Monday, April 23, 2012

It isn't the winds fault that the building fell down due to decades of neglect.

An article talking about how our president has become more aggressive using executive powers to pass laws.

http://www.msnbc.msn.com/id/47138446

Image: Barack Obama
Consul Barrackus Obamicus
WASHINGTON — One Saturday last fall, President Obama interrupted a White House strategy meeting to raise an issue not on the agenda. He declared, aides recalled, that the administration needed to more aggressively use executive power to govern in the face of Congressional obstructionism. (Read that the congress that was voted in to curb Obamas’ legislative plans, and for the most part doing a terrible job at it, are frustrating him. Somehow I feel our constitution will not fare well in the next couple of paragraphs).

 “We had been attempting to highlight the inability of Congress to do anything (If only.  The only time things are going well is when it seems that nothing gets done.  Remember the critically important, i.e. manufactured, debt crisis? A beautiful period were congress was too busy scare mongering to pass any more terrible laws.” recalled William M. Daley, who was the White House chief of staff at the time. “The president expressed frustration, saying we have got to scour everything and push the envelope in finding things we can do on our own.” (In plain English, how can we twist or bend the constitution that allows us to rule more and more by decree so we can get what we want passed.)

For Mr. Obama, that meeting was a turning point. As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals (It isn’t hard to do that when you had a super majority, something which rarely ever happens. It is also telling that the article neglects to mention what was worked through, because by and large nothing was done.  The democrats have the dubious honor of having a once in a century occurrence, a filibuster proof majority, and they couldn’t get anything done; thankfully.)  

But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new(doomed to fail) policies — on creating jobs for veterans (good luck. The free market would do a better job), preventing drug shortages (were in the constitution is it the federal government’s responsibility to make sure people who are on pills can get them?), raising fuel economy standards (Didn’t he already do this?), curbing domestic violence (Not to disparage those who suffer from domestic violence but this has been a perennial problem as far as I can remember. Generally when ‘issues’ are perennial problems the problem is manufactured.  The fact is, despite what femnazis would have you believe, there aren’t a whole lot of men, let’s not pretend that this would be a gender neutral issue shall we, going around and beating women) and more.

Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month (Because that will accomplish so much for those that have mortgages that are tens or hundreds of thousands of dollars underwater), for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”

Aides say many more such moves are coming. Not just a short-term shift in governing style and a re-election strategy, Mr. Obama’s increasingly assertive use of executive action could foreshadow pitched battles over the separation of powers in his second term, should he win and Republicans consolidate their power in Congress.

Many conservatives have denounced Mr. Obama’s new approach. (But are secretly want to have a conservative, and I use that term loosely, president who will do the same.) But William G. Howell, a University of Chicago political science professor and author of “Power Without Persuasion: The Politics of Direct Presidential Action,” said Mr. Obama’s use of executive power to advance domestic policies that could not pass Congress was not new historically. Still, he said, because of Mr. Obama’s past as a critic of executive unilateralism, his transformation is remarkable. (This is only news if you took what he was saying at face value; those that have the ability to read between the lines or look at what he pushed for in the past.  Words only have meaning from corresponding action.  If a person with a history of pushing creationism in public schools started talking about the need to keep political agendas out of the class room you wouldn’t take him seriously way.  So why would you take a president, whose previous legislative, however bare, and private correspondence indicated a man who would govern very differently from what he promised, seriously?)

 “What is surprising is that he is coming around to responding to the incentives that are built into the institution of the presidency (No they weren’t. These are all relatively recent phenomena that we take as truth.  The presidency was designed to be weak domestically and strong internationally.  In determining the laws of the nation he would have little power, but in enforcement and defense he would have the power required.),” Mr. Howell said. “Even someone who has studied the Constitution and holds it in high regard (Who in this country says they don’t?  I have never ever heard anyone say anything negative about our constitution.  But I hear people all the time, the president included, advocate policies that are in direct violation of a pretty plainly worded document.) — he, too, is going to exercise these unilateral powers because his long-term legacy and his standing in the polls crucially depend upon action.”

Mr. Obama has issued signing statements claiming a right to bypass a handful of constraints — rejecting as unconstitutional Congress’s attempt to prevent him from having White House “czars” on certain issues, for example(I could be wrong but I cannot think of anything in the constitution that prohibits the congress from doing this. The constitutional never directly stated there were to be cabinet members, nor did it prohibit the president from appoint members to cabinet positions to help him execute his role as chief executive for each. What disturbing is the number of czars Obama has had, which is equal to the number of czars every president from FDR had till now, excluding our previous president who also had predilection for appointing czars.  Obama has 38 according to this chart, more than three times the amount of FDR! Even more absurd is that we have an AIDS czar). But for the most part, Mr. Obama’s increased unilateralism in domestic policy has relied on a different form of executive power than the sort that had led to heated debates during his predecessor’s administration: Mr. Bush’s frequent assertion of a right to override statutes on matters like surveillance and torture.

