As reported by the Second Amendment Foundation, this morning the Obama administration joined a U.N. majority which called for convening a new conference to create a global Arms Trade Treaty.
Archive for the ‘Obama’ Category
Beginning today, pundits are going to offer a wide range of explanations for Obama’s victory. But I think the simplest and most obvious is that he won because the economy had improved just enough since 2008 to give him the edge. As I pointed out back in September, standard models of presidential election outcomes based primarily on economic variables predicted, on average, that Obama would get 50.2% of the popular vote. Although late West Coast results will increase this total slightly, it looks like he actually got about 50.4%. That’s a very close match.
The econometric models generally assume a two party race. In reality, two third party candidates, Libertarian Gary Johnson (1 percent) and Jill Stein of the Green Party (0.3%) got statistically meaningful shares of the vote. If we plausibly assign most of Johnson’s vote to Romney and most of Stein’s to Obama, we end up with a roughly 51-49 split in a hypothetical “pure” two party race. We get a similar result if we throw out the third party votes and just look at Obama’s share of the 98.5% of the electorate who voted Democratic or Republican. Obama slightly outperformed economic expectations, but not by much. Republicans who thought that the state of the economy gave Romney a huge advantage forgot that voters care about the directional trend as well as the absolute situation.
In my view, much of the electorate gave insufficient weight to the possibility that Obama’s policies made the recovery weaker than it otherwise would have been, and they also likely gave him too much credit for at least some recovery that would have happened regardless of who was in the White House. Economist Casey Mulligan recently published an important book defending the former theory. If you believe that the TARP bailout was the key to recovery (which I do not), it’s worth recalling that George W. Bush and John McCain both supported it. It would surely have proceeded apace had McCain somehow managed to win the 2008 election. But politically ignorant voters often give incumbents too much credit for positive economic trends that happen during their terms, and too much blame for negative ones. In some past elections, such as in 2010, Republicans were the lucky beneficiaries. This year, it was Obama and the Democrats.
This year’s outcome was not set in stone. Obama’s advantage derived from the economy was small enough that an unusually strong challenger or an unusually weak incumbent might have negated it. The same goes for some dramatic noneconomic issue that cut in favor of the challenger. But Romney was not an unusually appealing candidate, nor Obama an unusually poor one. And Romney wasn’t able to take advantage of any major extraneous issues, and indeed was probably slightly damaged by some of them (the death of Bin Laden, Hurricane Sandy, etc.).
Obama did do better in electorate vote count, where he will end up with a 332-206 margin, than in the popular vote. He did it by winning nearly all the close swing states. I leave it to others to determine to what extent that happened because the electoral vote map now slightly favors Democrats relative to the popular vote (a change from 2000 and 2004, when it slightly favored the GOP), and to what extent it was a superior Democratic “ground game.” I suspect both factors were at work.
The above should not be interpreted to imply that ideology and noneconomic issues don’t matter at all. A party wildly out of synch with the public on one or the other may well lose even if economic conditions are somewhat favorable. But, despite frequent claims to the contrary, I don’t think either the Democrats or the Republicans deviated from public opinion to such a huge extent, though both are at odds with the median voter on some issues. If swing voters paid close attention to the issues and were well-informed about politics, they might punish even small deviations from their preferences. In reality, however, they tend to be disproportionately ignorant, and generally base their votes on broad economic trends rather than detailed consideration of issue positions.
UPDATE: I should emphasize that attributing Obama’s victory in large part to the underlying economic situation does not imply that the GOP made no mistakes in crafting its message or that the party doesn’t need to reach out to a wider range of voters. An unusually strong candidate or message could have overcome Obama’s relatively narrow advantage. And a party with a broader base can more easily overcome adverse economic conditions. At this point, it would be silly to suggest that the Republicans don’t have any significant political weaknesses. But analyses of their flaws should not begin with the false assumption that Romney and the party flubbed an opportunity despite having the odds strongly in his favor. In reality, they were slightly against him.
