Why the House Should Follow Through and Sue President Obama
This week the Republican-controlled House voted to endorse suing the President of the United States, a move unprecedented in our nation’s 200+ year history. The root of the suit’s beef with the White House revolves around the executive branch’s implementation of the Affordable Care Act, because of course it does.
The ACA’s implementation has had a rather predictable amount of unforeseen snags, as any such sweeping piece of legislature surely must. And even if these snags have not measured up to the GOP’s sky-is-falling rantings, neither have they all been as entirely immaterial as Democrats might insist. In an attempt to make sure that the President’s signature achievement doesn’t blow up in his face (and take some part of the country’s economy with it), the White House has taken to doing what pretty much every presidential administration since George Washington’s has done before it: issuing executive orders to streamline a temporarily settled legislative issue into a bureaucratic one. But Republicans are now arguing that Obama does not have the Constitutional authority to arbitrarily make such executive orders. Publicly, they insist that these orders are essentially illegal ‘law making.’ After Wednesday’s vote, House-Speaker-for-the-Moment John Boehner declared in a prepared statement that the lawsuit “isn’t about Republicans or Democrats. It’s about defending the Constitution we swore an oath to defend.”
Outside the bloggy world of political armchair hobbyists, the House’s lawsuit has generated little interest outside the beltway despite its historic (if not cynical) nature. And this, I believe, is something of a shame. It really should be getting more attention from everyone. Indeed, I would argue that that the suit itself delves into issues more important, far-reaching, and urgent than the ACA itself. Because for my own part, I feel there are three indisputable facts that need to be noted about this Boehner-driven brouhaha:
Indisputable Fact #1: Despite what Republicans are claiming, this is absolutely a partisan move, designed to accomplish nothing but to appease its lunatic base while avoiding the terrible publicity it would garner by voting to impeach a popular President that hasn’t done anything his Republican predecessor had.
Indisputable Fact #2: Because it’s an attempt by the GOP leadership to avoid an electoral-crippling impeachment circus, it offers yet another piece of data that shows the Republicans’ strategy of tying themselves to the nutty populism of the Tea Party movement has finally become the political liability it was always fated to eventually be.
Indisputable Fact #3: Despite Indisputable Facts numbers 1 and 2, there is also this: The House is right.
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One of the more persistent “facts” that pops up continually on conservative talk radio is the claim that Barack Obama uses executive orders more than all other presidents combined, and not just by a little. In fact, the statistics bandied about give the Tea Party’s insistence that the sitting POTUS has made himself a de facto dictator some potential juice:
EXECUTIVE ORDERS ISSUED:
Teddy Roosevelt: 3
Others Prior To FDR: NONE
FDR: 11 in 16 years
Truman: 5 in 7 years
Ike: 2 in 8 years
JFK: 4 in 3 years
LBJ: 4 in 5 years
Nixon: 1 in 6 years
Ford: 3 in 2 years
Carter: 3 in 4 years
Reagan: 5 in 8 years
Bush 1: 3 in 4 years
Clinton: 15 in 8 years
Bush 2: 62 in 8 years
Obama: 923 in 3+ years!
The problem, of course, is that even though these statistics have become a staple for Tea Party rallies and AM talk radio alike, they are — not to put too fine appoint on it — make-believe bulls**t. Indeed, other than the one-term George H. W. Bush, President Obama has issued fewer executive orders than any US President since — this is true — Benjamin “Hey, Maybe We Should Make the Dakotas Actual States” Harrison.
Just how cynical is the GOP’s lawsuit? Pretty fishing cynical, actually. Not only did Boehner defend and praise George W. Bush’s constant use of circumventing Congress by executive order, he went so far as to urge the Republican President to use the tactic on those issues he (Boehner) supported. And as if all that wasn’t enough to diagnose Acute Brass-Ball Syndrome, as Rep. Tom Cole noted today, the same GOP Congressional leaders who are pushing the lawsuit are simultaneously urging Obama to use the power of executive order to “fix” the problems at the border now that they have proven themselves unable to do so.
At the end of the day, of course, the GOP leadership doesn’t actually want the lawsuit to succeed any more than the Democrats wanted the same tool taken away when Bush sat in the Oval Office. Not only does pretty much everyone with a legal degree seem to agree that the case is frivolous, the GOP is rather inexplicably banking on a win at the ballot box in 2016. And even if the courts agreed to hear the case, it’s a truism that power’s first job is to justify power. It seems highly unlikely that in a world where it has been declared that public officials lying to constituents is protected free speech by the courts, the black-robed ones are going to jump in and overturn a long-standing system because of “good governance” issues.
And yet despite all of that there truly is something unruly and potentially dangerous to how we currently and collectively govern and give oversight to presidential executive orders, which is to say not at all. To be true, the vast preponderance of executive orders are both benign and necessary in a country whose government is tasked with implementing legislation passed by competing partisan political interests. Sometimes s**t just needs to get done. But peppered in with those benign orders are ones that should truly concern if not terrify the citizens of a pluralistic democracy.
Consider: If you are an ordinary US citizen who has been spied upon without warrant or cause over the past decade, the government has done so by executive order. When a White House administration takes measures to make sure the public never learns what they have done when no one was looking, they do so by executive order. When a strong Vice President decides he wishes to have sweeping powers not granted to him or her by the Constitution, those powers are given through executive order. If, after you invade an oil-producing country with the pretext that all future oil-based revenue from said invasion be used to rebuild said country, but decide immediately afterward that US petroleum companies who have made political donations deserve to have a little something’-somethin’ and that maybe their desires should take precedence, you arrange that through executive order. Executive orders are what US presidents have used to reinstitute government-sanctioned torture, restrict medical aid for plagues for reasons of good Christian sexual purity, and remove native Americans off of land that was legally theirs for no other reason than we might happen to want it at the moment. We have even historically used executive orders to intern law-abiding citizens based on nothing but race.
On the other hand, of course, executive orders can be an eventual source of national pride: the Emancipation Proclamation was an executive order, after all, as was the decision to integrate the military. Despite what Constitutional originalists might claim, therefore, there is clearly both need and long-standing precedence for executive orders. To whisk them away would truly cripple our government’s ability to perform even the smallest tasks — even those tasks deemed necessary by the same folks who want them eliminated. But just because you need something doesn’t mean you need it to work the way whoever works for the sitting POTUS wants it to work.
When we talk about executive orders, it is always under the most depressingly cynical of terms: Party not-in-power decries them while party in-power uses them at their discretion — sometimes unethically and (probably) illegally — without fear of consequences. Everyone may occasionally have to stand on a different side of that fence from time to time, of course, but at the end of the day no one can be bothered to consider changing the system because eventually everyone is going to have their shot sitting on the good side. Which is why despite the cynical nature of the House’s lawsuit against the President, I actually love the suit itself — and very much hope it gets heard by a court.
If we agree that executive orders are necessary, convenient, and oft good — but also responsible for some to the worst abuses of power in modern US history — what should we do with them? What oversight should executive orders have, and should that oversight be folded into the Constitution itself? What lines shall we draw in the sand — either through courts or legislation — that we all agree executive orders not cross? Over time, there are going to be additional temptations for Presidents to curb civil rights, disenfranchise citizens, and commit atrocities out of a combined sense of “national security” and convenience. Why not use this lawsuit and the national conversation that might follow as a way to erect those walls now, so that such temptations are taken out of their hands completely?
So I say: Sue away GOP. Sue like the wind. Sue over and over, until we as a nation feel comfortable that when we hand our next newly elected President one of those complimentary White House gift pens, we don’t worry what he or she might do with it.
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At least THIS governmental lawsuit isn’t likely to be thrown out on technicalities.Report
Agreed, so long as the political question doctrine isn’t considered a “technicality.”Report
also depends whether the ‘case or controversy’ requirement is a technicalityReport
@francis (or potentially, @ anyone):
What’s your opinion on standing in this case?Report
Here’s a primer arguing in favor of standing.Report
Thanks, James.Report
First thoughts on an executive order patch: legislative confirmation (within a window of 6 months to a year, maybe), plus a custom of attaching most executive orders to a relevant piece of legislation, so that Congress can mass-approve the bureaucratic orders.Report
My plan to reform the US Senate would empower the Senate to invalidate executive orders.Report
Raises the specter of a legislative veto, which is unconstitutional.Report
@james-hanley
I don’t know if you were addressing my comment, but under my plan, a constitutional amendment would be required.Report
Gabriel,
No, your plan would make the legislative veto (a particular type, anyway) constitutional, so my critique would no longer apply.Report
How about just plain legislation?Report
Wait a minute, I want to tack on a rider to that plain legislation: $30 million of taxpayer money to support the perverted arts.Report
@burt-likko
But an executive would always have to make some decisions in enforcing the law, and therefore issue orders to that effect. I can’t speak for @guy (whose policy seems different from mine) but under my plan, the order would be presumed valid, but the Senate could, perhaps by a super-majority, overturn it.Report
As an addendum, also under my plan, a law could be passed overturning the order, too.Report
@gabriel-conroy why would you want to hobble the Senate that way? Congress can already override any portion of an executive order it doesn’t like by passing a law. And all it needs is simple majorities in both houses. A supermajority requirement would increase, not decrease, both the power and needfulness of executive orders. Nor do I see a systemic need for cutting the House out of the equation — you might not like this House, but of course we’re writing about institutions, not particular collections of people.
The kind of nonsense that @jaybird writes of is a problem of Congress’ internal discipline.Report
@jaybird
There is a theory that a little pork barrel politics helps make things more cooperative. I’ll scratch your back, you scratch mine, etc. Now that earmarks have been removed, we are seeing more acrimony because it is harder to build consensus.Report
Wasteful spending is the price we pay to make it easier to get even more wasteful spending.Report
Burt,
Actually, my plan would empower the House. One thing I didn’t note in the comments (but mention in what I link to), is that under my plan the Senate would have only a suspensatory veto over legislation. So the House could pass a law by a simple majority.
However, there is a problem in what you said in your comment that I want to point out.
To overturn an executive order under our current system requires only a simple majority of both houses, but also the presidents signature (or letting it become law without his signature). Potentially, again under our current system, a supermajority might be needed anyway if the president feels strongly enough about his executive order to veto the attempt to overturn it.
The whole point of my plan to reform the Senate is to do the following:
1. Empower the House as the primary legislative body and weaken the Senate’s role in that process.
2. Provide an additional and expeditious check on the executive. (And for the record, I wouldn’t insist on a supermajority to override an executive order.)Report
I forgot to mention that my plan would empower the senate to remove presidential appointees (but not the president or Article III judges) for no confidence, perhaps with a supermajority requirement. My plan would keep in place the impeachment provisions as is.Report
As I see it, the President would have to veto a law overturning an executive order. There are profound, albeit not insurmountable, disincentives for so doing.Report
Sadly, the answer to your question –
“Why not use this lawsuit and the national conversation that might follow as a way to erect those walls now, so that such temptations are taken out of their hands completely?”
is quite simply –
“Because, there’s no way the national conversation that might follow this specific lawsuit will come within the same area code as a debate about the proper use of executive orders by a President.”
For the national conversation you seek to occur, we’d need a contemplative press corps we don’t have, reasonable political thought leaders we don’t have and a discerning electorate we don’t have. Maybe a lawsuit against an executive order that was less cynical where standing was clearer might overcome the lack of these environmental requirements, but the circus act ain’t that.Report
Agreed. In the present political climate, there’s simply no way a reasoned conversation about the uses and limitations of executive orders can occur, in large part because Republicans (and to a lesser extent, Democrats) have created such a poisoned atmosphere that any attempt at discussion will degenerate into a slogan shouting match. The 24-7 media will, of course, capture all the fire but none of the light.
I fear we’ve reached a point where our political system is almost irrevocably broken. This lawsuit is a symptom of that brokenness, which is why it’s correct to view it as a cynical ploy and nothing more.Report
Not that I think your cynicism is unwarranted, but it’s funny to see you calling for less cynicism at the end of that comment.Report
So are the commonly trotted out numbers about executive orders made up out of thin air? Or are they somehow twisting definitions and counting?Report
My guess would be twisted definitions- “proclamations” (eg, that of Emancipation) and other things that are functionally executive orders as we understand them, but aren’t explicitly titled as such wouldn’t be counted.Report
@kazzy
I imagine it comes out of thin-air. Presidents have at least since Jackson (and probably since George Washington, that traitor who led an army against the country to which he had pledged loyalty) have issued executive orders. The law is passed, and the executive has to enforce it. In the course of enforcing it, the executive gives an order.Report
Yes. ‘Executive Order’ are just a strangely specific proclamation that is how the president does his job.
