doesn't change based upon whether you win by 1 vote or 1,000,000 votes. If one strategy gives you a 75% chance at winning with 55% of the vote, and another gives you a 90% strategy of winning with 51% of the vote, the latter strategy is the better bet. When Karl Rove dreams of a "permanent Republican majority", or at least a semi-permanent majority, while I'm sure he would be happy if it were 75% or more, or even 55%, he'll take 51%.

Let's also recall, the presidency is not decided based upon the popular vote. It's decided based upon the Electoral College, and the Republican Party is very much focused on preserving that institution. Not because they're truly worried about voter fraud, but because the manner in which electors are assigned to states and subsequently chosen by voters benefits them. Do away with the electoral college and even in swing states the focus will be on major population centers. If you're trying to maximize the popular vote, your priorities will be very different than if you're trying to maximize the electoral vote.

When you watch a football game and you see a score of 21-18, that's a close game. If you see a score of 21-9, not so close. But the first score may be three touchdowns versus six field goals, and the second three touchdowns versus three field goals. Would you be tempted to say that the losing team "really won" the first game and "really tied" the second, based upon the number of times each team scored? Well, if it's your team you might be tempted, but your friends are going to laugh at you if you try to persuade them that you're right.

The Electoral College works in a similar way. You get a certain number of electors for each state you win, mostly on a "winner takes all" basis. So you plan your victory based upon the number of electoral votes you can accumulate. You put enough resources into safe states to keep them in your column, but you focus your recourses on getting your supporters to the polls in the states in which you believe you'll win - or lose - by a narrow margin. When a state does not appear to be in play, it won't get much attention from either candidate - you don't want to waste time and money on a sure win or sure loss when you can better use your resources in a swing state.

When Kevin Drum lectures,

Liberals, you should rein in the triumphalism. Obama won a narrow 51-49 percent victory and the composition of Congress changed only slightly. This was not a historic vindication of liberalism, and it doesn't mean that we can suddenly decide that demography will sweep us to victory for the next couple of decades.

I thus agree in part and disagree in part. If there are people on the far left of the Democratic Party who believe that the nation is now ready for the roll-out of their agenda, they are in for a rude awakening. If the Republican Party gets its act together, it could be a bona fide contender in the next presidential race - and even if it doesn't it remains a serious contender for the midterm elections.

But...

Obama did not win "a narrow 51-49 percent victory". Assuming Florida certifies for Obama, as it is likely to do, he won a landslide 332-206 victory. Because the victory is not based upon "number of states one" or "percentage of votes case". The victory is based upon the number of electors won. Had the Obama team reallocated its resources, it could have lost the election while winning 55% or more of the popular vote. Frankly, Romney could have done the same thing, but would likely have been rewarded by an even greater loss in the electoral vote. So yes, remember the popular vote and that the nation is divided on a lot of important issues - but don't pretend that the popular vote is significant to, or somehow trumps, the result of the electoral vote as that's not how the game is scored and obviously that's not how the game is won.

A Lethal President?

Same as it ever was.

It's not that I don't appreciate the concerns raised by those who question the targeting of a secret list of enemies of the state, whether by drone or by commando raid. Those concerns are for the most part well-founded, and the issues will only become more pressing.

Drone technology will continue to advance. It's easy to imagine a future in which drones the size of birds or insects can be used to strike somebody who has been declared an enemy of the United States, with minimal chance of damage to anything or anyone beyond the target. But such an advancement would not resolve the question of who should be placed on a "kill list" or why, what due process should be available to a targeted individual, or how accurately the government determines who should be on the list. Similarly, the U.S. military is likely to increasingly rely upon special forces, and small, targeted raids, rather than full-scale land invasions.

As these trends continue, some questions wil become more pressing. Will improved drone technologies inspire a rapid escalation of the use of drones and the circumstances under which they're deemed appropriate? As drones continue to take the place of boots on the ground, will the temptation be to rely upon drones to kill people who could or should have been taken prisoner? Will the margins blur in relation to who is an appropriate target - terrorists and their sympathizers vs. the political leaders of rogue or enemy states? And as drone use is legitimized and expanded, what happens when other nations inevitably gain similar technology and start applying it to contexts that they deem equivalent to ours?