As I see it, Obama’s reelection is overall likely to cause more harm than good. But there is one important positive aspect that deserves special mention. Obama’s reelection victory cements the idea that having an African-American president is normal. For a nation with a long history of racial oppression – one where most blacks didn’t even have the right to vote just fifty years ago – that’s an important sign of progress.
Obama’s 2008 victory was, of course, an even more important breakthrough on this front, as I, among many others, emphasized on the night he won. But that win could have been written off as a historical fluke, caused in large part by public revulsion at the financial crisis and the many failings of George W. Bush and the GOP. His reelection this year can’t be dismissed in that way. The Republicans had a real chance to win this year, and Mitt Romney, for all his flaws, was not as fatally compromised by Bush’s legacy as McCain in 2008.
The next time we elect a black president – and I am sure there will be a next time – it will be seen as business as usual. Similarly, few people are exercised about Catholics in high political office anymore or about the fact that there are numerous Jews in Congress and on the Supreme Court. It would be naive to assume that Obama’s political success signals the complete disappearance of racism or anything close to it, any more than we have completely eliminated anti-Semitism. But it’s certainly a sign that racism has greatly declined, and that African-Americans are more fully accepted in mainstream American society than ever before.
Does this sign of progress outweigh all the bad things that Obama has done in office, and may well do in the next four years? I think not. But it should be celebrated even so.
All of the major networks have called the election for Obama, and it’s pretty obvious that he’s going to win, even though the Romney campaign has not yet officially conceded. It’s an impressive political achievement for the president and his supporters, especially if (as now seems likely), he does better in the popular vote than most national polls predicted. The Democrats also scored an important success in retaining control of the Senate in a year where the GOP hoped to make significant gains.
For me and most other libertarians, this election was always a choice of evils and I shed few tears for Mitt Romney. But I do think he was the lesser of the two evils on offer this year. Obama’s reelection will likely have at least two major negative consequences from my point of view. First, Obamacare is likely to stay in place. Although it remains somewhat unpopular – as shown the by the president’s reluctance to bring it up in the campaign – he is going to hold onto it successfully. Second, Obama will get to replace any Supreme Court justices who retire or pass away during the next four years. With four justices in their mid to late seventies right now, there’s a real chance he will get at least one or two more nominations. All conservatives and libertarians can do is hope that Justices Anthony Kennedy (76 years old) and Antonin Scalia (also 76) will remain healthy and uninterested in retiring. But even if Obama gets to replace one of the liberal justices, such as Ruth Bader Ginsburg (79), there’s a big difference between a justice who probably has only a few years left to serve, and a much younger one who could stay on the Court for 25-30 years or even longer.
On the other hand, the GOP did retain control of the House of Representatives, so divided government will continue. Other things equal, divided government helps restrain the growth of the state. And exit polls show that a strong majority of Americans believe that government is “doing too much.” Whatever mandate Obama may have, it is not a mandate for increasing the size of government, or perhaps even one for keeping it at its current bloated size. In considering Obama’s victory, it’s important to remember that a close win akin to the GOP victory in 2004 was roughly in line with projections from standard electoral models based on the state of the economy. Although the state of the economy was poor, it was on just enough of an upward trend relative to 2008 to give Obama a better than even chance of winning. When the final vote results are tallied, it may turn out that Obama has outperformed historical expectations; but probably not by a large margin.
Thus, it’s not out of the question that Obama’s second term will result in a “grand bargain” with the congressional GOP under which spending is cut substantially, while revenue is increased primarily by eliminating deductions rather than by raising tax rates: the famous proposal put forward by the Simpson-Bowles Commission. Obama will, I am sure, insist on raising tax rates “on the rich,” and probably get his way on that, at least to some substantial degree. But that might be a tradeoff worth making if it’s accompanied by major spending cuts. On that front, it’s worth noting that Obama and the Democrats are more willing than the GOP to cut defense spending, which even relatively hawkish libertarians like myself believe is necessary. That said, Obama’s victory probably will preclude – at least for some time – the kinds of major constraints on entitlement spending that Republicans such as Paul Ryan have been advocating, which is a big negative.