We’ve decided to call them executive orders when the president writes ‘We will create a new Office of X in the Interior Department to do X using your discretionary budget.’ at his desk and signs it and says “I have issued an executive order to get the Interior Department deal with X.’.
And we don’t call them executive orders when the president says, in a cabinet meeting, to the Secretary of the Interior, ‘Hey, we’ve got a problem with X, and that’s under your remit, so make an Office of X using your discretionary budget and deal with it.’.
It’s a completely arbitrary distinction. Executive Orders basically means ‘The President wrote his Presidenting down formally on paper, instead of just telling his cabinet.’.
And, on top that, ‘signing statements’ generally are just the president writing stuff down as he signs a bill. But it’s exactly the same thing as an executive order. Bush II *might* have tried to claim otherwise, that somehow he had additional powers to override parts of a bill while signing it, but the general consensus is that he was legally incorrect…if indeed that was his claim.(1)
Now, of course, some of those executive orders and signing statements are outside the bounds of what the president is supposed to be able to do…but so are some of the ‘informal’ requests also.
Counting them, as if they are some sort of sin, is pure nonsense. If anything, I think we should *encourage* this stuff being formal, at least then we have a record of it.
Imagine if the president just *told* the Department of HHS and the IRS that they weren’t to do the employer mandate, but there was literally no record of this fact to point to…they just sorta weren’t doing it, and no one was entirely sure why, and the House’s lawsuit first had to *prove* it was due to Obama ordering them to do so.
1) It was always rather vague whether or not he thought he could ignore parts of the law *because* of the signing statements, or thought he could ignore parts of the law because of national security and the signing statements were just explaining that. Or some odd combination of both. (National security gives him a line item veto?)Report
I don’t mind Executive Orders. Sometimes an Executive gotta Exec.
What pisses me off are signing statements.Report
@jaybird
I have mixed feelings about signing statements. In theory, I don’t have a problem with a president stating his or her understanding of the law and how he is going to enforce it at the time he signs it. Again, in theory, it could be a good thing: we as citizens know what to expect in terms of how the law will be applied.
What bothers me is the precedential value (if any) signing statements are accorded by law enforcement, regulators, and the courts. And I don’t know what value is assigned to such statements.
Someone–I forget who–has suggested that presidents should do “non-signing statements.” That is, let some bills become laws without his signature, but issue a statement explaining why he’s not signing it, and perhaps also his understanding of what the law entails or how the law will be enforced. (That may not be 100% the argument this person I forget was making, but I think that was the gist of it.)Report
If you don’t like the law, veto it and send it back.
If you like the law, sign it.
Don’t say “well, I’m going to interpret the language *THIS* way and not *THAT* way and that is how I’m going to enforce the law.”
Question: do these signing statements apply across presidencies?
I’m under the impression that they carry zero weight.
Which brings me back to “if you don’t like the law, veto it”.Report
f you don’t like the law, veto it and send it back.
If you like the law, sign it.
The problem is that presidents like some of the law, but not all of it, and have few prospects of getting those parts changed if they send it back. Or the law as it stands has enough support that a veto will be overridden.
So presidents try to get what they want through other means.
They could just accept that sometimes they lose the political battle, but why the hell would they just roll over and play dead like that?
Question: do these signing statements apply across presidencies?
Unless and until a successor president says otherwise, they remain in effect. If they go in opposite ideological directions from a successor president, they may be revoked. If they happily work to enhance executive power, there’s not a lot of incentive to revoke them.Report
So presidents try to get what they want through other means.
Do we agree that it’s improper for them to do this extra-constitutionally?Report
I’m not sure it’s necessarily “extra-constitutional.” I don’t see a lot of difference between the president signing the law along with a signing statement and signing a law and one day later announcing how he’s going to enforce it.
At least in theory. In practice, there’s something not quite right about it in my opinion, but the part that’s not quite right is how much deference it’s given, say, to your question about future administrations. If the courts start to use signing statements to guide them, and perhaps they already have started to do so, then I’d be much more worried.Report
But the constitution provides for another way of letting it become law (without his signature, after 10 days provided Congress is in session), and another way of vetoing it (pocket veto). Those two options aren’t extra-constitutional. And a statement from the president about why he pursued the course of action he did does not strike me as all that alarming.
Again, though, I am concerned by how much deference is given to these statements.Report
Jaybird,
“Extraconstitutional” is a bit of a term of art. It doesn’t mean “unconstitutional,” right? (And maybe you meant to make that distinction in your comment.)
I’m not necessarily opposed to extraconstitutional things (e.g., political parties, House districts (well, I’m opposed to those, but I think they’re constitutionally legitimate)). Signing statements and executive orders are not necessarily problematic. Signing statements, at the very unobjectionable end, can be just statements about how important this law is and how proud the President is to be signing it into law. It’s the other end that bothers us, right? But even that unobjectionable end is extraconstitutional, in that the Constitution is silent about the president making any statements when signing bills into law (whereas it specifically requires an explanatory statement when casting a veto).
Executive orders apply only to the executive branch, and the President is the head of the executive branch, so he (prospectively she) necessarily needs some authority to manage it. But because the Constitution didn’t really anticipate an extensive bureaucracy, it didn’t mention anything about the President writing orders to manage it. So, again, they’re extraconstitutional, but not necessarily constitutionally problematic.
Even executive orders directing the agencies to implement a law a particular way are not necessarily problematic, because Congress deliberately writes some laws very vaguely (either because they feel the lack the requisite information to write specific details or because they want to duck the political backlash from turning nice ideals into binding effects on real people).
I find Obama’s ACA approach constitutionally problematic, though. So I think if that’s what we’re focusing on, we’re in agreement.Report
It’s actually possible for a signing statement to be pro-Constitutional, because, arguably in its best form, the signing statement can say, “I think this law can be constitutional and be constitutionally enforced, but only so long as I construe it in this and this way and enforce it in thus and such way.” That’s an assessment the president is obligated to undertake before signing a law, and it’s not a bad thing in itself when he makes his thinking on it public. The problems come when we find out what President So-And-So’s ideas about constitutionality and what it means in practice are.
I.e., the problems with signing statements and executive orders are not procedural, but instead are substantive and dependent on the particular statement or action in question.Report
@michael-drew
I pretty much agree with that, with one potential exception. I think the problem can be procedural if, or to the degree that, the courts defer to the signing statements. I’m not sure how much or whether they do, but if so, that’s an area in which a problem can exist.Report
I think the president should sadly concede part of the lawsuit, and tell everyone that small businesses will, in fact, be forced to implement parts of Obamacare immediately, like the Republicans want.
Meanwhile, the Senator should take the exact text of that executive order and pass it, and hand it to the House.
If the House sues to make something happen, and refuses to pass a law stopping it from happening, that, pretty clearly, demonstrates they’re in favor of it.Report
Although mainly I think he should concede the lawsuit solely to cripple Boehner’s ability to keep control of his party, under the hope that thus loons will finally go ahead with impeachment.Report
Tee hee! If only the Democrats were organized enough to pull something like that off, which they aren’t.Report
This.Report
If the House sues to make something happen, and refuses to pass a law stopping it from happening, that, pretty clearly, demonstrates they’re in favor of it.
What about the House passing the law in the first place? Does that demonstrate anything?Report
@jaybird just want to say that I appreciate what you do.Report
We already knew the House that passed it was in favor of it. I have no idea of the point you’re trying to make.
That House would presumably also be in favor of minor tweaks to the law to fix problems that arose, instead of this rather insane idea of suing to force the executive to implement specific parts they don’t like of specific laws they don’t like, which is, *admittedly*, their plan to break things.
A long time ago, I said that the way to fix drug laws was to force the government to enforce them, equally, against everyone. I am correct, such a think would cause immediate outrage and fixing of the law. People will not stand to have their liberty infringed that much.
The problem is that Republicans have decided to try that theory against the ACA, which, uh, isn’t any sort of infringement of liberty, and *won’t* have people outraged, despite the nonsense they’ve tried to stir up repeatedly since before it was passed. Forcing the employer mandate now instead of later will, maybe, cause some grumbling. That’s it.
But ‘some grumbling’ is basically what they need now that 90% of the law in effect, and everyone sees, hey, wait, this didn’t really do anything to me. My premiums went up, but they were doing that anyway. And now my cousin who works at McDonalds has bought health insurance.
At this point, the Republican Party is flat out delusional WRT the ACA. And I don’t mean in that in any sort of metaphorical or hyperbolic sense. I mean they are actually hallucinating things. They have managed to convince themselves that if the American people see the ACA for what it is, they will revolt…and there’s not the slightest shred of evidence for this.
Which is why I said the president ought to give the ACA to Republicans, good and hard. It will screw up their planned circle-jerk of complaining about the mandate because Obama can just deflect any criticism with ‘Yes, I know it was implemented too fast, that’s why I tried to slow it down, but Republicans demanded it now.’. Meanwhile, it wouldn’t *actually* cause any problems…half the reason it was delayed in the first plan was *imaginary* whining claimed by Republicans, where they find like .00001% of the people who will be affected by the employee mandate and are very Republican, and hold them up as ‘small business owners hurt by this’.
It makes Republicans take the nonsensical stance of ‘Yes, we sued to make something happen, because we hate that thing so much. Also, that thing we sued to happen is still hurt horrible.’
Granted, they’re *already* taking that stance, but right now they’re planning on stalling and making speeches about the proper functioning of government, and whatnot, until the election. Obama should just blow up their plans.Report
Thank you, David. We haven’t had such an extensive bout of pure partisan keyboard hammering in a long time.Report
They have managed to convince themselves that if the American people see the ACA for what it is, they will revolt…and there’s not the slightest shred of evidence for this.
I’m looking forward to the Kentucky results this November. To see if voters who poll as really liking the health care coverage they now have will vote for candidates whose policy position is to take that coverage away.Report
@james-hanley
Thank you, David. We haven’t had such an extensive bout of pure partisan keyboard hammering in a long time.
I notice you didn’t dispute anything I said. To help you with that, I will cite facts in my statements so you can easily find the ones you disagree with.
The 2010 House that passed the ACA was in favor of the ACA. [evidence: They passed it.] That 2010 House would have, presumably, also been in favor of tweaking the law to make it work better (Although, as this is a hypothetical, note my use of ‘presumably’.)
The current Republican-controlled House is against the ACA. [evidence: They’ve repeatedly tried to repeal it.]
They have specifically asserted that the employer mandate is harmful. [evidence: http://www.cbsnews.com/news/gop-obamacare-hurts-employers-and-employees-alike/ etc, etc, I’d link more but I’ll get moderated. Basically, whatever Republicans were saying about the employee mandate until the second it became clear Obama was delaying the thing. Google ‘job-killing aca’]
They, nevertheless, are attempting the force the President to implement that specific thing. [evidence: The lawsuit we are talking about.]
I will presume you aren’t taking issue with my drug law idea, which obviously was just presented as an unrelated thought experiment, so let’s move on to my next claim, the one I think you’re having an issue with:
The Republicans are vastly overestimating the level of dislike of the implementation of the ACA’s employee mandates. This is actually two statements. One, the American people will not actually dislike the implementation of the ACA employee mandates, and two, the Republicans are misinformed about that. [I really have no evidence of the latter, it’s possible the Republicans are Democratic moles and they’re deliberately operating a losing strategy or something. But the most reasonable assumption seems to be they are misinformed.]