History implicates all of those questions, and then some, in relation to pretty much any protracted conventional or asymmetrical conflict, anywhere in the world. When under threat, developed nations with well-educated populations tend to tolerate, accept, even applaud the use of tactics that they once deplored - and perhaps continue to deplore when exercised by other nations. Indefinite detention without trial? Torture? Dismissing the Geneva Conventions as outdated relics? The Bush Administration's decisions on those issues were in many ways regrettable, but the U.S. was far from the first nation to rationalize that actions we used to describe as crimes and human rights violations were necessary to achieve the greater good.

Cato Institute Policy Scholar Jason Kuznicki's reaction to "kill lists" and drone strikes is about as strident as you'll find. He points out that the President's "kill list" can include U.S. citizens, even minors, "including within the United States. Including children sleeping peacefully in their homes."

If Obama wanted to, he could put all of Mitt Romney’s delightful, gingham-clad grandkids on the kill list, then send commandos to kill them (or drones, it hardly matters). He wouldn’t need to show any cause, and no one could stop him or tell him otherwise.

Do not say that he wouldn’t. Of course he wouldn’t. The problem is that someone else might. And that’s enough.

Kuznicki declares,

Yet the very act of claiming the power also calls into question anyone’s good judgment. How exactly does someone conclude that he, personally, deserves the unchecked power of life and death? I couldn’t. I would be ashamed to show my face in front of you or to call you my equals. I might be a god or a beast, but not a man in a society.

I'm not going to argue that it's a job I would want. It isn't. But although the mechanism has changed, what Kuznicki is describing has been part of the President's job from day one. Every armed conflict, domestic or abroad, involved strategic decisions that may prioritize destroying a block of buildings or even a town or urban area in order to harm the enemy's ability to produce weapons, mobilize, feed its troops, or may even be justified by the belief that a "high-value" individual is in the targeted area. You want to talk about the deaths of children sleeping in their beds? There's a reason that allied commanders were concerned that fire bombing raids in Germany and Japan might be deemed war crimes.

We are presented with a modern myth of surgical warfare, collateral damage is minimized, civilians aren't harmed, our soldiers are less likely to be killed. There's a disturbing sequence in the movie, Waltz With Bashir, in which a series of efforts to target militants result in the deaths of civilians, presented in the manner of a comedy montage. The film also highlights how a thin veneer of rationalization can help somebody who might otherwise be wracked with guilt decide that his role in an atrocity was marginal or excusable. I'm not trying to argue that an individual citizen or soldier will change the course of history by speaking up, but it's much easier to disregard our role if we think of ourselves as noble heroes, at least trying to do good and minimize harm, offloading responsibility for collateral damage or atrocity onto local forces or our enemies.

Kuznicki knows our nation's history, so he knows we have a long history of legal presidents and generals, deciding from a distant war room what military measures to take, estimating losses to their forces, our forces and civilians, drawing up lists of individuals who should be captured or killed, dispatching special forces and snipers to capture or kill specific individuals. He knows that the Constitution was drafted with that lethality in mind - the Constitution's suspicion of standing armies, preservation and reliance upon state militias, placing a civilian President in charge of the military, and attempting to create a system of checks and balances to rein in excess. Yet Kuznicki writes of the President,

We know that no one gets to review his decision. Ever. The ones who might do it have all abdicated the responsibility.

Kuznicki, in essence, declares that he is never again going to vote for a candidate who has a realistic chance of winning the presidency because Congress and the courts aren't doing their jobs. Frankly, I would view skeptically even the most sincere promise of a third party candidate to change the practice if elected, not only because presidents tend to accept any expanded powers achieved by their predecessors, but also because he'll have to directly face and address the consequences of a policy change.