I also hope that the president turns out to be right in his prediction that the election results will lead the GOP to agree to a deal on immigration reform.
In addition to immigration reform (which seems surprisingly popular according to exit poll results I saw on CNN tonight), such libertarian causes as property rights and drug legalization also gained ground tonight, according to referendum results. Colorado and Washington just voted to legalize marijuana.
On balance, Obama’s reelection involves far more negative consequences for the cause of limited government than positive ones. If I thought otherwise, I wouldn’t have opposed it in the first place. But the political struggle over the role of government in our society is far from over.
UPDATE: I should emphasize that I’m not making any confident political predictions here. I think it’s possible there will be a fiscal “grand bargain” that is an improvement on the status quo from a libertarian point of view. I also think there’s a reasonable chance that we will get bipartisan immigration reform. But either or both could well go the other way. I have somewhat greater confidence in my negative predictions: that Obamacare will survive and, of course, that Obama will get to fill any Supreme Court vacancies that might arise between now and 2016. But both of these points are pretty obvious.
In my post comparing Romney and Obama on libertarian grounds, I noted that libertarians might have good reason to support Obama if it is likely that a second term for him would result in substantial immigration reform, by which I mean letting more immigrants in the country and/or letting more of the ones already here stay. For reasons I explained here, immigration reform is an extremely important libertarian issue. Unfortunately, I saw no reason to believe that Obama would give this issue any more priority than he did in his first term, where he accomplished very little when he had a massive Democratic majority in Congress in 2009-10, and actually ramped up deportations beyond anything seen under George W. Bush.
Since I wrote my previous post, however, the White House has allowed the publication of an off-the-record interview where the president predicts that he will get an immigration reform bill passed if he wins a second term:
In the interview, Obama said he is confident his administration will pass immigration reform and achieve the equivalent of a grand bargain with Congress.
After failing to achieve comprehensive immigration reform in his first term, the president said Republicans, given the large Latino vote, will be invested in changing the system.
“I’m confident we’ll get done next year is immigration reform,” Obama said in the transcript of the interview posted online by the paper. “And since this is off the record, I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community.”
“So I am fairly confident that they’re going to have a deep interest in getting that done,” he added.
This raises two important questions: Does Obama mean what he says, and is his political analysis correct? On the first point, it’s difficult to say. It’s not clear why Obama would not sacrifice immigration reform to other priorities in his second term, just as he did in his first. During the first term, after all, Obama needed to mobilize Latino voters to support his reelection. Yet he still didn’t prioritize immigration reform and still increased deportations. In a second term, that reelection incentive will be gone, though perhaps Obama will be motivated by a desire to help future Democratic candidates. On balance, I’m not sure whether I should believe Obama on this point or not.
Let’s assume, however, that the president means what he says, and that he really will make the issue a priority. Is he right that the GOP will cooperate with him out of a desire to attract Latino voters? Any immigration reform bill would have to get through a Republican-controlled House and a closely divided Senate. Obama can’t pass an immigration reform bill without substantial Republican support. Some prominent Republicans have indeed been saying that the party needs to change its stance on immigration in order to improve its electoral prospects. But that doesn’t necessarily mean they would pass an immigration reform bill at a time when a Democratic president and Senate could claim the lion’s share of the credit for it. That could help the Democrats with Latinos much more than the GOP.
And if the GOP really does believe they need to shift on immigration in order to increase their appeal to Latinos, why wouldn’t they be equally eager pass an immigration reform bill if Romney wins? Any Romney victory is likely to be a squeaker. Republican strategists will realize that he came very close to losing despite a relatively weak economy, and an incumbent with lots of chinks in his political armor. So Romney would be looking to increase his electoral appeal for 2016, as will a congressional GOP that would at most have very narrow majorities in both houses. A narrow Romney victory won’t necessarily lead the GOP to be any less eager to attract Latino voters than a narrow Obama victory. Obviously, there won’t be any immigration reform bill if Romney wins by a large margin and the GOP gets comfortable majorities in both houses. But that seems extremely unlikely to happen.
