John Yoo on the Unitary Executive

A recent speech by John Yoo to the Federalist Society provides some interesting insight to the current Administration's perspective on presidential power. A long-time proponent of what is known as the theory of the Unitary Executive, John Yoo uses the cover of a valid theory of constitutional (Article II) interpretation to push his extremist notions of presidential power.

I say the Unitary Executive is a valid option of constitutional interpretation because it is directly gleaned from Article II of the Constitution. To quote directly from the Wikipedia article:

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

While this might be a valid interpretation of the words of our Constitution, our tradition has evolved away from a strict implementation of the unitary executive theory. While the president retains vast power to direct the executive ship, there are areas of day-to-day governmental operation that we seek to rest above or beyond the realm of politics. For example, the Federal Reserve is not directly answerable to the President, although it is technically part of the Executive Branch. Same goes for independent agencies such as NASA or the Federal Election Commission. These agencies work in areas that Americans generally agree should remain free of the influence of presidential priorities and partisan wrangling. For the FDA, science is science no matter who is president.

Nevertheless, John Yoo thinks that everyone in the executive branch should be in lock-step with the President: "Every subordinate should agree with [the president's] views so there is a unified approach to the law..." He goes on to elaborate why the unitary executive is necessary:

“The president reacts to unforeseen events and emergencies that Congress can’t anticipate … like Sept. 11, that are outside the anticipation of written laws,” said Yoo. “The framers wanted a presidency that’s unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power. It was not carefully defined, deliberately.”

Regardless of the defensibility of the Unitary Executive, Yoo's claims springboard into waters way beyond the realm of the theory. While Alexander Hamilton writes repeatedly in The Federalist Papers that the country needs an "energetic executive" or an "energetic government," I am not aware of any reference from the Founders that the Government should operate in secret. And they most certainly were not ambiguous on the limits of the presidency's powers. Checks and balances along with separation of powers are central to the framework that the Constitution erects. The president's realm is to execute the law, not make it or reinterpret it or ignore it. And the president (nor the Administration) certainly may not break the law, a la FISA-style.

When did Welfare become Welfair?

In considering Kelly's post on Bread and Circuses and the current consternation over health care reform tied to the gathering campaign for the 2008 presidential election, I have to wonder when our society's concept of welfare - the humane and laudable goal of providing a safety net for people when they fall, to give them a chance to get back on their feet - became welfair - the pervasive belief that everyone is entitled to exactly the same level of service, no matter one's net worth or available wealth.

First, I must say that I am sympathetic and mindful of the need to provide some level of basic service for those without medical insurance. Regardless of one's current state of employment, income or health, everyone in society is entitled to some basic level of care to keep them healthy and sane. I would even go so far as to concede that the government might be able to find an effective means of backing such a "stop gap" insurance plan, though such a program should be approached with caution. The last thing we would want is the Government to mess with what currently works in the American health care system. We just need to find ways to plug the holes.

Beyond my belief that the government might have a role to play in providing a base level of health care coverage, there is nothing in the Constitution that would say the federal government can or should play this role. As Kelly asks, "The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens." Without the citizens of the more wealthy states subsidizing the citizens of poorer states through the bureaucratic nightmare of the federal government, a federal scheme is not possible. Even if this limitation could be overcome, it would not be desirable, given the proven inefficiencies of the federal bureaucracy. Better to keep any such governmental role at the State level.

Nevertheless, many on the Left look to Canada and Great Britain's socialized health care systems as some sort of panacea that Congress should adopt for the entire nation. They think it somehow "unfair" that people have different access to health care given different levels of wealth. We generally don't like the fact that the rich can afford more access than the average middle-class citizen restricted by the insurance companies or the uninsured shut out cut off from all but emergency care.

Somewhere along the way, though, our society's definition of "equality" morphed into something different that what the Founders understood. For the Framers, equality equated to what was right. Witness the words of the Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Thomas Jefferson talks about equality being the ability of men (and women, by extension of our egalitarian ideals throughout the nineteenth century) to live their lives unoppressed by Government and free to pursue their passions and dreams as they see fit. But present-day concepts of equality has more to do with what people perceive to be fair.

We don't think it's fair that people with more money have access to elective surgeries that we might like for ourselves, but who, I ask, would they propose should define what is "fair" health coverage? If it is impossible for everyone to receive reconstructive breast surgery after a mastectomy, should no one be allowed to receive it? If Zoloft is too expensive to be given to everyone, should it simply be banned so that no one can be freed from their depression?

The things that work in America's health care system are driven by the free market. As we debate ways to bring some basic level of health care to everyone (a worthy goal for which we should work to make happen), let's not adopt the concept that equality can only mean sameness of level for everyone.

Bread and Circuses

Last I checked, good roads were not in the Constitution under the “Things government is supposed to do” category.

Funny thing too – education and health care are missing as well.

It might be something that only the government can provide on such a large scale. It does require a certain level of prosperity which we tend to forget. In times of war or major economic depression, from where will the money come?

Have we considered who gets to choose what procedures will be covered? Why should people in other states have a say on whether Texas covers RU-486? The only way to get around this issue is create a state-based system. The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens. It also follows that California has many more people to cover which would draw down their average dollar spent per person much closer to North Dakota’s. If you want to find out about Canada’s system, ask about cosmetic procedures (costly but elective) or cancer treatments (life-prolonging but extremely costly).

If North Dakota wants to share in California’s tax revenue, they have to accept the strings that California places on the money. Most of the time people are too focused on the $-signs and ignore the strings until too late. It also trains the citizenry that when they get in trouble, they can always run to Uncle Moneybags. After you’re resigned to the first string, the following strings-for-money trade-off become less onerous until you find yourself as a marionette, dancing for your lunch money and resenting the puppeteer all the while trying to get another money ‘fix’.

Who will keep us safe from the people that claim to be keeping us safe?

Craig sent me this link about the Jose Pedilla case. He compared Bush's grab for power with Lincoln with the exception that Lincoln's America really *was* falling apart around him.