I suspect it is the first part of that statement you disagree with, specifically, with my claim that Americans will not dislike the employee mandate, and that it will not cause any noticeable problems whatsoever. Basically, you think it *will* clause problems? Is that an accurate assumption? [evidence: again, google ‘aca job killing’, and read anything that presents the CBO’s report objectively]
The rest of my post is conjecture about what is going to happen when the employee mandate goes into effect (The Republicans find the rare examples of small business owners who claim to have been hurt by such a law, and try to make a case using them. Half these claims will, as usually, be nonsense or a big ball of nothing, and the Republicans will not end up gaining any ground, just like they failed with the individual mandate), vs. what would happen if Obama ‘caved’ to the lawsuit and just implemented it now, cutting the Republican’s legs off. I have no evidence of what will actually happen in the future (Although I say the GOP’s predictions are absurd.), or how the GOP will react to that thing, except how it’s reacted to every other part of the ACA.
So, which of those do you object to? Like I said, I *think* you’re objecting to what I claim will happen when the employee mandate goes into effect, but I figure it’s best to let you actually state that before trying to prove it.
Or, alternately, you have no factual objections to what I said, and by ‘pure partisan keyboard hammering’ you mean I’m being *rude*?
First, let me make sure to clarify that, in my entire post, when I talked about ‘Republicans’, I was talking about *House Republicans*. I was contrasting the 2010 House with the current House which just did this lawsuit. I was not talking about members of the Republican Party in general. Or even elected Republicans in general. I think my post makes it clear who I’m talking about, but I probably should have been more specific in terminology.
Second, if you’re taking issue with my statement that the Republican Party is ‘delusional’: That’s a reasonable criticism. Such a thing is literally impossible.
But if we consider the House GOP as a single organism (Political parties are people, my friend.), their beliefs about the ACA do seem to fit the definition of ‘delusional’. Those beliefs have ‘certainty’, ‘incorrigibility’, and ‘impossibility or falsity of content’.
The specific difference between ‘persistently wrong’ and ‘delusional’ is that delusional people do not actually change their mind when presented with evidence to the contrary. I don’t mean they deny the evidence, or invent some other possible explanation, that’s just being plain wrong. I mean they accept the evidence, but continue to believe the wrong thing. Only sane people need rationals and conspiracy theories.
I.e., someone who thinks someone from the CIA is spying on them from their closet is not delusional. Someone who just finished construction of their closet, can see inside their closet, and knows the CIA has never been in there, but *nevertheless* thinks the CIA is spying on them from their closet, is delusional. A delusion is not just being wrong, it’s being wrong *in ways that are not rationally possible*.
The House GOP is, as an entity, appears to be operating perilously close to that point. Not just wrongness, not just willful wrongness, but actually believing contradictory and physically impossible things with absolute certitude. And they do, indeed, seem to be suffering from hallucinations, in that things just sorta *appear* inside their mind and are immediately repeated as true. Aka, ‘death panels’. At which point these hallucinations often become unshakable wrong beliefs, aka, delusions.
This is why I was saying it wasn’t hyperbole…people tend to use ‘delusion’ incorrectly, to mean ‘very wrong’. I was trying to say, if they were a person, they would be clinically delusional, not colloquial ‘wrong-delusional’.
Of course, a group of people as a whole can’t *actually* be clinically delusional like that, or hallucinate. When I said it wasn’t hyperbolic, I meant it wasn’t a *hyperbolic* personification…but it was still a personification. Which is very confusing…personifications can be hyperbolic (My stomach loathes dairy with the heat of a thousand suns.) or not (My stomach doesn’t like dairy.), but *saying* a personification is not hyperbolic just confuses people. So I probably should have said that some other way.Report
I’m curious about why you think those particular points are what I object to.Report
@james-hanley
I’m curious about why you think those particular points are what I object to.
I’m curious as to why you want to know *that* instead of just explaining what you do object to, which surely you know better than me, and would clear up this entire thing.
I’m also curious as to why you are asking me why I selected something. In my post, I summarized the factual claims I saw I had made *and* at the same time pointed out how they are, or are not, backed up by evidence. And I hypothesized that you disputed the weakest one, the future hypothetical that I obviously cannot prove. (And a second hypothetical that relies on that first hypothetical.)
I think my process there was fairly transparent and obvious. I might have guessed *wrong*, but I think it’s obvious *why* I guessed that one (Humans do not actually know the future.), so I’m not sure why you’re asking how I selected it, like it was some great mystery. If I’m wrong, just say ‘No, I actually disagree with your statement that the 2010 House liked the ACA’, or whatever other point you dispute.
But, you have made me realize it was an extreme waste of time playing this guessing game, I should have just pointed out you didn’t dispute anything I said…and not said anything else at all.
So, forget my attempt to guess your objection. Let me rephrase: What exactly do you dispute with my ‘extensive bout of pure partisan keyboard hammering’?
Period, end of comment.Report
The partisanness of it.Report
So, basically, you have no issue with any of the facts in what I said, you just…don’t think Obama should undermine their fairly obvious and completely partisan plan?
It’s rather surreal to have someone object to the partisanness of a *response* to the House Republicans. The people to object to are the elected Republicans, who started this specific battle, and in fact started this dumb war against the ACA. (Or, rather, stupidly continued the war *after* it passed. Trying to kill it before it passed was a bad political calculation, but could have, in theory, worked. But after that, the Republicans should have stood eager to pass a few minor tweaks, and claims that with such tweaks ‘they fixed the broken law’.)
Basically, what is going on is the right’s(1) lies catching up with them. If a party lies long enough about how a law is going to destroy the entire country, they will, obviously, find themselves unable to pivot and stop talking about that already-passed and enacted law. If a party lies long enough about how a president is completely lawless and turning the country into a Muslim caliphate, at some point the people who believe them are going to demand they impeach him. Duh.
If the House Republicans don’t want to be ‘forced’ to impeach Obama, or risk losing their seats, the elected Republicans *shouldn’t have done that*, they should have pushed back against these lies, not run on them. The Democrats didn’t make this insane situation where a significant fraction of the Republican party voters demand presidential impeachment over no crime.(2)
And considering the justification for the extension of the employer mandate was based on right-wing lies and nonsense, there’s no reason to completely undercut these liars by just nodding and say ‘Okay, if you really want to do that (Despite the fact you were previously demanding we don’t do it at all.), now, we can do that now.’.
But, by all means, object to the left pointing this out, or suggesting that, as a solution, the president just blow up their insane plan to force him to do something they don’t want done and he does. Because that’s just too ‘partisan’.
Here’s a general statement I will make: If, when X is sued by Y, and a third party suggested the best thing for X to do is just agree to everything Y wants and do exactly what the lawsuit demands, and somehow that’s construed as being very *anti-Y*, someone in that situation is completely insane.
1) And here I mean ‘Fox News’, and ‘Rush Limbaugh’, and everyone who created sheer nonsense to feed to the base…and the Republican Party that went along with it and even participated.
2) There is an argument that the executive should be required to enforce the law in general, and failure to do so should, sometimes, result in pushback from the legislature. And perhaps a lawsuit is the way to do that sometimes? These specific circumstances, where the president delays a new tax mandate for a single year because of administrative worries, is almost certainly not one of those ‘lawless’ times…that seems to be within the flexibility the president has when implementing new laws and no one normally has a problem with. (There are *other* exercises of his power that seem much more dubious.)
But delaying the employer mandate is not *why* they’re suing him, anyway. They’re suing him because they desperately need a reason to sue him, so they don’t have to impeach him, And they wanted one associated with the ACA, so found they these grounds, as an excuse.Report
So, basically, you have no issue with any of the facts in what I said, you just…don’t think Obama should undermine their fairly obvious and completely partisan plan?
It’s rather surreal to have someone object to the partisanness of a *response* to the House Republicans.
Oh, so you have an objection to partisanness, too?
But do you, as do I, apply that objection to both sides?
Look, we each have our preferred party (even if it’s just a hypothetical one we wish existed). And that’s ok. What I mean by partisanness is interpreting everything just through the lens of our own party, and seeing the other party as wicked and calculating and purely partisan, while seeing our own party as pure and honorable in its pursuit of truth and justice. I exaggerate, but I hope you get the general idea.
You accuse the Republicans of being partisan (well, of course they are!) without recognizing that you’re being wholly partisan, too, or that the Democrats are being wholly partisan as well.
Why did Obama delay the employer mandate, after all? Because he was worried about the political and economic (which is to say, again, political) effect implementation by the required time would have. An even angrier business community and (potentially) lost jobs, would have a bad effect on public support for ACA and for Democratic candidates.
And that’s a legitimate concern! Constitutionally I have qualms about Obama’s assumption of nearly unlimited discretion in interpreting laws (not just ACA), but of course I had those qualms about his predecessor, too. And ultimately that’s a question for the courts of law and the court of public opinion to settle. But those issues get settled by presidents pushing those boundaries when doing so suits their personal and/or partisan goals.
But I could have just written that as a screed against Obama, and suddenly the critique would have been merely a partisan one. I wouldn’t have needed to use any false claims or untrue “facts.” The partisanness comes in which facts I choose to use and which I don’t, how I frame them, and whose perspective I consider.
You consider only the Democratic perspective, so your post–even granting all your factual claims–is partisan.
We can, in fact, consider the Republican perspective and get a rather different story. Republicans tend to believe (rightly or wrongly) that if the ACA actually went into effect as the law was written, the public would reject it. Obama’s efforts to implement the law other than as it was written suggests he actually agrees, or at least worries that it may be true. So he’s pushing the boundaries of administrative discretion in implementation beyond what’s legitimate, into the realm of actually rewriting the law, in an attempt to salvage it from public repudiation.
Sure, the Republicans don’t actually want the employer mandate. But what they really don’t want is the law as a whole, and the employer mandate is a tool they can use (they think, hope) to achieve that end. If the President is using delayal of implementation as a tool to build support for the law, the Republicans can use (or try to) timely implementation of the mandate as a tool to kill support for the law.
Of course it’s partisan. It’s partisan on both sides. But your critique would have us believe only the Republicans are being partisan, that only the Republicans are pushing the boundaries on the rules of the game.
That is, your critique doesn’t actually provide us with real understanding because it’s so one-sided. It’s advocacy, not analysis, and that’s boring.
I’d level the same critique if a conservative simply damned Obama for being partisan in manipulating the law to save ACA, and implied that the GOP was just being pure and noble in its pursuit of truth and justice.
Maybe you understand what I’m saying. Maybe you don’t. There’s a litmus test in that.Report
While I agree David is only really talking about the Democratic perspective, I think your response is giving a bit more monlithicism to the GOP than really exists at this point, James.
The word “partisan” is coming apart at the seams, it seems lately.Report
@james-hanley
You accuse the Republicans of being partisan (well, of course they are!) without recognizing that you’re being wholly partisan, too, or that the Democrats are being wholly partisan as well.
I didn’t ‘accuse’ the House Republicans of being partisan. Now, they obviously are partisan, political parties are partisan by definition. However, despite what you think, they’re being somewhat more partisan than elected Democrats. Or, rather, the Republicans are *wholly* partisan, as every single thing they do appears to be aimed at winning elections, whereas the Democrats appear to wish to govern a little also.
However, that’s not what I accused the House Republicans of. Nor did I condemn their actions on any sort of moral grounds.
I accused them of being incredibly stupid and misinformed, and doing some actions that looked insane and counter-productive and that Obama could make a mockery of.
(Although I should be fair there…some of them are incredibly stupid and misinformed, and the others have just been lying to those stupid and misinformed people to win elections, and are now backed into a corner by those people.)
Why did Obama delay the employer mandate, after all? Because he was worried about the political and economic (which is to say, again, political) effect implementation by the required time would have. An even angrier business community and (potentially) lost jobs, would have a bad effect on public support for ACA and for Democratic candidates.
See, I think this is where we differ. In my book, Obama was *wrongly* worried about the political impact of the employer mandate. He, basically, fell for a delusional Republican talking point. Or, if he didn’t ‘fall’ for that, he at least still believe that pretending such points were reasonable would earn him some political capital, or at least a reprieve.
He was, of course, completely wrong about, and it honestly amazes me that a man that seems somewhat intelligent kept thinking, even into his second term, that he would ever satisfy the Republicans with *anything* he did, or that they wouldn’t immediately start criticizing him when he did exactly what they wanted.