Obama assumes that a chastened GOP will be more willing to pass an immigration reform bill if Romney loses. Maybe. But the opposite scenario is at least equally plausible. A narrowly victorious Romney plotting his reelection strategy might be eager to court Latinos. That may be why he has attacked Obama for failing to pass immigration reform when he had the chance, and promised to “get it done” during his own first year. Romney has a long history of politically convenient flip-flops. So I wouldn’t put any great stock in this promise. But if Obama’s evaluation of the GOP’s political situation is correct, Romney might yet deliver on the promise – if not out of principle than out of political calculation.
If Romney tries to push an immigration reform bill through, Democrats might refuse to cooperate with him, just as Republicans might refuse to cooperate with Obama. But such refusal may be tougher for the Democrats to bring off because more of the Democratic base has a strong commitment to liberalizing immigration than the Republican base.
So if Obama is right about the GOP’s need to court Latinos, they may be as much or more likely to pass immigration reform under Romney. If he is wrong, then we may not get immigration reform regardless of who wins. If it’s Obama, a GOP that doesn’t sense any need to attract Latinos would simply refuse to support any Democratic reform bill.
On balance, therefore, a major immigration reform bill is at least equally likely under Romney as under Obama. Both candidates have promised to do it in their first year. It’s hard to tell which is more likely to keep the promise and successfully push a reform bill through Congress.
Reason has an interesting symposium on the presidential election in which various libertarian writers and political commentators give their presidential picks. In sharp contrast with Reason’s symposium during the 2008 election, there is almost no support for Obama. While many libertarians endorsed Obama four years ago, very few are willing to do so today. I myself thought that McCain was the lesser evil in 2008, and I believe that most of my 2008 concerns about Obama have been vindicated.
Not surprisingly, none of the Reason contributors are enthusiastic about Romney either. But many of those who compare the two major party candidates seem to consider Romney the lesser evil. I made a similar case in this post.
Many of the symposium participants say they will vote for Libertarian Party candidate Gary Johnson. I agree Johnson has many virtues. His positions on most issues are clearly superior to Romney and Obama’s from any libertarian perspective. The real question about Johnson’s candidacy – ignored by most of his Reason supporters – is whether the Libertarian Party is actually an effective vehicle for promoting libertarianism. Libertarians may be better off working within the two major parties and/or outside of party politics altogether. I have been skeptical about the LP’s effectiveness for a long time, and so far I haven’t seen much evidence that things have changed.
UPDATE: I wrote this post before noticing co-blogger Jonathan Adler’s post on the same subject. I am going to leave this post up, because it makes some points that Jonathan didn’t.
In this post, I complained about the total lack of discussion of judicial nominations in last week’s presidential debate. Tonight’s vice presidential debate was only slightly better. The only mention of the courts was a brief reference by Joe Biden while discussing the issue of abortion. In reality, as I explained here, there are many other issues at stake as well, including the future of constitutional protections for federalism, property rights, and freedom of speech.
In a recent post at National Review, conservative commentator Ed Whelan gave a more thorough explanation of the reasons why this election may be crucial for the future of the Court:
The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential debate....
Whatever the reasons for it, the silence certainly doesn’t correspond to the importance of the Supreme Court appointments that a re-elected President Obama or a newly elected President Romney may make in the next presidential term....
Control of the Supreme Court, perhaps for a generation, is very much up for grabs.
In general terms, the Court currently consists of four judicial liberals (Ginsburg, Breyer, Sotomayor, and Kagan), four judicial conservatives (Roberts, Scalia, Thomas, and Alito), and a ninth justice (Kennedy) who sometimes joins with the liberals and other times with the conservatives....