What’s even more disturbing is that Bush, Chaney, Rumsfeld, et. al. are all unapologetic, even when it turns out that they were wrong. There is no remorse or regret over these inhumane actions inflicted on a U.S. citizen at the behest of the Bush administration. Not to mention that the White House doesn’t lack defenders or apologists. There are people in the country who have placed their loyalty in a man to such a degree as to be indistinguishable from blind faith. The logic starts with “I trust Bush, he’s a good man” and “Bush is trying to defend the country” to become “Bush wouldn’t do anything that would hurt the country” which leads to “Whatever Bush wants to do must be good for the country”.

They are like buyers of a car-turned-lemon; unwilling to accept that they could make a bad decision so they turn to irrational arguments like conspiracy theories or demonizing the critics. Anything to keep from having to confront reality. The word for their disease is cognitive dissonance. They are vassals who shout "Long live the King" regardless of the atrocities committed in his name. They have become like cult followers; willing to drink the kool-aid because their trusted leader said it would take them to the Promised Land.

As a U.S. citizen, it bothers me to think that I could be held incommunicado in a military brig for years on the word of the President alone. The Constitution was meant to protect us from abuses of power just like this.

The greatest deliberative body?

The Senate was established by the Founding Fathers as the chamber of Congress that would carefully deliberate on the business of the Republic, providing balance to the more brash "people's" House. In that vein, the Senate has prided itself on being "the greatest deliberative body in the world." The filibuster and, beginning in the twentieth century, the cloture vote have long been used in the Senate to ensure legislation was not ram-rodded through, to ensure everyone's voice was heard and considered.

Over the course of the twentieth century, however, these tools have been "reshaped" in the name of efficiency, civility, and streamlining debate that they remain in name only. Once upon a time, a senator or group of senators would have really had to talk continuously to stall a bill. The committed minority could prevent closure of debate so long as they kept talking, but once they stopped (whether they stopped due to compromise with the majority, or by sheer exhaustion), the business of the Senate could resume. Now all that is needed is the threat of a filibuster for a small minority to stall a bill they don't like. The so-called "gentleman's filibuster" seeks to retain the goal of the old-time filibuster while removing all the pain and unpleasantness. After all, why should anyone be inconvenienced by all-night sessions or risk their health by talking themselves to exhaustion?

In order to prevent the minority from completely abusing the filibuster, the Senate in the 1960's lowered the bar on the number of senators needed to cut off debate to three-fifths (sixty of one-hundred). But even this is too high of a requirement for ordinary business. The filibuster and cloture vote are now used by minority parties (rarely does the majority have 60 or more Senate seats) to kill legislation it doesn't like. The intent was to slow legislation, not allow the minority to thwart the will of the majority.

The majority party colludes with the minority by withdrawing legislation that fails the cloture vote. This is right in line with, and indeed governed by, our "fast-food" culture - if we can't get something right now, we don't think it's worth working towards. Senators worry that the public will see them as wasting time if they are camped on one issue for weeks on end, but sometimes this is exactly what is called for. For compromise to work, it needs time, discomfort and close proximity to form and solidify. If a committed minority wants to stall legislation, they should have every right in the Senate to do so for as long as they can. But this means they are actively working - by talking through continuous, all-day, all-night, and all-weekend sessions - until they are no longer willing or able to do so. Then the Senate holds an up-or-down vote on the question at hand.

I was sympathetic to the Republicans' frustration over the Democrats' use of filibusters to stall the consideration of President Bush's judicial nominees back in 2005. But if the nuclear option was good then, why not now that the Democrats are the majority? But cloture votes and nuclear options would not be necessary if the Senate would simply make a filibuster a filibuster. If debate was allowed to take as long as it needed to play itself out, the Senate would once again be the world's greatest deliberative body.

What Price Loyalty?

Politics has always been a game. The majority of changes have been the players and the stakes. For over two centuries there have been two teams of lasting consequence. In a place where power and money are readily available and in large quantities, it is almost inevitable that there would come a time when somebody breaks the rules so blatantly that they deserve to have their head served up on a platter. What is amazing is that the guilty party still will have defenders regardless of the crime. The common cry is "It's a political witch-hunt!". While that may be true, let's examine those cases where the person is actually deserving of getting kicked out of town.

The most recent example is Attorney General Gonzales. His claim is that visiting John Ashcroft at his bedside in the hospital was not for the reason the then Acting AG Comey claim it was. Regardless of the actual reason, Gonzales is on shaky ground to claim any reason to visit Ashcroft, since Ashcroft no longer held the authority of the office of AG. Any action or decision taken based upon Ashcroft's approval would have been null and void as a matter of law, otherwise why bother with the formality of signing over the AG's powers to Comey?

Where am I going with this? What amazes me the most is when loyalty trumps common sense. With the innumerable blunders made by AG Gonzales, I start to ask why more Republicans have not withdrawn their support of him. I understand the desire to be loyal to one of their own party, but loyalty taken to that extreme can easily become blinders that keep the wearer from seeing the sunshine of the truth.

A politician who is willing to make excuses for the ineptitude of others -- Gonzales just being a current example -- has put politics before doing what is right.

What each political party could use is someone who is considered one of their own but who can still intercede in matters before members become so galvanized in their partisan trenches that they cease to see the damage they do to the party as a whole.

Professional sports leagues have commissioners that are hired by the owners to look out for the integrity of the game. In doing so, he can confront bad behavior, however legal it may be, with an eye for the broader prospective of the entire organization. He is entrusted make the unpleasant decisions that he can make because he doesn't represent an individual player or club. It is the highest expression of teamwork when teams themselves submit to a higher authority in the interest of the game itself.


When will the Republicans and Democrats realize that they need a Commissioner?

The problem with Roe and the Theory of the Governance Imperative

With Roe, the courts acted before the abortion issue was ripe. The Supreme Court felt the issue was in Stage 4 long enough among enough people that they felt it was time to act to release the public pressure. A counter example might be the Child Online Protection Act (COPA). When they declared the law unconstitutional, the courts (rightly or wrongly) were doing what they are constitutionally mandated to do - invalidating laws that are unfair applications of power. But Congress reacted as if the issue of indecent content was in Stage 4 when the issue had not achieved a critical mass among the population. Because of this, it appeared that Congress was embroiled in partisan politics.