So, anyway, I’m not *just* being partisan. Yes, I’d like to see the Republicans undercut, but the delay was *wrong* to start with. It accomplished nothing, it kept some people from affordable insurance, and nothing was gotten in exchange. Getting rid of the delay is a good idea. (Although at this point it’s almost moot, timeline-wise, so it’s not something I would run around arguing for normally.)
But I could have just written that as a screed against Obama, and suddenly the critique would have been merely a partisan one.
I understand the concept of this lawsuit, and I don’t object to it. We’ve never used lawsuits for this before, but whatever. (I suspect the courts won’t go along with it, but that’s a matter for the courts.)
I just think a) That delaying the implementation of the law a bit is a fairly trivial complaint to make a legislative stand on(1), and b) This is a *insane* complaint for *Republicans* to make a stand on.
But your critique would have us believe only the Republicans are being partisan, that only the Republicans are pushing the boundaries on the rules of the game.
No. I do think the Republicans are pushing the bounds of the game in all sorts of ways, but this isn’t one of them. (2)
This lawsuit is outside the norm, sure, but that doesn’t mean it’s ‘pushing the bounds’. It’s a new thing, whatever. It’s just this example is completely idiotic and presents Obama with a hilarious opportunity to do exactly what they’ve sued him for and undercut them.
1) I feel like reminding people that a certain president that won’t be named tortured people in violation of the law.
2) Things I consider pushing the bounds: Voter suppression, vague threats of violence if they don’t get their way, astonishing amounts of filibusters even for uncontroversial things like presidential appointments, threatening impeachment for things that cannot conceivable be violations of the law or are not even vaguely true, etc. And, to some extent, the sheer levels of blatant lying they never apologize for or correct.Report
@patrick
The word “partisan” is coming apart at the seams, it seems lately.
Yeah, after I read your post, it suddenly accorded to me that, from a certain point of view, the Democrats are indeed more ‘partisan’ than Republicans.
If we define ‘partisan’ as ‘doing what the party leaders want’, then the Democrats currently win. (And this is a change from the recent past…Republicans used to win that category. Democrats didn’t become more lockstep, Republicans just completely *disintegrated*.)
But if we define ‘partisan’ as ‘doing what (they think) the party’s *voters* want’, than Republicans win, or at least the true believer Tea-Partiers win.
The Republican party leaders, meanwhile, are partisan in the definition of ‘Doing what is *best* for the party’.
None of this, it should be noticed, really has anything to do with *actual policy*. On either side.
The elected Democrats sometimes accidentally get actual policy because their leaders come up with some, so sure, they’ll probably vote for it, after some grandstanding by the conserva-dems. On the Republican side, the Tea-Partiers have actual policy, but it’s really dumb policy, so their leaders have to stop it…and those leaders are usually too busy doing that to try to come up with any actual policy.Report
David,
I didn’t ‘accuse’ the House Republicans of being partisan.
Right, you only said,
their fairly obvious and completely partisan plan
Look, you may not see it, but it’s clear to me that you are looking at the Republicans’ action from a Democratic perspective. That’s all right as far as it goes–it’s just politics. But it doesn’t really go very far, and for better analysis one has to step away just from a one-sided perspective and try to understand how the other side perceives themselves, not just how our side perceives them.
Keep in mind that just because we’re persuaded the other side thinks/believes X, that doesn’t mean we actually know our asses from our elbows, as Jonathan Haidt has demonstrated. When he asked people to take his political values survey as if they were from the other side (asking liberals to answer like conservatives and vice versa), the findings didn’t support the idea that we really understand other ideologies very well.
Now I don’t want to put much weight on the conservatives being more accurate than liberals bit, because this isn’t a screed against liberals. The point is just that what any of us think about the other side’s beliefs and motivations is not necessarily accurate, no matter how true it feels to us.
People who care about really understanding what’s going on try to find out what the other side really does believe, what its motivations really are. People who are just partisan hacks simply interpret the other sides’ motivations from their own perspective. This provides nice psychic reinforcement, which is good for our personal mental comfort, and the very ease with which we are able to interpret others’ actions in accord with that storyline serves to reinforce our certainty that it must be true.Report
@james-hanley
Look, you may not see it, but it’s clear to me that you are looking at the Republicans’ action from a Democratic perspective. That’s all right as far as it goes–it’s just politics. But it doesn’t really go very far, and for better analysis one has to step away just from a one-sided perspective and try to understand how the other side perceives themselves, not just how our side perceives them.
Which sounds all reasonable…until you look at what I said in the first place, and how you responded.
I said that I believed that Republicans thought that people will hate the employer mandate, so they’re trying to force it into being enforced. (I also said I think such a belief is delusional, but that’s neither here nor there.) That’s pretty much all I said about their *motives*.
This is not only not a ‘one-sided perspective’, it’s basically what you *yourself* are saying in this discussion. Moreover, I think this is a fairly reasonable motive for people to have, as evidenced by the fact I *myself* believe such a thing about drug laws. Their motive is not grounded in *fact* so won’t work, but I’m not claiming they’re trying to eat babies or being evil for the sake of being evil. What I said they are attempting to do is a perfectly good way to get people to revolt against a really bad law…it’s just the ACA is not ‘a really bad law’, so the attempt will fail.
Granted, you’re also saying that you think Republicans are hoping the courts will issue a rebuke to Obama that they can use, which is a valid and useful addition to the motive discussion and I don’t disagree with it. (That is, I don’t disagree that it could be a motive.)
I’m sure there are other motives also.
Of course, the point of my post wasn’t to list every possible Republican motive, and it *wasn’t* to analyse their actions. It was to point out that the motive I think they are working off of was nonsense, and to state what I thought the president should do in response to the lawsuit, and how that thing would make the Republicans look like fools.
If there are other motives that would change the calculus for what the President should do (And I haven’t seen any in this entire discussion), perhaps you could *mention* them instead of just asserting that I was doing ‘partisan keyboard hammering’ and not even explaining what you mean by that. Or at the very least say ‘I think you’ve oversimplified the Republican motives.’.
Trying to claim the ‘reasonable’ ground when your first response was ‘I disagree with what you said, but I won’t tell you how or why’ does not work.Report
it’s clear to me that you are looking at the Republicans’ action from a Democratic perspective.
I dunno. The only comment in the initial post that I thought satisfied James claim that David is being purely partisan is that “At this point, the Republican Party is flat out delusional WRT the ACA,” and personally I don’t think that’s a partisan take on the issue. I mean, I identify as a liberal and all, but I agree with David on this: the GOP is flat out delusional on the ACA. ANd Benghazi. And the debt crisis. And so on.
THe rest of David’s comment was more of a political strategy assessment than pure partisanship. If A does this, then B will have to that, sortathing.
THere just has to be a place where people can express views supporting a policy or political agenda, or describing an effective strategy, without that view being explained trivially rejected on the grounds that it’s partisan. I mean, I’ve talked about this stuff before, but the “your partisan and I’m above the fray” argument really doesn’t cut any ice with me.Report
But the problem is that Boehner is targeting the one genre of executive order that’s most defensible: a policy is more difficult to implement than expected and so the president delays penalties with support of both the critics and authors of the legislation. Sure, the Republicans want a permanent repeal and the Democrats just want the temporary delay, but if there’s no one in Congress who actually wants the mandates to go ahead as planned. Boehner could chosen any number of other examples, including the immigration executive order which actually does implement a policy that is directly in contradiction to the wishes of Congress. But he didn’t. It’s like starting a national conversation on government transparency by yelling about how CSPAN doesn’t have YouTube-style comments.Report
But… but… but… Obamacare!
See, Obamacare is so obviously going to be an immediate disaster that once the American people get a taste of it forced down their throats by the courts, the sheeple will come to their senses and start voting for Republicans again.
Compare with last year’s fear that “Obamacare will never, ever be repealed. Why is that? Because on January 1, the exchanges kick in, the subsidies kick in, [and Obama’s] plan is to get the American people addicted to the sugar, addicted to the subsidies, and once that happens, in all likelihood, it never gets… [repealed].” (empahsis added).Report
This is a good point, Trizzlor.
I think Boehner is doing everything he can to avoid talking about immigration prior to 2045.Report
Is there a ‘not’ missing at the end of IF#1?Report
Huh. You make executive orders sound sort of like acts of Congress that way: some of them are good, some of them are bad.
That’s going to make for some terrible television. Let’s scrap this one and start over.Report
the GOP is rather inexplicably banking on a win at the ballot box in 2016.
Considering that the Democrats haven’t won three consecutive Presidential elections since 1948, I don’t see how this is “inexplicabl[e]”.Report
They won in 1992, 1996, and 2000 (before that one was stolen, of course.). Surely there won’t be a combination of voter suppression, ballot-counting shenanigans, and judicial overreach a second time.Report
Of course not. And don’t call me Shirley.Report
2000 (before that one was stolen, of course.).
I would have thought 14 years would be long enough for people to learn how our system works, but maybe the American education system really is that bad.Report
@james-hanley
I get your point. In fact, it irked me at the time when people used the “president select” epithet, and it irks me now when people say, in a “gosh darn I thought we lived in a democracy” tone that Bush “lost” the election but became president anyway.
That said, if the claim about voter suppression efforts in Florida is true and if they prevented enough likely Gore voters from voting to sway the election, then I’m inclined to admit that it was stolen.
Not that it would be the first time. Shenanigans in Texas and Illinois likely got JFK elected in 1960.Report
@james-hanley
By removing legitimate voters from the rolls and staging riots to prevent recounts?Report
Schilling,
1. Please show me evidence that any state in 2000 would have gone for Gore instead of Bush based on illegitimate voter suppression. I’ve seen claims that roll-scrubbing in 2000 cost Gore Florida, but I’ve not seen actual evidence.
2. Post-election recounts show Bush won Florida. See here. Even if a person’s acting badly, it’s hard for them to steal what’s theirs.
The real causes of the Bush victory were the closeness of the race (and, seriously, when an election is that class, a coin flip is as fair a resolution as the votes themselves) and the butterfly ballot, an idiotic design put together by a Democrat.
We should also not forget that Gore’s team tried to prevent some votes from being counted, including some overseas ballots, on technicalities of the sorts Democrats often would argue should be overlooked (lack of postage stamp, for example). (And of course Republicans would often argue to block such votes for just such reasons–I’m not arguing the GOP was or is more honorable).
At any rate, given the confusion, the Florida legislature was preparing its own slate of electors, which the Constitution quite clearly allows them to do.* This would have been politically outrageous, but constitutionally, not electoral theft.
But none of that matters, really, not compared to being a loyal partisan.
______________
*There could be a question about whether they could do so after having allowed the public to vote, but there’s no clear constitutional constraint on a state’s authority to determine how electors are chosen.Report
If you look past the headline in what you linked, you find:
But the consortium, looking at a broader group of rejected ballots than those covered in the court decisions, 175,010 in all, found that Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots.
and
The study, conducted over the last 10 months by a consortium of eight news organizations assisted by professional statisticians, examined numerous hypothetical ways of recounting the Florida ballots. Under some methods, Mr. Gore would have emerged the winner; in others, Mr. Bush. But in each one, the margin of victory was smaller than the 537- vote lead that state election officials ultimately awarded Mr. Bush.
Add to that:
Back in 2000, 12,000 eligible voters – a number twenty-two times larger than George W. Bush’s 537 vote triumph over Al Gore – were wrongly identified as convicted felons and purged from the voting rolls in Florida, according to the Brennan Center for Justice. African Americans, who favored Gore over Bush by 86 points, accounted for 11 percent of the state’s electorate but 41 percent of those purged.
Let’s do some arithmetic. Say (conservatively), half would have voted. Say (again conservatively) only 40% of the non-African-Americans would have voted for Bush. That’s 2300 additional Bush votes and 3700 additional Gore votes. 1400 votes is almost three times the margin of victory in any of the recount scenarios.Report
Also, in 1960 there were recounts held in 11 states, including Illinois. The story that Nixon knew he was robbed but, for the good of the country, said nothing is exactly the self-serving BS it sounds like.Report
Michael,
Sorry, I inadvertently shifted goalposts for a moment, and instead of evidence of voter suppression I was stuck on your “stolen” and thinking of voter suppression in terms of purposeful intent to steal the election.