The nine justices fall roughly into two age cohorts. Four justices are in the older cohort (ages 74 to 79): Ginsburg (born in 1933), Scalia (1936), Kennedy (1936), and Breyer (1938). Five justices are in the younger cohort (ages 52 to 64): Thomas (1948), Alito (1950), Sotomayor (1954), Roberts (1955), and Kagan (1960)....
In other words, in the older cohort, there are two liberals, one conservative, and Kennedy, and in the younger cohort the conservatives have a three-to-two edge over the liberals.
It’s of course not a simple matter to accurately predict departures (voluntary or otherwise) from the Court. But there is a reasonable prospect that there will be one or two vacancies during the next presidential term, and it’s reasonable to expect that any such vacancies would come from the older age cohort.
As a hypothetical exercise, let’s assume that Ginsburg and Kennedy leave the Court during the next presidential term. If Obama is president and replaces them with liberals who are in their 50s, he will have established a liberal majority on the Court and he will also have created a four-to-three edge for liberals among the younger justices. By contrast, if a President Romney succeeds in replacing Ginsburg and Kennedy with relatively young conservatives, there will be a six-justice conservative majority on the Court, including a whopping five-to-two advantage in the younger age cohort, an advantage that might well ensure two decades of conservative dominance on the Court.
I think that Kennedy is more conservative than Whelan suggests. But that’s a minor point. The major one is that this election could have a huge impact on the future of the Court. Even if a reelected Obama gets to relace two liberal justices with younger liberals or Romney gets to replace two conservatives with younger conservatives, that will still have a profound impact. There’s a big difference between a justice who is likely to be around for only a few more years, and one who could well serve for thirty years or more. Given increasing life expectancies, a justice who is in his or her early fifties when appointed could easily serve until 2050 or even later.
I’m not saying this should be the only issue in the campaign or even the single most important. But it deserves a lot more attention than it has gotten so far.
UPDATE: A critique of this post claims that it is inconsistent for me to predict that a justice appointed by the next president could serve until 2050 (when he or she will be in their late 80s), but also that there is a good chance of one or more justices retiring in the next four years, even though they will be younger than that. I don’t think there is any inconsistency here. Life expectancy and the quality of medical care are likely to continue to improve, so the next generation of justices could easily live longer and remain healthy longer than the present one. Moreover, even if justices appointed by the next president serve “only” until 2040 (when they would be in their late 70s, like the oldest current justices), that’s still a very long tenure.
In recent weeks, libertarians have been debating whether there’s any good reason for us to support Romney over Obama, or vice versa. In contrast to 2008, when many libertarians endorsed Obama, few if any are making the case for him this year. There is near-universal agreement among libertarian commentators that Obama’s presidency has done more harm than good.
But there is some debate over whether Romney is likely to be any better. Stephen Green, the “Vodkapundit,” makes the case for Romney here. Doug Mataconis argues against. As for me, I voted for McCain in 2008 because it was the only way to maintain divided government and avoid a massive increase in government spending and regulation. Sadly, most of my 2008 fears about the effects of an Obama victory have been realized.
This year, however, I think the presidential choice is a much closer call than in 2008. The primary difference is that a reelected Obama would have to deal with a Republican-controlled House and at most only a narrow Democratic majority in the Senate. That greatly limits the potential harm he might do in a second term.
In this post, I break down the tradeoff between Obama and Romney on several of the most important issues for libertarians: Government spending and regulation, the fate of Obamacare, the courts, the War on Drugs and immigration, and foreign policy. I picked these issues because they all have a massive impact on large numbers of people. Ultimately, I think that Romney deserves a slight edge. But there are many uncertainties involved. Because it’s such a close and complicated call, this post will unfortunately be much longer than I would prefer. Even so, I will have to leave consideration of Libertarian Party nominee Gary Johnson for a future post, which I will write when time allows.