Another thing can be said about this. Almost all highly-charged partisan battlefields might be around issues that are in this same state, where one of the branches is out of sync with the people. If the branch lags the people as the Supreme Court did with segregation, you get the Civil Rights Movement. If the branch is ahead of the people, you get Roe (in the case of the Supreme Court) or COPA (in the case of Congress).

True judicial activism is not to be found in decisions like Lawrence or the flag burning decisions. Judicial activism is to be found in decisions like Plessy and Roe where the courts begin bleeding into the domain of the legislature and created rights that were not mentioned in the Constitution. Contrast this with the Terri Shiavo case. Although the judicial activism term was thrown around quite readily, the courts were very measured in their response. They never created law out of thin air, while Congress tried to become the arbiter of what the law meant under the guise of changing the law. What is surprising is that no one accused Congress of violating the Constitutional ban on ex post facto laws. This is congressional activism.

So this all leaves us asking a few questions:

• Has this governance imperative theory been discussed before? If so, has it been limited to the intelligentsia in the Ivory Tower?


• Are we really the first ones who have uncovered the relationships here? Are we the first to ask the question "What's the underlying cause behind the charge of judicial activism?" Either the people don't understand the role of the courts, or the courts really are out of sync.

Live and let Die

Craig and I have had many discussions about whether the death penalty is appropriate and how it should be implemented.

Pro-Death penalty advocates claim that having capital punishment serves as a deterrent to crime.
Pro-Life advocates claim that all life is sacred and that we don't have the right to end anyone's life no matter how cold-blooded they might be.

A recurring argument is that the justice system allows too many truly innocent people be executed. This is one reason some State Governors have suspended capital punishment in their States pending further review.

Add to all this the times the Supreme Court of the United States (SCOTUS) has weighed in to determined whether capital punishment violates the "cruel or unusual punishment" clause in the Constitution. What is a pragmatic citizen to do?

How does the State choose between the principles of Justice and the Sanctity of Life? There will never be peace while the majority imposes the primacy of one over the other. I could write an in-depth treatise on this subject, and hopefully one day I will do just that, but for now, what action remains?

I suggest an Amendment to the U.S. Constitution that reflects the following intent:

States shall not impose Capital punishment without the testimony of two credible individuals who identify the accused as responsible for the death of another person, including by bearing false witness.

The idea is by having this in the Constitution, States have more leeway around 'cruel and unusual punishment' on one hand. On the other hand, by setting the legal bar very high, requiring two witnesses to the crime (mirroring the current constitutional bar for finding a person guilty of treason), we take away the vast majority of cases where the potential to execute the innocent exists.

Thus, our society will be saying that we believe in Capital punishment as well has 'innocent until proven guilty' and define the interaction explicitly. If two people conspire to frame someone for a capital crime there is only so much the State can do to protect society from those evil few who would bend the State's power do their personal bidding. When these false-witnesses are revealed, the State still will have the possibility of extracting Justice for the innocent. By explicitly giving the States the power to impose Capital punishment, we allow those States that so desire the option to use Capital punishment while allowing the People of any State the power to renounce it as they will.

This is just the sort of approach that seems to be right at home in the design of our framework for governance.

Proposed Amendment #4: Congressional Power Amendment

The Text:

Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.

The Problem:
Our federal government was designed by the Founding Fathers to be one of limited, delegated powers, operating in spheres of life that rarely effected the day-to-day lives of the American citizenry. The federal government was there to coordinate foreign affairs, defend the Union from foreign attack and insurrection, and regulate interstate commerce. This list is a broad-brushed summary of the areas of responsibility given to the Congress in Article I, Section 8, but it is duly representative to be considered complete.

James Madison lays out this vision in no. 38 of The Federalist Papers:

But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national Government involves in it, not only an authority over the individual citizens; but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a people consolidated into one nation, this supremacy is compleatly vested in the national Legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal Legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controuled, directed or abolished by it at pleasure. In the latter the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere. In this relation then the proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

And again, in The Federalist no. 45, James Madison writes:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State Governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State Governments will here enjoy another advantage over the Federal Government. The more adequate indeed the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favour their ascendency over the governments of the particular States.

Due to the contingencies of history and the convenience of the moment brought on by various national crises or challenges, the powers of the national government were incrementally expanded until they encompassed every sphere of everyday life. Even the regulation of water flow in our houses is not beyond the reach of the federal government. And all without one word being added to the U.S. Constitution!

The reality of what the federal government is versus what it is delegated by the federal Constitution are sorely out of line, and while most do not see it as any big deal, it will one day come back to haunt us if we do not bring the two back in line. Since reducing the federal government back down to the size envisioned by the Constitution, we are proposing an amendment to bring the Constitution in line with the realities of the day. It must be noted that while we would not have, all things being equal, advocated the current proposed amendment, but all things are not equal, the nation is where it is, and it is our view that less damage will be done in the long run if we amend the Constitution to reflect this fact.

The Explanation
Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.
Rather than continually trying to amend the Constitution to keep up with the ever-changing and evolving needs of the country through lists of explicitly-delegated congressional powers, this section would recognize what Congress has become: the sovereign law-making body is all spheres of American political and economic life. The wording of this proposed amendment is taken from wording originally posed by the Constitution's Framers themselves.

There is still a threshhold here that would be intended to protect the competent jurisdictions of the States, but the standard is less rigid that the current one set forth by Article I, Section 8. The realm of the Congress would still be problems or questions of an interstate and/or national scope. When combined with the Tenth Amendment and the proposed amendment to Repeal the Seventeenth Amendment, this would allow the flexibility and practicality of politics to determine the appropriate line between federal and state jurisdiction for whatever specific questions face the country at any given point of time.