Using the report of the Commission on Civil Rights, yes, it is quite plausible that this kept Gore from winning, and plausibly constituted a violation of the Civil Rights Act due to effect.
Not necessarily due to intent, though, as the Commission concluded that
So point to you on my point 1 challenge, without a doubt. On the original objection, I still object to the use of the term “stole,” which is purely partisan.Report
I read that quote differently. Voter suppression is not a kind of fraud, so the first sentence (“Fraud does not appear to be a major factor in the Florida election.”) does not absolve the state of Florida of deliberately suppressing Democratic votes. Nor does the report say that there was no intent to suppress the vote. It says that that doesn’t matter (“Put simply, no intent to discriminate is required.”); it’s a VRA violation regardless.Report
Mike, I’m with ya on all this. I’d also add that the conclusion (“Fraud does not appear to be a major factor in the Florida election.”) doesn’t follow from the premise (“Instead, overzealous efforts conducted under the guise of an anti-fraud campaign resulted in the inexcusable and patently unjust removal of disproportionate numbers of African American voters from Florida’s voter registration rolls.”)
If anything, the premise would support the opposite conclusion.Report
2000 FL election suffered vast incompetence. Governor Jeb Bush publicly apologized for it, and promised reform, resulting in the touch-screen voting machines the state uses now.
But I think most civil-rights scholars who’ve looked at the issue from the perspective of voter-role purges; have found actual discrimination going on, and most studies that take that discrimination into account give Gore the election, or so Wikipedia tells me. I thought the Brennan link to the a study on voter purging more important, recommended reading.
Report
The Commission report casts doubts that their actual intent was to suppress eligible voters, supporting only the claim that this was the effect. That doesn’t support Mike’s claim that the election was “stolen,” which implies intent, either that the Bush campaign somehow did the stealing itself, or that there was a conspiracy to steal the election.
I’m not, though, going to get into one of those cases where I try to argue with three people simultaneously.Report
James,
My only point was that the internal logic of the quoted claim was pretty damn incoherent, even if we assume they were employing non-standard, legalistic meanings of those terms. I totally agree with you that none of this leads to the conclusion that the election was quote-unquote “stolen”. I’m not sure what that term means, actually, tho I’ve used it myself. I guess it implies a concerted effort by a secret cabal to determine an outcome. I won’t say that didn’t happen, but you’re entirely correct to say that the evidence doesn’t support that it did.
Of course, given the logical terrain we’re traversing, there is no evidence which could confirm the view anyway. Or deny it.Report
I don’t see any logical problem with the statement. “Fraud” means votes being cast fraudulently, and there was no sign of that. It’s a different category from preventing legitimate votes from being cast, which there was a lot of. The fact that voter suppression was the result of an ostensible anti-fraud campaign may be ironic, but it’s not logically contradictory.
Anyway, even if James is right that in 2000 it was merely a happy accident for the GOP that their “anti-fraud” campaign caused voter suppression that won them an election, the current ones clearly have that precise goal.Report
One other thing:
The Commission report casts doubts that their actual intent was to suppress eligible voters, supporting only the claim that this was the effect.
In a strange intellectual turn – which has been proceeding over the last decade or so – I find myself increasingly less inclined or even skeptical of (to the point of impatience and outright adversaritorialityismness) to accept arguments which quite obviously appeal to formal properties (including principles!) to ground advocacy for specific issues regarding political economy or social justice. That is, I’m increasingly a subscriber of Hume’s dictum that reason follows the passions, and because of that I find the insistent appeal to, and concomitant challenge invoked to disputants of, a priori, abstract principles invoked in the name of “objectivity” (the thing the invoker feels he or she possesses while their interlocutor is merely being a “partisan” or basing their arguments on “emotionalism”) to be a bunch of what it actually is in almost every event: horseshit. In this case, there is something transparently ridiculous about a group of people claiming that there is no fraud (according to some idealized principle of what constitutes “fraud”) while conceding that the people acted “overzealously” in pursuit of specific goals that have nothing to do with the principle. That conclusion, I submit, is such an obvious example of bullshit that only people indoctrinated into accepting the “nuance” of the view will be inclined to accept it.Report
@stillwater ‘s point reflects the lens Ta-Nehisi Coates focused on disenfranchisement nicely. Thank you.Report
Michael,
Salon has a good break down on what happened.
1. Florida law required counties to purge voter rolls of non-eligible felons.
2. Florida got a flawed list from the firm it contracted with to create such a list, which it distributed to counties in January 2000. At least one of the flaws were 8,000 people who supposedly had committed felonies in Texas, but who had actually only committed misdemeanors.
3. Some Florida counties used the list, some suspected problems and did not (acting rightly, but technically breaking the law).
4. “Florida officials moved to put those falsely accused by Texas back on voter rolls before the election.” But not all counties, it appears, acted on that.
So to get to the “stolen” conclusion, we have to ignore both that Florida election officials were in fact following the law (if badly), and that they made an effort (if not well) to correct their mistake.
the current ones clearly have that precise goal.
Which I haven’t argued against, and which we weren’t actually talking about. The question was whether you had evidence for the 2000 election being stolen, or whether that was just your left knee jerking again.Report
Apparently I can’t reply to you upthread zic, but if you’re thanking me for that comment, then thank *you*. I’m just expressing my frustrations, so it seemed pretty damn self-serving to me. That you share those frustrations means a lot to me.Report
@stillwater
I just feel moral obligation to use that focus; and appreciate it when others see that obligation, too. Frustration? Maybe. More lack-of-habit, really. When some group has been traditionally disenfranchised, it’s more difficult to see the bits and pieces that form that disenfranchisement when they’re in front of our faces; it requires effort to screen for it. If it’s unintentional yet has this breathtaking result, that does not absolve the moral conundrum it presents.Report
It is BS, but it still doesn’t mean that Nixon wasn’t robbed. It doesn’t mean that he was robbed, either. (I’m sure the GOP’ers were into it in the electoral districts they themselves controlled.) But it doesn’t mean he wasn’t.Report
@gabriel-conroy
If you’re interested and have time, look at the Salon article I linked. It links to a few studies that say he wasn’t.Report
@james-hanley
OK, that is a convincing case that the false labeling of felons was a combination of incompetence, laziness, and reverence for anything that comes out of a computer, at both the state and county level. The state could have set sensible policies for notifications and appeals; instead the process was devolved in both senses of the word.
The post-election behavior is still theft: the secretary of state doing everything she could to halt court-ordered recounts, the Republican party organizing a riot for the same purpose, the Supreme Court ending the recounts on a party-line vote. These were all attempts to win the election by means other than the proper one (getting the most votes). They don’t retroactively stop being theft based on later analysis. And we don’t know what the final recount would have looked like if the process hadn’t been halted. As the New York Times article pointed out, different methods led to different results.Report
Mike,
Then Gore’s attempt to have some votes disallowed is…?Report
The overseas/military votes that were technically invalid? That was based on a directive issued by Katharine Harris.Report
Gabriel – Could you give me a short summary of the arguments for “Kennedy stole the election”? Looking at the 1960 election map, Nixon would have lost the election even if he had won Illinois. (The scenario of Illinois and Missouri going for Nixon, resulting in neither candidate getting a majority, is an interesting alternate-history one. They each had a less-than-10,000-vote margin.)
But Kennedy won Texas by two points (46,257 votes). That’s a pretty convincing win; I was under the impression it was due to him choosing Johnson as VP.Report
@mike-schilling–Like most good Democrats, I’m of the opinion that citizens shouldn’t be deprived of their right to vote on mere technicalities.
@katherinemw–There were allegations of voter fraud in Texas, too. At the time, stealing elections in Texas was SOP. In Johnson’s first run at the Senate, his opponent committed election fraud, so in Johnson’s second run at the Senate he made sure to commit election fraud, too. Texas was Democratic at the time, but Southern Dem, very conservative, and even having the native son on the ticket might not have been enough to help a New England Yankee Democrat win over a good conservative anti-communist like Nixon.
I don’t pretend to know if the allegations are true, but I will assert that they’re not implausible. Johnson was already known to have stolen an election. He wielded considerable power in the Texas Democratic Party. And he was ruthless enough to scare the pants off most people who got in his way.Report
When a strong Vice President decides he wishes to have sweeping powers not granted to him or her by the Constitution, those powers are given through executive order.
Which is crazy. Executive orders don’t apply to VPs, because they’re part of the legislature.Report
Wait, Cheney occupied a fourth branch of gummint, neither legislative nor executive. How come that’s not taught in 8th grade civics class!!!!!Report
Liberal bias.Report
It seems to me that an executive order should be as subject to judicial review as any other government action. An executive order should be struck down either if it is ultra vires (the executive doing something it isn’t authorised to do), or illegal (the executive doing something that actually contradicts the law, including the Constitution).
As to why this doesn’t happen more often, I’d suggest the Standing Doctrine is to blame. The courts have made it very difficult for people to gain standing when the government is abusing its power (especially when the details of the abuses are hidden so no one knows if they are personally affected by it). A lot of government activity ends up being beyond the scope of judicial review because no one has standing to challenge it.Report
@james-k
I suspect Tod is wrong when he says the move by the House is “unprecedented,” or if it is unprecedented, it’s unprecedented because it’s the House that’s suing. My understanding is that executive orders can be challenged as unconstitutional.Report
@gabriel-conroy
Assuming SCOTUS will let you, yes. Consider drone strikes or NSA spying. Who would have standing to sue on those questions?Report
Good question.Report
People have sued about the NSA, but the courts have said, “You don’t know if you’ve been spied on, the list of people who have been spied on is secret, therefore you don’t have standing.” It’s mighty convenient that the list of people who have standing is secret so as to prevent them from being able to sue.Report
@mo
And that’s exactly my problem with the current form of the Standing Doctrine. It effectively legalises unconstitutional actions by making it impossible to demand judicial review.Report
@james-k What’s even more ridiculous is that it is likely that the people who brought suit had standing, but the government just said, “State secrets, we can’t reveal who is and isn’t on the list.” Were I a judge I would have said, “If you can’t prove they don’t have standing, we’ll take this case forward as if they did,” rather than the other way around, like they did.Report
As others have said in this subthread, a major issue is the classification of stuff that isn’t really needed to be classifed. We saw that in the wikileaks released. There’s way too much stuff held back from the public. it hides all kinds of stuffReport
It seems to me that an executive order should be as subject to [immediate] judicial review as any other government action. Fixed that.
Bingo!
I look forward to this lawsuit. Frankly, altering “settled” law by exec order is BS…straight up. And to ANYONE who supports these things, I’ll simply point out that, as Todd said, this is how you got the torture and assassination programs. Given that outcome, I want these things ended now…full stop. They have no place in a “democracy”.Report
It seems to me that an executive order should be as subject to [immediate] judicial review as any other government action. Fixed that.
Of course, most government action isn’t subject to judicial review, immediate or otherwise. Congress passes — well, used to pass — hundreds of laws every year that are never subjected to review of their constitutionality. State legislatures collectively pass thousands. Independent agencies at the state and federal level publish thousands of pages of regulations every year that are never reviewed to determine if they fall within the proper scope of the authorizing legislation. Departments decide if the money appropriated to them should be spent on project A or project B (ie, there’s only enough money to repair one bridge this year).
As well, the very notion of something like emergency spending allocations — in response to, say, Hurricane Katrina or the floods in Colorado last September — goes right out the window if you have to wait months/years for the judicial review process to get around to clearing it.Report
This.Report
On the other hand, of course, executive orders can be an eventual source of national pride: the Emancipation Proclamation was an executive order, after all, as was the decision to integrate the military. Despite what Constitutional originalists might claim, therefore, there is clearly both need and long-standing precedence for executive orders.
As Commander in Chief of the US military, didn’t the decision to integrate the military fall within the President’s constitutional jurisdiction? Likewise, the Emancipation Proclamation applied only to territory under Confederate control, exempting not only the slave-holding states that had never seceded, but also territory that had captured by the Union Army. Lincoln justified it as an act of war. You could make an argument either way, but it’s not clear to me that this exceeded Lincoln’s authority as Commander in Chief.
As an originalist, I have no objection to executive orders as such. A legitimate executive order is just the President exercising his Constitutional authority over the executive branch of the government. The problem is when the President oversteps his bounds and tries to exercise power not granted to him by the Constitution.