“Obama’s not saying he has the right to defy a Congressional statute,” said Richard H. Pildes, a New York University law professor. “But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago.” (Because of the Republican wave last election cycle.)

The Obama administration started down this path soon after Republicans took over the House of Representatives last year. (This begs the question.  Was the President ever going to try and work with the Republican majority?) In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. Previously, the administration had urged lawmakers to repeal it, but had defended their right to enact it.

In the following months, the administration increased efforts to curb greenhouse gas emissions through environmental regulations, gave states waivers from federal mandates if they agreed to education overhauls (Because all previous federal government directives for education were stellar success), and refocused deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children. Each step substituted for a faltered legislative proposal.

But those moves were isolated and cut against the administration’s broader political messaging strategy at the time: that Mr. Obama was trying to reach across the aisle to get things done (And so did Bush, and Clinton, and Reagan and so on and so forth.). It was only after the summer, when negotiations over a deficit reduction deal broke down and House Republicans nearly failed to raise the nation’s borrowing limit (i.e. the republicans reneged on their promise to those who elected them. Ensuring that greater economic and fiscal damage will come later rather than deal with it now.), that Mr. Obama fully shifted course.

First, he proposed a jobs package and gave speeches urging lawmakers to “pass this bill” — knowing they would not. A few weeks later, at the policy and campaign strategy meeting in the White House’s Roosevelt Room, the president told aides that highlighting Congressional gridlock was not enough.

“He wanted to continue down the path of being bold with Congress and flexing our muscle a little bit, and showing a contrast to the American people of a Congress that was completely stuck,” said Nancy-Ann DeParle, a deputy chief of staff assigned to lead the effort to come up with ideas.

Ms. DeParle met twice a week with members of the domestic policy council to brainstorm. She met with cabinet secretaries in the fall, and again in February with their chiefs of staff. No one opposed doing more; the challenge was coming up with workable ideas, aides said.

The focus, said Dan Pfeiffer, the White House communications director, was “what we could do on our own to help the economy in areas Congress was failing to act,” so the list was not necessarily the highest priority actions, but instead steps that did not require legislation.

Republican lawmakers watched warily. One of Mr. Obama’s first “We Can’t Wait” announcements was the moving up of plans to ease terms on student loans (As a recent graduate myself I can sympathize. A generation of individuals has been suckered into believing that taking out $ 40,000 for a bachelors' in pottery making was the ticket to financial wellbeing. But ultimately this won’t help. If we really want to address this issue then we should let student loans be discharged through bankruptcy.) . After Republican complaints that the executive branch had no authority to change the timing, it appeared to back off.

The sharpest legal criticism, however, came in January after Mr. Obama bypassed the Senate confirmation process to install four officials using his recess appointment powers, even though House Republicans had been forcing the Senate to hold “pro forma” sessions through its winter break to block such appointments.

Mr. Obama declared the sessions a sham, saying the Senate was really in the midst of a lengthy recess. His appointments are facing a legal challenge, and some liberals and many conservatives have warned that he set a dangerous precedent.

Senator Harry Reid of Nevada, the Senate Democratic leader, who essentially invented the pro forma session tactic late in Mr. Bush’s presidency, has not objected, however. Senate aides said Mr. Reid had told the White House that he would not oppose such appointments based on a memorandum from his counsel, Serena Hoy. She concluded that the longer the tactic went unchallenged, the harder it would be for any president to make recess appointments — a significant shift in the historic balance of power between the branches.

The White House counsel, Kathryn Ruemmler, said the Obama administration’s legal team had begun examining the issue in early 2011 — including an internal Bush administration memo criticizing the notion that such sessions could block a president’s recess powers — and “seriously considered” making some appointments during Congress’s August break. But Mr. Obama decided to move ahead in January 2012, including installing Richard Cordray to head the new consumer financial protection bureau, after Senate Republicans blocked a confirmation vote.