This section would also remove any uncertainty regarding the proper scope of congressional power and legitimize the expanded role Congress has taken over the past 100 years. The original list of delegated powers has been stretched beyond recognition, so there is no reason to suspect that a newly updated list would fare any better in restricting congressional power. What is needed is built-in checks and balances, pitting the jealousies of each of the branches and the States between each other.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.
Since Section 1 would potentially open the doors of congressional power to any and every kind of problem, procedural checks will be important to help States or groups provide a counter-weight to Congress. While the Framers limited the powers of Congress to those listed in Article 1, Section 8 as one means to check congressional overreach, this list has proven to be nothing more than a "parchment barrier" (to use Madison's turn of phrase) as the necessary and proper clause of the Constitution has been used to stretch the originally-delegated congressional powers beyond any recognized shape.

This section would provide one such procedural check to the misapplication of congressional power by prohibiting the spending of money in ways that do not benefit the nation (or a broader group of States) as a whole. This would also have the added benefit of killing much of the present-day "pork barrel" spending that plagues federal budgets. If this provision were violated by the Congress, the States or interest groups would be able to sue the Federal Government is court in order to prevent the spending of the monies that were budgeted in violation of this section.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
Section 3 is an adaptation from similar clauses in state constitutions that regulates how the Congress considers bills, adding another procedural check to protect against an enthusiastic Congress. Too many laws are passed that cover a wide-range of subjects, many having nothing to do with the main purpose of the bill. Every bill that is considered should relate to one and only one topic, and the topic that is considered by the bill should be easily understood and communicated.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.
This section carries forward the spirit of Section 3, regulating the revision and amendment of existing laws by Congress. The goal, again, is to bring clarity to what it is the Congress is considering and passing.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.
While this might seem an obvious requirement and has been largely adhered until the recent past (for example, Congress and the Roosevelt Administration went to great pains to lay out the constitutional grounds for the Social Security Act), this would formalize the practice and ensure, at a minimum, that Congress at least gives a passing thought to the Constitution when considering legislation.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.
Section 6 is in some respects a rider to the amendment, but one we think is necessary to restore confidence in Congress. Currently, the onus is on the House and Senate to vote to remove one of their members convicted of a felony. This section will make mandatory the removal of a member of the House or Senate that has been convicted of a felony.

In addition, too many representatives and senators have wielded too much power while a cloud of suspicion hangs over them. While we wish to respect the American principle of "innocent until proven guilty," the proceedings of Congress must be preserved from the stain on credibility that even an indictment can bring. We recognize that this provision could easily be abused by a rogue district attorney in the senator's or representative's home state, so we would be open to tailoring this section to include protections against such possibilities (e.g., restricting the area covered by this provision to the home district, in the case of a representative).

False alarm!

I didn't think Kelly was being very fair in his analysis in his post Where there is smoke, there is fire. The following is the thread of our discussion about the post.