That aside, justifying executive orders by pointing to good executive is like justifying dictatorship by pointing to good things dictators have done. The point is that we have division of powers for a reason, and on balance it’s a bad idea to give the President too much power, even if sometimes he does good things with that excess of power.Report
As an originalist, I have no objection to executive orders as such.
Brandon, I’ve a question: as an originalist, how do you distinguish between constitutional and unconstitutional executive orders?Report
It’s unconstitutional if it’s something the President doesn’t have the Constitutional authority to do.Report
Here’s the sticky widget.
Congress passes a law saying the Executive will do X (some set of N things).
Congress routinely passes a budget that allows the Executive to complete only X – (some delta of N)
The President then (a) does or (b) does not have the authority to decide which delta he (or she) will pass on accomplishing out of X?
My judgement is that the President has pretty wide discretion there.Report
Indisputable Fact #1:
Check.
Indisputable Fact #2:
Check.
Indisputable Fact #3:
Check.Report
Does the House, as the House, normally have standing to sue?Report
I don’t know that there’s any legal way for the House to sue the President; they have the power to impeach or the power to legislate; if an executive order conflicts with Congressional intent, legislation would seem the obvious solution.
A suit seems to suggest that the House fails to understand the process of a bill into law and a law into a set of rules that real people actually make decisions using; a common misperception that passing the law is the whole game, and not only the first half. As I’ve repeatedly said, rule making is where we drop the ball and where regulatory capture happens. If anything, it’s where attention should increase, not decrease.
I do think signing statements are a problem; a constitutional crack that indicate a place where the Executive Branch sees laws that surpass constitutional muster. Personally, I would have each and every instance of a presidential signing statement trigger a supreme-court review, thus engaging the third branch of government to settle the difference between the Congress and Executive branches.Report
@zic
I tentatively agree that the House might not have standing to sue in this case. I’ve skimmed the link James provided above, and it seems like, despite the “pro” argument, a legislative body should not usually have standing to use the courts to compel the president to enforce a law. But I do need to read that link more carefully.
I personally don’t think signing statements should trigger automatic judicial review, for reasons consistent with my response to Jaybird’s comments above.Report
The issue really seems to revolve around whether it’s the legislative body or just a handful of the legislators, distinct from the body.
Zic’s argument is a “small c” constitutional one–an argument about how, constitutionally, the legislative/executive relationship should be structured. But it’s not a “Big C” constitutional argument in the sense of making an argument based in American constitutional law about whether a legislative house does in fact have standing.
And, frankly, her position on the lack of standing to sue stands in stark contrast to her position on wanting automatic judicial review of signing statements, which also could be handled by legislation.Report
@zic
A suit seems to suggest that the House fails to understand the process of a bill into law and a law into a set of rules that real people actually make decisions using; a common misperception that passing the law is the whole game, and not only the first half.
The current House barely understands anything at all. I bet there’s at least a few of them that wouldn’t be able to give a basic explanation of a bill becomes law, full stop, much less how it actually turns into what is enforced.
Seriously, these are the same fools that started ranting against ‘earmarks’, aka, ‘Instead of the funding of specific things being decided by us, the legislature, we demand the President make those decisions for us.’. And, in the process, they blew up the deal-making process. (And despite what people think, a stupid deal-making process is better than *no* deal-making process.)
The stupid runs very deep.
As I’ve repeatedly said, rule making is where we drop the ball and where regulatory capture happens. If anything, it’s where attention should increase, not decrease.
Well, the problem is that ‘regulatory capture’ happens in the legislature, too. They captured the legislature entirely also, and get them to push all rule-making off to a body they have already captured. So the legislature is unlikely to fix the problem.Report
James Hanley,
This is from your linky on standing:
The court agreed that the Senate had suffered an institutional injury. Significantly, the senators — a majority of the chamber — unequivocally represented their chamber’s institutional position. . . .
and
The institutional injury caused by executive nullification of a subpoena is far less than that caused by executive nullification of a law. If ignoring a congressional subpoena is sufficient to establish legislative standing, ignoring a law should be more than sufficient as well.
I’m always suspicious when the word “should” is used is used in these types of argument – why should ignoring a law be viewed as more institutionally injurious than ignoring a subpeona? – but I’ll concede that the concept of “institutional injury” makes not only some sense, but lots of sense. Thing is, I’m not sure that type of argument applies in this case.
In the above example, the actions of the executive (the gubna) constituted – in my view, anyway – a harm to the institutional interests upon which state government is constructed. That is, it violated the formal properties under which the legislature accorded the delimited powers it enjoys and is constitutionally tasked with performing. The gubna’s actions clearly (or at least arguably) harmed the formal (rather than merely political) institutional interests of the entity known as “congress”. In what sense, tho, does Obama’s use of an executive order delaying the effective date of the employer mandate penalties constitute an *institutional* injury – and by that I’m understanding the term to mean something like “a harm incurred by the institution restricting its ability to act on the formally defined legitimate powers” or some such. I mean, if the president fails to enforce – and in this case intends to obstruct the enforcement of – congressionally determined provisions signed into law, the obvious complaint would be that Obama is acting unconstitutionally. That said, I’m not seeing how the Congress, as an institution, is harmed by Obama’s actions here.Report
I’m always suspicious when the word “should” is used is used in these types of argument – why should ignoring a law be viewed as more institutionally injurious than ignoring a subpeona?
I think “should” in this context is a hedge, given that until the Court says so, we don’t know that they’ll actually rule that way.
But in a less hedging approach, I would say that ignoring a law should be understood as more institutionally injurious than ignoring a subpoena because the lawmaking power is a much clearer exercise of constitutionally delegated power than issuing subpoenas, which is, arguably, a necessary power, but not an explicitly granted power.Report
James,
If we think the type of injury is substantive, then I prolly agree with your take here. But the quotes I provided suggest to me that the type of injury which standing (and a decision) would be based on have more to do with the exercise of formal properties under a constitutionally defined separation of powers. Maybe another way to express my criticism here is that Obama’s use of executive orders doesn’t infringe on the formal properties accorded congress: to create and pass legislation. Insofar as his actions constitute a harm, it’s that he’s not enforcing those duly passed and signed bills. Which would be violation of constitutional principles (and therefore constitute a violation of law) rather than causing an institutional harm.
And to make it clear here, I’m not really talking about standing so much as the logic under which a decision favorable to the GOP (or the House, I guess) could be argued.Report
I’m also not asking you to defend anything here, or challenging you to defend anything, since I haven’t read you as advocating for anything in particular. I just responded to you since you provided the linky that caught my attention.Report
I think I disagree in general although I’m willing change my mind if the context demands it. In my view ignoring a subpoena is ignoring Congress’s directive in pursuit of its duties. (I had thought it was an explicitly granted power somewhere in article 1, and I was going to “correct” you on that. But I looked it up and couldn’t find it. Maybe someone changed it in the last few weeks? 🙂 )
When it comes to actual laws, however, I draw a distinction between types of laws and whether a legislative body should have standing. If it is a “shall not” law, as in, “the president shall not give bus discounts to war widows,” and then the president issues an executive order to give bus discounts to war widows, then Congress ought to have standing to sue.
If it is a “shall” law, as in, “the president shall grant bus discounts to war widows,” and then the president refuses, then maybe the Congress should have standing to sue for compliance. Or maybe not. Maybe we could get Saul De Graw to represent the widows who have standing and sue the president themselves. (Or maybe we can get lawyers who represent widowers to sue on the grounds of equal protection.)
If the law says “may” or doesn’t say “shall,” as in “an Act to establish a cabinet level department for overseeing the provision of bus discounts to war widows” that doesn’t explicitly require the president to issue the order but that strongly implies that issuing the order is what the act intends, then I think Congress’s standing to sue is debatable. Or at least the “oughtness” of it (I don’t know what the current law or jurisprudence would say).Report
Obama’s use of executive orders doesn’t infringe on the formal properties accorded congress: to create and pass legislation. Insofar as his actions constitute a harm, it’s that he’s not enforcing those duly passed and signed bills.
It can be argued that letting the institution tasked with executing the laws “flout” the laws harms the lawmaking institution because it frustrates that institution’s legitimate authority to achieve its goals.Report
Gabriel,
I think your comment and my comment, while not identical, are not in conflict.Report
GC, I don’t want to push too hard on this issue, but it seems to me that a clear distinction between a harm and a violation of constitutional law needs to be maintained here. When a President willfully refuses to enforce a particular law, it seems to me that he’s acting prima facie unconstitutionally (unless the power to so act is explicitly accorded to the office) and not that his actions constitute an injury to another branch’s interests. For that to be the case, his actions would have to actually infringe on that branches duly accorded powers, or violate general procedural requirements that apply specifically to that branch, or somesuch. Institutional injury, as I’m understanding it (and it may have a broader meaning than I’m assuming it does) requires a violation of separation of powers. That’s why I think ignoring a subpeona may in fact be a more serious institutional harm than merely ignoring a law: subpeona power is a power accorded to congress as a formal check on the executive branch (whether they choose to exercise it or not). On the other hand, whether or not the executive enforces certain types of laws devolves to whether that action is constitutional or not and refraining from enforcement cannot be construed as causing an institutional injury since doing so doesn’t impinge on any of the formal properties accorded COngress.Report
@stillwater
I think I agree, in particular with most of this:
(I disagree that it’s “accorded to congress as a formal check” because while it’s probably there by implication, it’s not “formally” accorded to congress, which is a mistake I would have made if I hadn’t gone back and read the constitution.) I have a hard time giving a legislative body standing to sue, and to me the type of injury you describe might be the only case in which I’d endorse it. Even my “shall not” example is iffy….so maybe I’m changing my mind a bit.
I do think I disagree with the following, or if I do agree with it, I’m not sure what to make of the implications:
I certainly agree, or am close to agreeing, that it’s not an injury to another branch’s interests (and again, maybe I’m going back on my “shall not” example….but maybe not). But I don’t think refusal to enforce a particular law is prima facie unconstitutional. The president, as executive, has only limited resources to enforce all the laws he is charged with enforcing. As a result, he can set priorities. And so I think, especially when it comes to, say, criminal laws, he should have wide latitude in not enforcing laws.
Again, though, I guess “shall” and “shall not” enter the picture. If Congress by a duly passed, constitutional law orders the president to do something, the president must obey it or if he disobeys it, does so only to test its constitutionality.
I fear that somewhere along this line I’m contradicting myself. But I’m having a hard time finding it.Report
letting the [executive] “flout” the laws harms the lawmaking institution because it frustrates that institution’s legitimate authority to achieve its goals
Doesn’t this kind of un-separate the powers a bit? It’s the people’s legitimate authority to achieve what they’re looking to achieve through the institutions provided for in the Constitution. The lawmaker makes the law; the executive executes them; those are separate. The executive is not a mere tool for the achievement of the ends of the legislature, otherwise in fact the powers are not separated.
The way the that flouting the execution of the laws itself harms the separation of powers is not in frustrating (or advancing) the achievement of the legislatures aims – the executive can do this just by being more or less vigorous while not openly disregarding provisions of law selectively. (I.e. the actual achievement of the legislature’s ends is fully in the executive’s hands, and the executive retains a fair bit of interpretive control over how to do that.) The way the that flouting the execution of the laws harms the separation of powers is when that flouting essentially usurps the function of writing the law in the first place.
So I would correct the quote to say “letting the [executive] “flout” the laws harms the lawmaking institution because it frustrates that institution’s legitimate authority to carry out its function, which is to determine what the language (and, to a point, the meaning) of the law will be.”Report
Michael D,
Good comment! You said my meanin much bettah!Report
@michael-drew
The way the that flouting the execution of the laws harms the separation of powers is when that flouting essentially usurps the function of writing the law in the first place.
That’s what I meant, but you’ve said it more clearly than I did, and I strongly approve of that particular phrasing. (Thanks to Stillwater’s comment for drawing my attention to this comment that I had not noticed previously.)Report
I’m not strictly disagreeing with the notion that the President ought to enforce the laws as written, and Congress, not the President, gets to legislate. There comes a point, though, that the executive gets to set priorities and make decisions about the best allocation of resources. That’s inherent in the nature of executing laws.