Continue reading ‘A Libertarian Perspective on Romney vs. Obama’ »
In addition to Willow, there were two major dogs that didn’t bark during tonight’s presidential debate. First, even though the debate was supposed to focus on domestic policy, neither the moderator nor the candidates ever focused on some of the most important domestic issues on which the president can have a big impact: issues such as judicial nominations (not discussed at all) and regulatory agencies (only mentioned in passing). Instead, they spent a lot more time talking about short term economic performance, which presidents have only very limited leverage over. That is likely because voters who know little about politics and policy tend to focus on the wrong issues because they often don’t understand what a president can actually control and what he (mostly) can’t.
Second, although Romney predictably spent a lot of time attacking Obamacare, he said absolutely nothing about the individual health insurance mandate, which remains hugely unpopular – far more so than any other part of the law. Even when Obama waxed eloquent about the evils of insurance companies, Romney didn’t play the obvious gambit of pointing out that the President is the one who passed a law that forces millions of people to buy insurance company products that they don’t want, after saying in 2008 that “[f]orcing people to buy health insurance [in order to provide them with health care] is like forcing the homeless to buy a house to eliminate homelessness.”
Why did Romney let this opportunity slip by? The answer is obvious. If he had attacked the individual mandate, Obama could have countered by noting that Romney’s own Massachusetts health care plan also includes an individual mandate, and Obamacare was modeled on Romneycare. Even as it stood, Obama was able to point out (correctly) that his health care plan was modeled on Romney’s and designed by some of the same advisers.
Overall, Romney did reasonably well in tonight’s debate. If the CNN commentators I’m watching are to believed, he even outperformed Obama. But by nominating the father of Romneycare, the GOP cost itself an opportunity to attack the most politically vulnerable part of Obamacare. That’s what happens when, as economist Bryan Caplan once put it, the Republicans nominate the John the Baptist of Obamacare to run against the program’s Jesus Christ.
UPDATE: I have made a few minor stylistic revisions to this post.
UPDATE #2: A CNN poll of people who watched the debate shows that 67% thought Romney won, compared to only 25% who picked Obama. My own impression is that the two candidates were pretty even. But I’m obviously not the the average swing voter whom they were trying to appeal to. That said, surveys have repeatedly shown that swing voters (like most of the rest of the public) hate the individual mandate. Other things equal, the GOP would be better off if they had a candidate who was able to attack it.
Gene Healy of the Cato Institute recently wrote a harsh, but I think correct assessment of Dinesh D’Souza’s recent movie 2016, which purports to prove that the origins of Barack Obama’s leftism are to be found in the “anticolonialism” and socialism of his Kenyan father:
“2016″ grew out of conservative provocateur Dinesh D’Souza’s 2010 Forbes article, “How Obama Thinks,” which posited that dreams from the president’s Kenyan absentee father motivate everything Obama Jr. does.
“It may seem incredible,” D’Souza wrote, “to suggest that the anticolonial ideology of Barack Obama Sr. is espoused by his son, the President of the United States.”
True enough: That theory wasn’t remotely credible when D’Souza advanced it in Forbes, and it’s even more ludicrous on the silver screen.....
The whole cinematic mess is the mirror image of Left-wing fascination with Skull and Bones, Haliburton and George W. Bush’s alleged Oedipal complex as explanations for the Iraq War. At least Michael Moore’s crackpot documentaries provide a few impish laughs. In “2016,” all the yuks are unintentional.
I wrote a more detailed critique of D’Souza back when he first proposed his theory in 2010. Later, I compared D’Souza’s interpretation of Obama with that of Princeton Professor Cornel West:
Last year, Dinesh D’Souza made waves by claiming that Barack Obama’s left-wing ideology and policies can be explained by his “anti-colonial” attitudes, traceable to his father’s Kenyan background.... This year, Cornel West claims that Obama’s racial background is the key to explaining why the president isn’t left-wing enough. West believes that it’s because Obama mixed-race background led him to have a “certain fear of free black men,” and to be more comfortable with “upper middle-class white and Jewish men who consider themselves very smart.”