Craig: Geeze - you really stepped on a landmine with that post
Craig: Since when did you drift over to such a liberal position on the illegal immigration debate?
Kelly: You just don't like that I dropped Ms. Coulter's name...
Craig: Well, actually, I don't care much about her - but [your post] is pretty politically charged
Kelly: I'm not so much taking a position as expressing observations
Kelly: What's wrong with asking why we don't raise the limits?
Kelly: What's wrong with asking why we're letting the misuse of 'Amnesty' slide?
Kelly: What's wrong with pointing out that deporting millions of workers would be disastrous to the economy?
Kelly: How's that for turning the debate around?
Craig: What's wrong with asking why we don't raise the limits? Good question - I'll give you this one.
Craig: What's wrong with asking why we're letting the misuse of 'Amnesty' slide?
Craig: b/c it's not a misuse
Craig: What's wrong with pointing out that deporting millions of workers would be disastrous to the economy?
Craig: strawman
Kelly: read the Wiki page on that [i.e., Amnesty] word
Craig: I did
Kelly: I disagree about strawman
Craig: One at a time:
Kelly: but I will grant you that I'm thinking of it theoretically
Kelly: go ahead
Craig: Amnesty: what you say is true, but you can't stop there. Changing of [the] law does not rule out that it's amnesty either.
Craig: By the fact that people are given a pardon of their past crimes by the government is what makes it amnesty - in this case, to become citizens in a way that rewards their illegal acts of coming and staying here.
Craig: The change in the law is just the way that pardon is granted
Kelly: I take issue with the characterization that changing the law to allow citizenship is tantamount to a reward.
Kelly: that is false logic
Craig: Well, you can take issue all you want, it doesn't change the fact that it's true
Kelly: Think of it this way, I own a small hotel and need unskilled workers for maintenance and/or maid service. I'd like to hire people who are legal but when peak travel season hits, I'll hire whoever wants to work. If I can't fill those jobs, because of roadblocks from new legislation or tighter enforcement, I have to shutter rooms and possibly go out of business. Think of a small grower who needs cheap labor to harvest crops. What are his options? Hope Americans are willing to work for next to nothing doing manual labor? Maybe they can get workers but at a higher price. There are enough sectors of the economy that use this category of labor that it would cause a nation-wide impact. Prices would rise and inflation would go with it which means higher interest rates. Economic growth would slow to a crawl while inflation would balloon. That sounds too close to 'stagflation' for comfort.
Kelly: Now, on the "reward" logic, let me ask this. If you're speeding down the highway and the police pull you over, you expect to get a ticket and rightfully so. When the officer decides to give you a warning, is he rewarding you for speeding?
Craig: We've been through this before - the presence of the illegal underground workforce depresses wages to levels that Americans cannot afford to work at those wages
Craig: Assuming Americans won't do that work is elitist at best
Kelly: I'm not saying that Americans won't do that work
Craig: Of course prices would rise. But the illegals wouldn't be treated like slave labor either.
Craig: Where is the humanity is the status quo??
Craig: <<>>
Craig: When they let all the speeders go, that is amnesty.
Kelly: but I just realized a logical fallacy in that argument
Craig: What argument?
Kelly: We always talk about how low unemployment is right now, like 6%.
Kelly: But there is an assumption that the unemployed could work at any of the jobs available
Craig: No - reset and reorient the market to pay proper wages that aren't artificially depressed by illegal workers who are outside of the system.
Kelly: but there are industries where working out in the fields between positions would be tantamount to professional suicide
Kelly: but raising wages will cause inflation
Craig: So?
Kelly: unfortunate but true
Craig: Prices are artificially low
Kelly: I'm just saying that it is appropriate to consider realistic economic outcomes in the debate on immigration
Craig: I think people are. At least the conservatives are.
Craig: Inflation is a small price to pay to treat people humanely
Kelly: not the people who want to kick 12 million workers out of the country
Craig: and make sure they are protected
Craig: and not taken advantage of
Kelly: so now you're a democrat?
Craig: No, I'm a Christian
Craig: Nobody thinks this [i.e., deporting 12 million people out of the country] is a realistic option
Kelly: Every time I hear "But your rewarding them for their illegal act"
Craig: But they can be encouraged to go back home if ICE would crack down on Employers illegally hiring
Kelly: I can't help but think that they are advocating the undocumented workers have to leave the country before they can return and work
Craig: That is the principle
Craig: And that is not a bad thing
Kelly: So, what if they stay even when no one will hire them?
Kelly: and their family starves?
Kelly: Are we morally free of guilt because "They should have known they needed to go back home"
Craig: They would go back home - the same thing that drove them here would drive them back home.
Craig: We'd have nothing to do with the guilt or innocence - it's just the way humans are motivated.
Craig: People go where the opportunity is.
Kelly: That position advocates shrinking the economy on the matter of principle
Craig: So did abolishing slavery.
Kelly: the principle of "We can't reward them for wanting to come here and work for a better life"
Kelly: There is much support for the idea that slavery itself being an impediment to the economy
Craig: There is nothing wrong with people wanting to come here and work for a better life -
Craig: but they must do so within the legal framework we have established.
Kelly: So, why can't we raise the cap?
Craig: I have no problems with raising the caps
Craig: That would be a great thing to do
Kelly: Why isn't that an option I've heard in the debates?
Kelly: It's also the simplest solution
Craig: B/c everyone thinks "comprehensive reform" is the only option,
Kelly: Don't change any of the rules, just change the number allowed per year
Craig: and businesses don't want the illegals to come out of the underground b/c they would be forced to pay more.
Craig: That would be just fine with me
Kelly: It's "comprehensive reform" because do-gooders think they can design a better way to hand-pick new citizens
Kelly: that whole point system reminds me of the mess we have with our tax-code
Craig: Our current laws more than serve us, if they would be respected and observed
Craig: We don't need new ones
Craig: I was ecstatic when the immigration "reform" bill was killed in the Senate.
Kelly: I was too.
Kelly: So, back to my question, why has no one been more vocal about a simpler solution?
Kelly: The whole "close the border" rallying cry didn't sit well with me
Craig: As long as there is an underground workforce, Congress won't raise quotas
Kelly: I'm all for the process of law
Kelly: but I think there are too many people who never question the fairness or justice of laws
Kelly: Black/White thinking can be scary in these situations
Kelly: Throw out the baby with the bath water...
Craig: Yes, it can
Kelly: Cut off your nose to spite your face...
Craig: But there is nothing unjust about current immigration law, except that it is not enforced
Kelly: Those cliches sound like they are describing people who cling to black/white logic
Kelly: I'm actually fine with the current law and would support higher caps
Craig: I am too
Craig: and would as well