For instance, I don’t think that the President can constitutionally stop using ICE resources to interdict passage of undocumented aliens into the United States, since Congress has instructed that such interdiction occurred, and allocated resources dedicated to that objective. But the President can decide that interdiction is most effective when resources are concentrated on preventing overland passage into the four states that border Mexico rather than, say, passport control at sea and air ports of entry.
A more interesting question would arise in my mind if the President (not this one, but some hypothetical future President) were to decide that allocation of interdiction assets should be equally-distributed amongst the 50 states, so that there were as many assets in Kansas as there were in Arizona; as much international border patrol in New Hampshire as in Texas. An allocation like that would seem to consciously fly in the face of any reasonable argument about the deployment of those resources, such that it would be difficult to say that a faithful execution of the laws was underway.
Somewhere in the gray area is an instruction to U.S. Attorneys to not prosecute individual users of marijuana in Colorado and Washington State, based on state laws decriminalizing the Federally-controlled substance. If the laws are enforced in those states only against those who are trafficking in large enough amounts of the stuff to fairly imply interstate activity while letting the college kids spark up without any substantial fear of arrest, that is at least a colorably faithful enforcement of the Federal law in a manner harmonious with the contrary state law. But I can see a reasonable argument to the contrary.Report
Yes, that’s why it’s hard to make generalized statements. Discretion in implementing laws is not simply necessary, but truly unavoidable. And there’s no clear line between legitimate discretion in implementation and rewriting the law.Report
+1 to Burt, and I think we can all agree that the debate over the president’s forthcoming executive action on immigration is going to be very interesting.Report
A tangential story is the Colorado case slowly making its way through the federal court system. Some years back, by citizen initiative, Colorado voters modified the state constitution so that the legislature cannot ever, under any circumstances, raise tax rates or impose a new tax. More recently, members of the legislature sued the state, claiming that this restriction violated the clause in the US Constitution guaranteeing a representative form of government. The conventional wisdom was that the case would be tossed quickly on standing grounds.
Instead, the federal district court held that the legislature as a body had suffered injury because the voters stripped them of a core legislative power enjoyed by Congress and every other state legislature in the country, had no political recourse (under the Colorado constitution, the legislature can only refer amendments to the voters), so had standing. A three-judge panel of the appeals court upheld the district court. This month, the full appeals court refused to rehear the case so that ruling stands for now. Those of us watching assume that the state will appeal the standing question to the SCOTUS.
Standing seems to have gotten stranger in recent years.Report
TABOR?
That’s interesting Michael. I seem to remember a lot of grumbling about how that bill restricted COngress from performing its duly accorded functions, but I wasn’t aware that there was a suit against it.Report
If the legislature has standing, I imagine the case still would face a huge hurdle on the political question doctrine.Report
It’s already three steps farther than most thought it would get. I’d have to go back and reread the opinions, but IIRC both the district court and the appeals court arguing de novo said this case is enough different from precedent that the political question issue should be decided at trial. And cited some SCOTUS opinions that they read to say, “We generally defer to the other branches on this type of question, but we don’t to defer.”
My personal opinion is that if the matter were somehow brought before Congress — the logical non-judicial branch to settle the matter — the vote would be overwhelmingly against TABOR. Just because Congressional delegations are not going to piss off their own state legislatures. I’d say it has a much better chance of surviving in the courts than it would in Congress.Report
That should read “don’t have to defer”. Man, I wish there was some way to do simple edits.Report
An interesting question is…while ‘the legislature’ might have standing, does *The House* have standing by itself? The House is not the entirety of the legislature.Report
Are we on the same wavelength? I thought TABOR was a state thing (passed as amendment 1 in 1992), and not a federal?Report
while ‘the legislature’ might have standing, does *The House* have standing by itself?
A reasonable question, but the answer should be yes. For the most, aside from making laws and the Senate’s role as court if impeachment, the chambers are not very dependant on one another. For example, each can independently conduct investigations and subpoena witnesses. The key hurdle, as I understand it, is that it has to be an act of the chamber–an official action representing the legislative chamber as an institution–rather than an act of individual members representing themselves as persons, who happen to be members of that institution.Report
@james-hanley
For the most, aside from making laws and the Senate’s role as court if impeachment, the chambers are not very dependant on one another.
Well, yes, but ‘making laws’ is presumably *exactly* the power that the House is disputing the President is infringing upon by not enforcing the law.
If the president was refusing to allow the House to conduct investigations, that would be something the House, by itself, could object to and have standing. Same with interfering with subpoenas, or interfering with swearing in members, or interfering with impeachment, or any of the things the House, by itself, can do.
But the House cannot ‘make laws’ by itself, and hence the President cannot harm the House’s power to ‘make laws’ by refusing to enforce laws. It’s Congress (and the president) that makes laws, so presumably Congress is the one harmed if that power is infringed on, so they are the entity with standing.
Or, impossibly, only Congress and the president *together* have standing, or Congress but only with a veto-proof majority, but now we’re just getting silly. (Then again, standing often is very silly.)Report
Well, it’s a poorly defined area of law. Hopefully this case helps define it.Report
Wait, I’m confused. When you say:
had no political recourse (under the Colorado constitution, the legislature can only refer amendments to the voters),
Do you mean that they have no political recourse besides referring an amendment to the voters? Or do you mean they didn’t have that, that *the law itself* bans from from referring such an amendment to the voters. (I.e., the amendment not only doesn’t let the legislature pass tax increases, but also doesn’t let it refer any amendments to the voters that would increase taxes, or repeat the original tax amendment?)
I can actually see a pretty strong argument that the later would be unrepresentative, but I don’t think that’s what you meant.
Either way, I can see clear standing…but my ‘what has standing?’ filter is has always been a bit broader than the courts.Report
Do you mean that they have no political recourse besides referring an amendment to the voters?
Correct. A referendum is the only way the General Assembly can attempt to raise tax rates. The legislature can, and has, referred TABOR-related provisions to the voters (two-thirds supermajority in both chambers required). No state-wide tax increase has ever been approved, although Ref C in 2005 relaxed some of the other TABOR restrictions modestly.
My reading of the court opinions in the case so far is that the courts say all of the legislature-related political-recourse precedents involved cases where there was some way the plaintiffs could achieve their goal on their own if enough members agreed (supermajority votes, impeachment, etc). And that the Colorado situation — a certain class of otherwise valid laws is simply off limits to the legislature — is sufficiently different that the courts are unwilling to decide during a preliminary hearing, but want to hear the arguments made at trial.
My perception is that the defense has been woefully unprepared thus far. They gambled — and have lost, so far — that they could simply say, “Political question, no standing, case dismissed.” There’s always the possibility that that’s intentional, I suppose. Both parties have found themselves tied up in knots by TABOR when they controlled the legislature; other changes in the Constitution post-TABOR make it almost impossible to repeal it at the state level; “losing” in federal court might be a viable strategy.Report
Is akamaihd.net screwing with anyone else?Report
Sue like the wind?
Got to admit, Tod–I’ve never heard that similie before…Report
while avoiding the terrible publicity it would garner by voting to impeach a popular President
Or they might, you know, say “screw it” and just impeach him.
“None of us want to do the thing that’s left for us as an alternative,” King said on “Fox News Sunday” when host Chris Wallace asked if Obama delayed more deportations could lead to impeachment. “I think Congress has to sit down, have a serious look at the rest of this constitution, and that includes that ‘i’ word that we don’t want to say,” Report
The Tea Party clowns seem to either lack enough understanding of the process or lack the ability to figure out what 2/3 of 100 is because they don’t appear to understand the impossibility of a conviction. They also seem to lack historical memory for their own party, and the effect impeachment of Clinton had.
Boehner understands the process, can do the math, and has the memory. What he may not have is sufficient control of his membership.
But I’d like reporters to start asking folks like Steve King and Sarah Palin if they think they can get 67 votes for conviction when that would require at least 22 Democrats, or 20 plus the 2 independents who caucus with the Democrats, to vote to convict the president. Or better yet, don’t give them the numbers, and just ask them how many Democratic/independent votes it would take to convict if the Republican senators voted unanimously for conviction. See if they can actually manage the numbers.Report
I don’t think they really intend any of this to end with Obama being removed from office.
It isn’t harmless posturing either.
The Tea party is in a frothing but inchoate rage, and anything that is a thumb in the eye to Obama is intensely gratifying to them.
Its Cleek’s Law on steroids. There isn’t any “conservative” movement any more.
Its just unmoored, unhinged rage and fury at Obama and mythical liberals. We could all do our own armchair psychological analysis, but it is pretty clear to me at least, that none of this has anything to do with any sort of actual desired political result.Report
@james-hanley I’d like to hear your take on this, both because I like reading your take on things, and because you don’t have either foot planted in the left-right bubbles:
1. Has Obama done anything that would, in less crazy times, be considered remotely impeachable (i.e. “high crimes and misdemeanors”)?
2. Has Obama done anything that places him outside of historical norms for presidential behavior? I’ve seen assertions about czars, and presidential declarations, and signing statements, and so on, that assert that he’s gone crazy wild with those prerogatives, but, from I’ve been able to see, he seems quite typical in his use of all of these tools.
3. The beliefs and portrayals of Obama (and his goals and motivations) that come from the right–and not just the crazy right, but the mainstream parts of the conservative coalition seem, to me, loony. I regularly hear assertions that he clearly is trying to destroy America, establish a socialist / authoritarian regime, end America’s leadership, liqudate or fragile border, and enrich himself and his cronies at America’s expense.
And, granting that I tend to be on the liberal-ish side of the spectrum, I see none of this–these all seem like complete and unhinged fabrications. Obama seems, to me, an almost completely honorable man, doing what he can to advance a reasonably modest liberal agenda in difficult times.
So: do you think there’s much of anything to these conservative “critiques” of Obama? Is he outside of historical presidential norms on any of his behavior?Report
The Tea party is in a frothing but inchoate rage, and anything that is a thumb in the eye to Obama is intensely gratifying to them.
…it is pretty clear to me at least, that none of this has anything to do with any sort of actual desired political result.
Except that it was the House leadership, Boehner, et al, who authorized the vote on suing the President, and all but 5 Republicans voting for it–the 5 abstainers reported to be conservatives who felt it didn’t go far enough.
So your thesis that is just Tea Partyism is belied by the evidence.
And as I noted above, there is a strategy here. And unless we’re just being blind partisans looking to discredit the other side, we have to try to discern the actual strategy the other side is pursuing (even if we conclude that it’s stupid as strategy, and not just something we dislike). The strategy here, I would argue, is 1) to make Obama implement the law more quickly to create political backlash, and 2) to discredit Obama, and by extension his supporters in Congress, by getting a court ruling that he has overstepped his authority (violated his constitutional boundaries).
It may not work. It may be a hail mary. But it’s a strategy, and just describing it as Cleek’s Law, or Tea Partiers Gonna Hate, demonstrates an unwillingness or inability to actually think through the logic of the situation.Report
@james-hanley I agree that one needs to look for a strategy behind the scenes, but I don’t know that these days looking to the traditional battle of R v. D is the right place place your bets.
Granted, it *may* be a Hail Mary to undermine Obama, but it seems far more likely to me that this is a strategy that has far more to do with signaling to an angry base that you’re behind them.
Which really is kind of a more complicated version of “Tea Paetiers gonna hate” at the end of the dayReport
Or, and I know how unusual this would be for them, they’re using words correctly, and mean “impeach” rather than “convict”. Could they browbeat enough of the GOP members of the House into submission to get an impeachment vote? It seems unlikely (even 20 holdouts would block that) but not impossible. And look at the possible gains:
* Even if it failed, they’d have a list of RINOs to primary in 2016.
* If it succeeded, they’d have an unignorable forum for presenting all of Obama’s crimes to the American people.
* Again, if any senator dared to vote not to convict, he’d ipso facto be a RINO to be primaried next time out.
* The money-raising possibilities of “support the impeachment” would be unparalleled.
* In 2016, they run against not just Obamacare, which was forced through on a pure party-line vote, but the criminal traitor Obama, who kept his job the same way.Report
@snarky-mcsnarksnark
With the caveat that these responses are all off the cuff…
1. Has Obama done anything that would, in less crazy times, be considered remotely impeachable (i.e. “high crimes and misdemeanors”)?