“I refuse to take ‘no’ for an answer,” Mr. Obama declared, beneath a “We Can’t Wait” banner. “When Congress refuses to act and — as a result — hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”

The unilateralist strategy carries political risks. Mr. Obama cannot blame the Republicans when he adopts policies that liberals oppose, like when he overruled the Environmental Protection Agency’s proposal to strengthen antismog rules (Good) or decided not to sign an order banning discrimination by federal contractors based on sexual orientation.

The approach also exposes Mr. Obama to accusations that he is concentrating too much power in the White House. Earlier this year, Senator Charles E. Grassley, Republican of Iowa, delivered a series of floor speeches accusing Mr. Obama of acting “more and more like a king that the Constitution was designed to replace” and imploring colleagues of both parties to push back against his “power grabs.” (Very true Senator, but were you saying the same things about a previous strong executive?)

But Democratic lawmakers have been largely quiet; many of them accuse Republicans of engaging in an unprecedented level of obstructionism and say that Mr. Obama has to do what he can to make the government work. (A few years ago we could have switched the parties)  The pattern adds to a bipartisan history in which lawmakers from presidents’ own parties have tended not to object to invocations of executive power.

For their part, Republicans appear to have largely acquiesced. Mr. Grassley said in an interview that his colleagues were reluctant to block even more bills and nominations in response to Mr. Obama’s “chutzpah,” lest they play into his effort to portray them as making Congress dysfunctional. (The Republicans could also be thinking that being too aggressive at this point in an election cycle could snatch defeat from the jaws of victory.)

“Some of the most conservative people in our caucus would adamantly disagree with what Obama did on recess appointments, but they said it’s not a winner for us,” he said. (Unfortunately he is right)

Mr. Obama’s new approach puts him in the company of his recent predecessors. Mr. Bush, for example, failed to persuade Congress to pass a bill allowing religiously affiliated groups to receive taxpayer grants — and then issued an executive order making the change.

President Bill Clinton increased White House involvement in agency rule making, using regulations and executive orders to show that he was getting things done despite opposition from a Republican Congress on matters like land conservation, gun control, tobacco advertising and treaties. (He was assisted by a White House lawyer, Elena Kagan, who later won tenure at Harvard based on scholarship analyzing such efforts and who is now on the Supreme Court.)

And both the Reagan and George Bush administrations increased their control over executive agencies to advance a deregulatory agenda, despite opposition from Democratic lawmakers, while also developing legal theories and tactics to increase executive power, like issuing signing statements more frequently.

The bipartisan history of executive aggrandizement in recent decades complicates Republican criticism. In February, two conservative advocacy groups — Crossroads GPS and the American Action Network — sponsored a symposium to discuss what they called “the unprecedented expansion of executive power during the past three years.” It reached an awkward moment during a talk with a former attorney general, Edwin Meese III, and a former White House counsel, C. Boyden Gray.

“It’s kind of ironic you have Boyden and me here because when we were with the executive branch, we were probably the principal proponents of executive power under President Reagan and then President George H. W. Bush,” Mr. Meese said, quickly adding that the presidential prerogatives they sought to protect, unlike Mr. Obama’s, were valid. (Glad to know some of our betters have a sense of irony)

But Jack L. Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel during the George W. Bush administration, said the Obama administration’s pattern reflects how presidents usually behave, especially during divided government, and appears aggressive only in comparison to Mr. Obama’s having been “really skittish for the first two years” about executive power.

“This is what presidents do,” Mr. Goldsmith said. “It’s taken Obama two years to get there, but this has happened throughout history. You can’t be in that office with all its enormous responsibilities — when things don’t happen, you get blamed for it — and not exercise all the powers that have accrued to it over time.”

(Fair enough, it isn’t as if Obama isn’t doing anything that previous president hadn’t done, but therein lies the problem.  Neither Obama, Bush, nor any president wants to do harm to this country, or even the constitution.  But we have allowed dangerous ideas; like that the constitution is a living document or is open to ‘interpretation’ as well as the need to have a very strong president, proliferate and infect our system.  A little over a hundred years ago we had a democratic president resisting calls to try and enact government involvement into people’s lives and into the economy. Today we are lucky if we can get a republican presidential candidate, excepting Ron Paul of course, who can even accurately describe how a free market or society is supposed to work.  And that is the responsibility that falls upon us citizens.  We must undo a centuries worth of damage.  We need to reroute, reinforce, and relay the bricks of freedom that make the foundation for our city upon the hill.)

Always and humbly yours

Cogitans Iuvenis

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Seattle resident whose real name is Kevin Daniels. This blog covers the following topics, libertarian philosophy, realpolitik, western culture, history and the pursuit of truth from the perspective of a libertarian traditionalist.