Kelly: I'm not sure what that does for the 12mil already here though
Kelly: Here is another fictional scenario:
Craig: They would go back home once the current laws are enforced through crackdowns on the Employers and the erection of an Employer Verification System
Craig: that is mandated by the 1986 law
Kelly: You drive up to the entrance to a toll-road that is 120miles long
Kelly: If you drive at the posted limit of 60 mph, you should reach the exit in 2 hours
Kelly: Now, you're in a hurry and have a fast car so you drive 120 mph and arrive in 1 hour
Kelly: If you were caught, you would be ticketed for the serious offense of speeding and you'd deserve whatever punishment the judge would throw at you. (note: tongue in cheek)
Craig: yes
Kelly: In your relief at getting their on time and not getting caught...
Kelly: You turn a corner, forgetting to use your signal, and get pulled over by the police
Kelly: When the officer approaches, he sees the toll receipt on your dash and can tell that you took 1 hour to drive 120 miles
Kelly: Here is the question:
Kelly: Can he ticket you because he knows you broke the law even though he didn't see you do it?
Kelly: Is your mere presence outside the tollway enough evidence to prove your guilt?
Craig: Is this a "What does Craig think it should be" question or "What does the current law say" question?
Kelly: Are you in danger for the rest of your life (statute-of-limitation be damned *sarcasm again*)?
Craig: Just as a preemptive - I know the parallel you're trying to construct - I don't think the analogy holds.
Kelly: Or are you in danger just for the next hour, because if you took 2 hours, you wouldn't have committed any heinous speeding.
Kelly: I want both answers. What does Craig think and what does the current law say.
Craig: You'd do better to draw a hypothetical picture to a thief breaking into a house
Kelly: I'm not interested in "But the law says this and that's all there is to say"
Craig: But I'll answer your questions, for fun.
Kelly: humor me on this one then I'll be interested to hear the house-breaking thief scenario
Craig: OK.... I don't know what the current law says.
Craig: So that leaves us with: What does Craig think?
Craig: I think the cop shouldn't ticket you unless he sees you committing the act
Craig: You're not breaking the law once he sees you
Craig: of speeding that is
Kelly: you mean unless he sees you?
Craig: No. I mean when he sees you, you're not speeding so he shouldn't be able to ticket you for that
Kelly: ah
Craig: That fits with the way I understand the law works, but I could be wrong on that.
Craig: The fact that he doesn't catch you doesn't mean you didn't break the law.
Kelly: I guess I'm in favor of a policy towards immigrants somewhat like the policy towards Cuban refugees.
Craig: what? send them back, like Elian Gonzalez?
Kelly: If you make it here without getting caught, you're fine. You're undocumented which *should* mean you can't get a job.
Kelly: If you get caught in the act, you get sent back
Craig: But the fact that such a soul is here means they are in the act of breaking the law as long as they are here
Craig: which is why your analogy doesn't hold.
Kelly: While I do believe that is possible to construct a law that does that, I no not support such a law.
Craig: a law that does what?
Kelly: I'm also not sure that that is what the current law says.
Craig: you lost me, sorry
Kelly: that your undocumented presence here is enough to prove your guilt
Craig: That is what the current law says
Craig: That is why ICE can detain someone who can't prove their legal residence here
Craig: and haul them before an Immigration judge
Kelly: What if my twin brother loses his birth certificate in a fire at the hospital and county courthouse that store it
Kelly: Now he can't prove he was born here
Kelly: The State can kick him our because he's undocumented
Craig: The State has his birth certificate on file.
Kelly: That's the copy that was destroyed
Craig: It's computerized
Kelly: a fire at the courthouse
Kelly: They have been lost before.
Kelly: My point is that the situation you describe with ICE sounds too much like 'guilty until proven innocent' for my taste
Craig: Of course it does.
Kelly: If the courthouse that stores birth certiticates burn down, then what?
Craig: They aren't stored at courthouses
Kelly: For the sake of argument, the hospital where you were born burns down too
Kelly: Let's say that they were
Craig: They are stored on disk farms that are backed up and archived
Kelly: The point is that since things like that can happen, it is not a good idea to say "Well, you prove that you should be here"
Kelly: and hold you in detention until you could
Craig: I think the 14th Amendment favors your view.
Kelly: There was a flight attendant that was arrested on charges that she committed a crime
Craig: If you are here, you are an American, you are one of us.
Kelly: the problem was she was in the air with 200 witnesses who could say otherwise
Craig: 1. she'd get a lawyer
Kelly: because the criminal stole her name, the State felt justified in arresting the Ms. "Smith" in their records
Craig: 2. the State would know if she is a citizen
Craig: 3. she'd go before a judge on habeas corpus grounds
Kelly: Even with a lawyer it took her weeks
Kelly: she did go before a judge
Kelly: the feds said, we have the right person
Kelly: It was a case of mistaken ID because the criminal stole it
Craig: 4. she should sue the State when she gets out for wrongful imprisonment.
Kelly: the innocent can't say "I'm not Ms. Smith" because she is.
Craig: But she can say I'm not the Ms. Smith you're looking for
Craig: A person's ID is established more than by just a name
Kelly: But the Feds never do anything wrong, it's wrong to accuse them of it or to insinuate that the good federal employees never make mistakes
Kelly: *sarcasm again*
Craig: You Statist!
Kelly: hah!
Kelly: I'm glad to hear about the 14th
Kelly: but Bush has done such a good job making Terrorists such a bogey man that we should ignore our rights
Craig: says who?
Kelly: They create an environment where it becomes difficult to question their actions
Kelly: Think Rumsfeld and his 'voting for a Democrat supports Terrorists'
Craig: So it's up to the People and the courts to push back on that
Kelly: which is why I'm hoping Congress grows a back-bone on the illegal wiretap subpoenas
Craig: Me too
Kelly: From one point of view, the Executive branch is 'The State' while the Legislative is 'The People'
Craig: Interesting analysis.
Craig: And what are the courts?
Craig: God?
Kelly: with the Judicial being a neutral third party
Kelly: that depends on whether you're asking DeLay...
Kelly: So, I know it galls some people that there are illegal immigrants in the country
Kelly: but is it not possible to find forgiveness in our hearts?
Kelly: and welcome them to the most wonderful country on Earth (note: no sarcasm)
Craig: "The hiils are aliive with the sound of muuuusic"
Craig: la la la la
Kelly: While it may be true that their presence has driven down wages
Kelly: It can be said that things would not instantly get better if they all went home
Kelly: Since they are already here, let's share the bounty of opportunity
Craig: Oh, I am certain things would become very hard for a time.
Kelly: We have more than enough to go around
Craig: Tell Parkland that
Kelly: which is proven by the fact that their presence has not make unemployment spike like so many other countries with large immigrant populations
Kelly: Parkland would have that problem regardless. Maybe to a lesser degree
Craig: I doubt it
Kelly: We'll always have resource allocation issues
Craig: At least it wouldn't be exacerbated
Kelly: So, unemployment is low, inflation is low, interest rates are low.