Yes, his use of the official secrets act to keep people from having their day in court. Or more precisely, that ought to trigger impeachment, but it didn’t for Bush, either, so as impeachment actually goes in this country, no.
2. Has Obama done anything that places him outside of historical norms for presidential behavior?
No. The unilateral authority of the president has grown fairly steadily for about a century now, and a plausible case can be made that Obama has extended this power a bit more, too, but not in any startling leaps forward. The presidency needs to be reined in, but not because of Obama.
So: do you think there’s much of anything to these conservative “critiques” of Obama? Is he outside of historical presidential norms on any of his behavior?
No, all recent historical presidents have been power-hungry demagogues and Obama’s no worse than the rest of them, and surely not as bad as the worst of them (e.g., Nixon). Why this storyline is out there among “respectable” circles is something I don’t understand. I suppose it has something to do with modern media and the growing partisan divide (but I don’t know why that’s happening, either).Report
It seems to be an article of faith for the Tea Party that there is a majority of Americans who long for a return to the kind of government we had circa 1890 — before the regulatory agencies, before the Federal Reserve, before social insurance, before civil rights — and if the TP just shouts loud enough and long enough that majority will wake up and realize where their true interests lie. They don’t have to appeal to what everyone else thinks is today’s swing voter; post-awakening, those voters will be far to the left of the median.
I have a friend on Facebook who is a conservative, but appreciates the reality of winning elections and the necessity to convince swing voters in swing states. He gets shouted down by the TP contingent whenever he says that, though.Report
Tod,
Not outside the bounds of possibility, but I don’t think it’s really explanatory. Boehner’s goddam sick and tired of the Tea Partiers. He’s constrained in what he can do because he’s afraid of a Tea Party challenge for Speaker. But he and the moderates know the damage that is being done, and they’re not going to give the TPers more than they have to. Unanimous moderate (or at least, non-TP, god knows there’s few moderates anymore) support for the lawsuit doesn’t fit that story line well.
And even if that is the storyline, it can also be understood as democratic responsiveness. That is, there are ways we can tell even that story that don’t settle for the cheap thrills of pure partisan framing.Report
@james-hanley
So your thesis that is just Tea Partyism is belied by the evidence.
And as I noted above, there is a strategy here. And unless we’re just being blind partisans looking to discredit the other side, we have to try to discern the actual strategy the other side is pursuing (even if we conclude that it’s stupid as strategy, and not just something we dislike). The strategy here, I would argue, is 1) to make Obama implement the law more quickly to create political backlash, and 2) to discredit Obama, and by extension his supporters in Congress, by getting a court ruling that he has overstepped his authority (violated his constitutional boundaries).
I believe it is just really Tea Partyism, and the purpose of the lawsuit is that Boehner thinks:
a) impeachment would be disastrous for Republicans in the midterms
b) if he doesn’t impeach, or at least do something, he will be turfed out as Speaker. (Or even turfed out of the House in 2016…I’m wondering how much Cantor is weighing on him.)
The rest of the reasonable Republicans are going along with it for basically the same reason. It’s not ‘just’ the Tea Party…but only because there’s a bunch of other people trying to encourage the Tea Party to do something slightly less destructive than impeachment.
I was thinking suing over the delay was merely a way to make it about the ACA…except I’ve suddenly realize that means the lawsuit has no grounds come 2015, so can just be made to silently disappear *after the midterms*.Report
@michael-cain
That belief needs a name, maybe “The Unheard Preponderance”? Something like that, anyway.Report
@james-hanley
Yes, his use of the official secrets act to keep people from having their day in court. Or more precisely, that ought to trigger impeachment, but it didn’t for Bush, either, so as impeachment actually goes in this country, no.
BTW, amen to that. There is a lot of executive lawless going on, and has been for *decades*.
Another example: The NSA, for example, lies to Congress every single time they’re asked about what they’re doing. Every time. A constant stream of lies. I’m not sure if that’s something that the *president* should be impeached over, but it might be an interesting idea to try impeaching and removing from office(1) the Director of the NSA, and everyone who lied, every time that happens. (They could be criminally charged with lying to Congress, but the NSA likes to make up their own words and use them, and the executive would claim national security bullshit and the trial would last forever, etc. No. Just impeach the bastards…I don’t care if they ‘technically’ tell the truth in their own heads, the executive branch does not get to mislead Congress about what it is doing, ever, and if Congress find them doing that, those people should be thrown out of the government forever.)
1) Which also keeps them from ever holding an office or position of trust in the future.Report
The muted more-than-half.Report
The muzzled masses….they’re not even being allowed to speak.Report
The quieted quorum.Report
Nixon was ahead of his time.Report
The standing issue will work itself out one way or another, that’s fine. What I’m more interested in is what we would say is the most appropriate way for Congress (but really we’re talking about the House, since the most extreme way, impeachment, is in their hands, and likely most other forms of accountability are at least partially in each chamber’s hands individually as well) to pursue concerns about inadequate enforcement of the law by the executive. What means, short of impeachment, would we say are primarily prescribed for that purpose in our system? Trying a lawsuit seems not inappropriate to me, but being that it’s unprecedented it seems like it’s not likely the primary indicated way for the House to pursue accountability on this.
So what is? Are the prescribed means more or less just impeach-up or shut up? Or am I wrong, and a lawsuit is clearly an option that would be envisioned or prescribed for these purposes by our system when the House doesn’t deem the issues impeachment-worthy? What should the House be doing to pursue these concerns?
I’d also be interested if anyone has any links to assessments of whatever legal defenses the administration has offered of the discretion being claimed in the employer mandate delay. Sure they’re not just saying, “Yeah, we acted without statutory or precedential justification on this, deal with it.” What have they had to say for themselves?Report
The Framers assumed Congress would have an institutional interest in standing against the president, but they didn’t envision that Congress would organize along party lines so that party interest would undermine a unified institutional interest. Nor did they foresee that district-based representation would make Congress a collection of individual interests that would undermine a unified institutional interest. Nor did they foresee, other than to fear, the rise of candidate-centered presidential elections that would make the president the tribune of the people, so that to impeach him is damn near to impeaching the public.
Impeachment has been simultaneously seen as a nuclear option and been used primarily for partisan political purposes. Two impeachments, both purely partisan, and both failed. One prospective one that was bipartisan and preemptively led the president to resign, but which “traumatized” the country so much we couldn’t muster up the will to impeach the next one with a major scandle.
It’s a failed tool, damn near worthless, but it’s all the Framers gave us. Passing legislation to constrain a president who’s ignoring legislation is self-defeating. Polk was “censured” by Congress, which amounted to a fierce finger shaking.
No, there’s nothing else to be done short of a fundamental constitutional restructuring.Report
So, a few things:
1) Our system has evolved a lot since the Framers framed some stuff. It could be that some process short of impeachment could be identified as the one most indicated in our system for pursuing this interest, even though the Framers didn’t envision it. Or, it could be that none can be, short of impeachment. So the question isn’t limited to what the Framers envisioned; it’s really just what is the most appropriate way for Congress to pursue this interest short of impeachment, if a lawsuit of this kind isn’t it? (And if none can be named, then the conclusion should that such a lawsuit is it, because I don’t see any strong argument that a lawsuit like this is, on its face, clearly in appropriate for this end.)
2) So, given all that, where do you come down on the lawsuit? Meaning, I know you support it, but how not-ideal is it? Because, while I take it that, in these circumstances, for you, the most appropriate means for pursuing the accountability the House is pursuing would be impeachment (correct me if not), nevertheless we actually could take this action to speak for the sense of Congressional leadership that they honestly don’t think that, but that they do want to try to impose some accountability on how the laws are being enforced. For that end (because we could probably identify some territory where you would agree that impeachment is not justified, but pursuing that accountability would be), is a lawsuit like this appropriate, or is it merely a very unfortunate ad non-ideal necessity (either because impeachment should be so not-a-big deal that it should suffice any time they want to do that, or because we should wish there were other processes available)? I.e., in your view, if we could get the political fallout from impeachment to where you would like it to be, would you say that the means for forcefully pursuing that kind of accountability under our system should be regarded by members of Congress as only either impeachment or not (with censure existing as a non-forceful option in the not-impeachment box)? Or is a lawsuit like this a means you would want them to consider? And, given what we know now, if the system as it exists in fact prescribes only impeachment or very impotent other means for pursuing accountability in the Executive on most matters of law enforcement, would we like to give Congress more options beyond impeachment, weak expressive means, and lawsuits with little chance of success given the lack of precedent for their being used for this purpose? Or, if we were reforming just that aspect of the system now, would we still want there only to be essentially impeachment or not?
(It occurs to me that we haven’t really considered the power of the purse as another means at Congress’ disposal. There are limits to that, even beyond the limits to their willingness to use it. Which raises the bigger question: given what we now know about the political culture of the U.S. (figurehead president, parties, etc.), how much would the system have to be reformed to significantly mitigate these dynamics’ effects on outcomes and power holding? I.e., how free and clear of this stuff are even parliamentary/prime minister dynamics, inasmuch as the modern media is likely facilitate attempts by any head of state to seek a tribune-like relationship with the people?)Report
1) Our system has evolved a lot since the Framers framed some stuff.
For certain values of “a lot.” Other than broader extension of voting civil rights/liberties, and a few tweaks about presidential elections and terms, we’ve made few really substantive changes to the structure of the system. Constitutionally, we shifted senatorial selection from the state legislatures to the people, which doesn’t get us anywhere here. And extra-constitutionally we shifted presidential nominee first away from party leaders to party active-participants to the mass public. That’s pretty much it for significant evolution of the system. (And the latter change is where our real problem lies.)
It could be that some process short of impeachment could be identified as the one most indicated in our system for pursuing this interest, even though the Framers didn’t envision it.
The depressing reality is that I’m widely read in this area, but I’ve yet to see one proposed. Most of the stuff written boils down to “Congress needs to care more about its institutional interests,” which doesn’t really get us very far.
So the question isn’t limited to what the Framers envisioned; it’s really just what is the most appropriate way for Congress to pursue this interest short of impeachment, if a lawsuit of this kind isn’t it?
I have no disagreement there. I’d just say that if a lawsuit isn’t it, I’m waiting to hear what is it. However “surely there’s something we can do” cannot be assumed to be a true claim.
(And if none can be named, then the conclusion should that such a lawsuit is it, because I don’t see any strong argument that a lawsuit like this is, on its face, clearly in appropriate for this end.)
Yep. As partisan as it is, as unlikely to succeed as it is, it’s the best we’ve got at the moment. But what we really need is a fundamental constitutional change, for which I see no real prospects. (Unless we get a constitutional convention, then all my bets are off.)Report
Would you agree that “we could probably identify some territory where you would agree that impeachment is not justified, but pursuing that accountability [trying to force the executive to enforce the law as Congress would have him do) would be,” such that it would be good to have some means for that other than impeachment but stronger than what we can currently find? Or not necessarily? I.e., do you feel that what you’d ideally want is actually what we have – only either impeachment (with a “High crimes and misdemeanors” standard”) or essentially no real coercive measures, and you’d just like the politics around that measure to change? Or, if we could write in some new, formal, intermediate-but-still-forceful means short of impeachment for pursuing that accountability, but formally change nothing else in the system, would you rather do that?Report
I’d be satisfied with a functional in-between. The problem is that I’m not imaginative enough to think up what would be an effective punishment/reprimand. Maybe withholding of pay?
And while I’d be satisfied with an in-between, I really don’t think we should see impeachment as a nuclear option. We change executives regularly, and we have both constitutional and legal processes whereby we have a previously designated replacement waiting in the wings. And I object to our tendency to view presidents as semi-sacred figures, such that impeachment is an awful step.*
To be an effective check, it can’t be seen as only legitimate in extraordinary cases, and not always even then. And that’s a key to the intermediate step–it not only has to work a real punishment that the president would wish to avoid, but it has to be seen as normal politics, not extraordinary politics.
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*The haters on each side don’t necessarily view the other party’s presidents that way, but more moderate Americans tend to.Report