I don't want to overstate the role of the courts, as Congress hasn't provided either the courts or prospective litigants with much of a framework for these issues, but their overall history is to defer to the executive on issues of national security and to quietly regret any mistakes only in future decades. The branch of government that has been least willing to do its job in this context is Congress. You'll find Republicans like Darrell Issa angrily demagoguing about issues of embassy security, but when there's hard work to be done - when they are asked to take ownership of their own failings - you'll find excuses ("Our refusal to fund increased embassy security has nothing to do with the fact that it wasn't increased") or silence. You can get objections out of Republicans like Issa over drone and cruise missile strikes - if they produce favorable media coverage; "The President did that to distract you from domestic politics, wag the dog, wag the dog!" But that type of reaction is not a substantive objection - its a politically calculated claim that relates only to timing.

We don’t need an elected beast-god with a kill list. We need to end the system that proposes, every four years, to place one of our human equals into that role. A role any decent human would refuse. And this election just isn’t going to do it.

This election won't do it, the next one won't either, nor the next.... To prevent Presidents from having this power, we would need a constitutional amendment. And as long as Congress pretends that this is not an issue, and the general public reaction is to accept the notion of surgical strikes with no collateral damage (the key rationalization, if you're innocent you won't be near the target, right?), and the media at large treats the issue with a collective yawn, nothing will change.

In Esquire, addressing the fine line that can exist between targeted killings and murder, Tom Junod argues that, unlike his predecessors, President Obama "had to answer an additional question before you took the job. Other presidents had to decide whether they could preside over the slaughter of massed armies, and the piteous suffering of whole populations." But again, that's more a question of degree, and of technology, than it is of fact. Sure, Ronald Reagan had to launch a significant air raid on Libya to try to kill Gadhafi. George H.W. Bush had to indvade Panama to capture Manuel Noriega. Clinton, though, sent cruise missiles to try to kill Osama bin Laden.

One could argue based upon that history that the new way is better - that as technology has advanced, in many contexts we can avoid the type of massive collateral damage that results from a full-scale invasion, even if we won't have to subsequently occupy the nation whose leader we've toppled. It's possible to point to the history of "boots on the ground" in nations like Somalia, and argue that the President can get at least as much cooperation from local warlords by making them aware of the possibility of a targeted drone strike, without putting large numbers of soldiers into the nation at great expense and considerable risk to their lives.

One could reply that history doesn't yet demonstrate that those possibilities are now reality, but the come-back would presumably be that a failed intervention by drone will cost far less in terms of money and lives than the cost of a failed intervention by land. If the choice is to "try drones and special forces" or "do nothing", what does an advocate of "humanitarian intervention" do? If the choice is between attempting to achieve a surgical victory, even if the surgery will be a lot less precise than the government or media are likely to admit, and a massive on-the-ground assault, can we really presuppose that the latter will be less lethal to civilians, more precise, or more likely to bring about and sustain the outcome we want?

A rather compelling objection to targeted killings, particularly in the context of asymmetrical warfare or a distributed target organization, is that the strategy can degenerate into trying to fight a hydra - cut off one head and two grow back. There was a period under Bush during which it seemed like a month wouldn't go by without a successful strike taking out the #2 or #3 man in al Qaeda. Either the strikes were a lot less accurate than the Bush Administration let on (and in some cases we know that to be the case - with the targeted individual turning up alive at a different location) or the U.S. was encountering the same level of "success" as nations have traditionally achieved by capturing and killing "terrorist" leaders - they're pretty easily replaced, and sometimes "martyring" the leader helps with recruiting efforts. Also, while collateral damage may seem modest and acceptable to somebody sitting in the U.S., you can rest assured that the populations hit by those attacks don't share our detachment when it's their loved ones who are being killed.

If Kuznicki wants change, he has a decent platform from which to advance his opinions in the public sphere. Far better than most. But if he wants to influence a political actor, rather than refusing to vote for the President and implicitly urging others to follow, he should be attempting to turn up the heat on Congress.