Craig: wages are depressed
Craig: there is an underground workforce
Kelly: Kicking out 12 Million people wouldn't make our 6% unemployment go down significantly
Craig: Yes
Kelly: but I'd bet that inflation and interest rates would skyrocket
Craig: Yes, I am sure you're right
Kelly: So, we like being the melting pot of the world
Kelly: but we only want to share with a small number of immigrants a year
Kelly: and we're willing to put our economic health at risk because we believe that the undocumented don't deserve the opportunity because they 'cheated'?
Craig: You make that sound like it's evil.
Craig: We accept the number of immigrants Congress says. The others should wait their turn
Kelly: Hence the 'cut off your nose to spite your face' comment
Craig: Just because they cheated to get here doesn't make them saints, or obligate the rest of us
Kelly: that sounds good in theory but now let's talk about reality
Kelly: I agree
Craig: You assume that is cutting off your nose
Craig: We've heard all this before, you know
Craig: It's more than just about the 12M here -
Kelly: how does letting them stay and continuing to earn a living a pay taxes obligate the rest of us?
Craig: we tried this amnesty plan before in the 80s
Craig: and it only encouraged more to come
Kelly: You can't blame the 80's amnesty for this.
Craig: Either the immigration laws mean something or we should just open the borders to any and all
Kelly: Blame poor enforcement
Craig: It's [the 80's amnesty bill] directly responsible
Kelly: Poor foresight
Kelly: Why do people resist the idea of raising the cap?
Kelly: The Dem's argument comes straight from organized labor
Kelly: "They'll depress wages!" is their cry
Kelly: I hate to break it to them but the cow's already out of the barn
Kelly: People who cry about amnesty being a reward are doing one of two things
Craig: 1. Concerned about the law
Craig: 2. Fair and humane
Kelly: They're saying that they feel so strongly about the principle of the rule of law that they're willing to sacrifice their economic well-being
Craig: yes - as were the abolitionists
Craig: The slave holders wanted to keep slavery around in the name of economic progress and health
Kelly: Which is all well and good (except the doubts I have about the lurking xenophobes)
Kelly: but what they're also saying is they want others to make that same sacrifice. Those others may not feel quite so strongly about the issue
Kelly: Is it fair for the, sometimes stridently, vocal minority to make that decision for everyone?
Craig: Then those others need to do what it takes to restore humanity to the people being treated as slave labor
Kelly: The abolitionists may be a good example
Craig: Right and there is more than one reason to uphold the law. If it's right and just, yes!
Craig: How about the Civil Rights Movement?
Kelly: but I think that they were willing but their sacrifice was unneeded but they didn't know that.
Craig: They were asking the rest of the country to change its behavior and attitude based on what is right and just
Kelly: The CRM was about humanity
Craig: So is this
Kelly: People crying about amnesty are not putting the principle of humanity at the top of their priority list
Craig: ??
Kelly: Kick'em out, I don't care if they starve in Mexico.
Craig: How do you know that [i.e., their motivation]?
Craig: You can't divine their motives
Craig: Who said that??
Kelly: They don't care what the effects will be.
Kelly: Ok, I'm only putting words in the mouths of the most extreme ones
Craig: You make a lot of accusations that you have no way of backing up with objective facts or quotes
Kelly: (that's more fun anyway)
Kelly: and the politicians in power do otherwise?
Craig: But you're not a politician in power. Ha!
Kelly: Even if you give them a fact, they'll spin it like a top
Kelly: Can we agree that facts and politicians aren't very good neighbors?
Craig: Isn't that what a politician calls "work".
Kelly: heh
Craig: For many that is true
Craig: Not all
Kelly: A politician who is willing to bend that fact is less concerned with accurate facts than they are perception of facts
Kelly: Where do you see the immigration debate being about being humane?
Craig: I see enforcing the current laws as humane to dry up the illegal labor market. Have you seen how undocumented workers are treated by some businesses. Third world and salve labor conditions.
Craig: It all needs to be brought out to the light of day
Kelly: ah, I see where you're coming from now.
Craig: There is nothing humane about the current state of affairs
Kelly: listen to understand...
Craig: yes
Kelly: but that doesn't apply to all undocumented workers
Kelly: There are some that would like to be here legally but we've put so many roadblocks up that they might as well feel like we don't want them here.
Kelly: it's almost snobbery
Craig: You'd have to get to specifics before I could agree or disagree
Craig: As a broad brushed statement, it doesn't stand.
Kelly: I don't care that you work, pay taxes, raise a family, own your home. If you aren't documented, you don't deserve to be here
Craig: yes
Kelly: So we kick everyone out because a portion of them are being treated inhumanely?
Kelly: what of the ones that are being treated fine?
Craig: Why do you keep trying to frame the debate as "kicking everyone out."
Kelly: Are we punishing them because we're trying to be humane to the abused ones?
Kelly: My apologies
Kelly: It's the conservative line that has stuck in my head
Kelly: It's what I hear when 'Amnesty' comes up
Craig: I am not aware of a single conservative that has advocated the position "to kick them out"
Craig: Everyone agrees that that is not doable. It can't be done.
Kelly: When I've heard about various compromises
Kelly: that provide ways for undocumented immigrants to become either legal or even citizens...
Craig: That only means conservatives don't want to validate their illegal activity
Kelly: the opposition characterizes the compromise as "Amnesty" and unacceptable
Kelly: that's why I wonder about the vehement response from those conservatives.
Kelly: I wonder whether they're hiding some other agenda
Craig: They're mads b/c amnesty was done in the 80s and it didn't work
Craig: We're still dealing with the same problem
Kelly: Do they really feel that anything except 'kicking them all out' is just another amnesty?
Craig: yes
Kelly: or are they hiding racial or xenophobic motives?
Craig: I don't think they have racist or xenophobic motives, but what if they did?
Craig: Does it matter?
Craig: The principle of upholding and honoring the law is still front and center.
Kelly: and since they are so vocal, my perception is that they represent those who don't want reform
Craig: That's just an unfair association on your part
Craig: The vocal anti-war crowd is not representative of the majority of people who want to hold the President accountable for the debacle in Iraq.
Kelly: Their motives are important because their intent for support or opposition should be taken into account when deciding the worth of their argument
Kelly: somewhat like, consider the source
Craig: Their argument stands on its own merits
Craig: Not the motivation of the argument's supporters.
Kelly: Right but they refuse to let others speak sometimes. As if disagreeing is the same as being disloyal.
Kelly: "I'm going to keep shouting my position until everyone agrees with me!"
Craig: That's just bad manners....
Kelly: It's like they don't want other positions to be heard
Kelly: are they so afraid of not being in the majority?
Craig: If the abolitionists were motivated by wanting to send all the non-whites to Africa, did it dilute the rightness of their argument to abolish slavery?
Kelly: You're onto something there
Kelly: but it's not the only reason to abolish slavery.