Both West and D’Souza err in assuming that there is something unusual about Obama’s policies that requires explanation based on his personal background. In reality, as I explained in my critique of D’Souza, Obama’s policies are largely what any liberal Democratic president would have done under similar circumstances. Had Hillary Clinton or John Edwards (sans sex scandal) won the 2008 election, they would have done most of the same things. Indeed, Obama’s most important policy initiative, the health care bill, is in large part based on a proposal that Hillary Clinton promoted in the 2008 primaries, at which time Obama harshly criticized it....
[T]his is another case of pundits overestimating the impact of the personal on the political. Most of what Obama has done is readily explicable by his partisan background and the political situation he finds himself in rather than by personal idiosyncracies. To the extent that his personal views are discernible, they seem very similar to those of other liberal intellectuals of his generation, both white and black.
In a weird way, critics like D’Souza and West have much in common with the enthusiastic Obama supporters who in 2008 believed that Obama represented a fundamental break with politics as we know it. Both groups assume that the president is a lot more special than he actually is.
UPDATE: I initially forgot to include a link to my post comparing Cornel West’s interpretation of Obama with D’Souza’s. I have now fixed that mistake above.
New York Times columnist Ross Douthat has an interesting column describing some of President Obama’s evolving positions on executive power. He now engages in many of the same practices that he and numerous other liberal Democrats denounced as unconstitutional in the days of the Bush Administration:
When George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well....
Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.
These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.
The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.
Douthat does not mention what was perhaps Obama’s biggest reversal on executive power. The man who in 2007 wrote that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” last year waged a war against Libya without any congressional authorization. Even Bush never went that far.
Like Douthat, I don’t believe that all of Obama’s reversals were for the worse. In some of these cases, I think the president’s new position is more correct than his old one. That said, it is unfortunate that Obama has adopted such an extraordinarily broad view of executive power, and that Democratic partisans have largely accepted it. In fairness, their unprincipled behavior is little different from that of many Republicans when the GOP controls the White House. But that hardly justifies it.
For those who want to argue that I myself only turned against a broad view of executive power when Obama got into the White House, I refer you to my January 2007 Federalist Society debate on wartime executive power with John Yoo and others, and this post.
UPDATE: I have revised the last paragraph of this post for stylistic reasons.
In a 47-minute podcast from iVoices.org, I provide the history from Operation Wide Receiver in 2006-07, up through the contempt of Congress vote this week.
As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.
Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom, I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.
On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.
Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.
The particular issues in the contempt vote, and therefore in President Obama’s assertion of Executive Privilege involve:
1. Retaliation against the whistleblowers.
2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.
While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.
According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.
So here are my questions for the commenters: Is President’s assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.
UPDATE: I will be discussing today’s developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.
President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree.
Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s authority to forego defending federal statutes he believes to be unconstitutional, the legality of the targeted killing of Osama Bin Laden, the end of the NBA lockout, and that the Obama health care plan’s individual mandate is not a tax. Based on the above, it seems that the biggest areas of overlap between our worldviews are gay rights and sports. But the list is not completely exhaustive, since there are a few other issues where we also agree, but I don’t blog about them because they are too far outside my areas of interest and expertise.
UPDATE: A somewhat overwrought critique of this post takes me to task for supposedly being unaware of numerous largely noncontroversial things that Obama and I agree on, such as that genocide is evil or that Hitler and Stalin were great villains. I’m well aware of these areas of agreement, thank you. But this post was about issues on which Obama and I agree, which means questions that are controversial in modern American politics. The fact that Obama and I agree on many things on which there is an overwhelming national consensus isn’t relevant to that. We also agree that the Earth is round, and that the Sun rises in the East.
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.
It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)
President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.
That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.
Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.
It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.
As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)
Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.
President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States. You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.
The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.
President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.