Where there is Smoke, there is Fire

The recent national immigration firestorm may be dying down but I'm left with some questions.

Why is providing a path to legal status or citizenship considered "Amnesty" by some parties in the immigration debate? Consulting Wikipedia tells us that changing a law does not equate to "Amnesty". Is this true concern for the rule of law or is this a smoke-screen used by xenophobes to feed the fire?

Here are some observances:
The sheer size of the group, an estimated 12 million undocumented workers, tells us several things.
- there are plenty of low-wage jobs to go around
- they keep coming, sometimes braving death
- our economy would be seriously hurt if they went home; who seriously thinks that all those jobs would be filled by US citizens were we even capable of deporting the entire group.

The fact that so many are willing to risk so much just for the opportunity means that we have something of extreme value. The fact that so many are here working and raising families means there is an abundance of opportunity in this country.

It's like we're a kid whose father owns a candy store but we insist on keeping our classmates out because we want all of the candy to ourselves despite the fact that we'll never be able to eat it all ourselves.

So, maybe we'll never agree on what to do with the 'illegals' already here. Kick 'em out and trigger a recession or let 'em stay and watch the conservatives have a conniption fit. I can just see Ann Coulter having a seizure and babbling on about ".. but they're illegals!"

We have an embarrassment of riches. We have so much economic growth that we can't fill all the jobs with our own citizens. What options does that leave us?

Problem: Too many jobs
Solution 1: fire the illegals and hope more citizens want to work backbreaking low-wage jobs
Solution 2: let them stay and pay a fine or otherwise become documented; this generates an undeserved whirlwind of "Amnesty"
Solution 3: send all the extra jobs overseas; ok, maybe we've finally found the theoretical limit to offshoring jobs, this is illogical for harvesting crops or landscaping

and the most overlooked?

Solution 4: raise the cap on the number of immigrants allowed into the country per year

If the supply of jobs is so high and the demand for them is even higher, why keep letting so few in? Our current policy is akin to rationing water during a rainstorm but making it illegal to use what is freely falling to our feet.

Of what are we afraid?

The Salve of Time

In his book Constitutional Reform and Effective Government, James L. Sundquist considers constitutional reforms that would enable the branches of the U.S. government to work together more effectively, particularly the political branches - the Senate, the House and the president. His premises are that (1) the constitutional structure of our government encourages conflict and debate and this can be bad, but worse, (2) the cycle of our elections leaves our government open to debilitating crisis. One of his less-radical proposed solutions is to add some form of "safety valve" available to the president and the Congress in the event that they are hopelessly deadlocked on some major issue or the president is so unpopular that keeping him in office is detrimental to the country. After exploring several alternatives, Sundquist settles on giving the president or a constitutional majority (a majority of total membership) of either the House or the Senate the power to call special elections, in which the total membership of both houses of Congress and the presidency would be up for election for full terms. The idea is that this would give one of the three players the option to throw everything to the People so that Washington could be "reset," thereby resolving the issue causing deadlock (either disagreement on an issue or an unpopular or ineffective president) and enabling the government to return to effective collaboration.

Part of me is drawn to this type of proposal. It has a certain resemblance to the safety valve available in parliamentary systems in which the legislature can hold a vote of no-confidence in the Government, in which case the government ministers must resign or the head of state must dissolve the legislature and call for new elections. If a Government has become ineffective or a prime minister unpopular, then there is a mechanism to relieve the pressure and let the People speak through new elections.

This is the type of mechanism that Sundquist is looking to apply to the American context. Neverthless, a larger part of me doubts the wisdom of such a proposal. Time is the safety valve that the Founders built into the American constitutional system. With the entire House of Representatives and one-third of the Senate elected every two years, elections are close enough together to (theoritically) keep our representatives and senators accountable and responsive to the People. If it be a mid-term election, the People can give the president more power if they approve of his job performance by giving him more supporters in Congress, or the People can diminish and cripple the president if they disapprove of his job performance by giving the Opposition the majority in Congress, as happened in the elections last November. A congressional Opposition majority can do a lot to thwart an ambitious president (e.g., derail his domestic priorities or defund his foreign initiatives). The worst that can result is an ineffective government, which I do not think is necessarily a bad thing.

If there be any weakness with the American system, however, it is the possibility of a bad, ineffective, or unpopular president remaining in power for two or three years until the next presidential election. Short of an impeachment (which this country sees as a traumatic, destabilizing, debilitating act) or the provisions of the Twenty-fifth Amendment for removing a disabled president, there is no way to force a president from office for "maladministration" (however that term is defined). This design serves a purpose of allowing the president time to govern without constantly being beset by looming elections. If a president truly needs to be forcibly removed from office, I can't think of a situation that impeachment or the Twenty-fifth Amendment wouldn't cover. As noted above, maladministration can still be countered by giving the Opposition the majority in Congress at the mid-term election or voting the president out of office at the next presidential election.

If it is only deadlock between the president and Congress that needs to be relieved, only three years at a maximum (assuming a president usually gets most of what he wants during his first year in office) would pass until the next election. Many people point to the inability to remove President Bush from office now as "proof" that some sort of mechanism is needed to force his early exit, but the People elected him to a second term in 2004. He also still retains a base of support that enables him to effectively govern and build political coalitions. At some point, the People deserve the Government they elected, and they have to live with it.

It would seem that proposals such as Sundquist's calling of special elections would introduce ineffective government through the constant threat of new elections. It would seem that such a proposal would lead to debilitation if special elections are called more often than Sundquist thinks (i.e., once or twice in a century). Politicians would be constantly campaigning, lea ing little or no time for actual governance. Democracies in Italy and Israel are notoriously unstable because the Government does not have the distance necessary from the People to allow it to do unpopular things that are necessary from time to time when governing is necessary.

If a president needs to be removed, Congress should take the political risk necessary to impeach him. Or the provisions of the Twenty-fifth Amendment should be envoked. Otherwise, allow the salve of time to work its magic.

Legislation is...

Revision 2:
Laws define the borders that society has staked around its principles. If mores were cattle, legislation is the fence that protects them from the untamed wild.

Revision 1:
Laws define the borders that society has staked around its principles. If mores were cattle, legislation is the fence that limits their range.

Original:
Legislation is the embodiment of the borders society has staked around is principles. If moors were cattle, legislation is the fence that defines the limits of their range.
--Kelly French

Proposed Amendment #3: Balanced-Budget Veto Amendment

The Text:

Section 1. For purposes of this article, the budget of the United States for any given fiscal year shall be deemed unbalanced whenever the total amount of the debt of the United States held by the public at the close of such fiscal year is greater than the total amount of the debt of the United States held by the public at the close of the preceding fiscal year.

Section 2. If the budget of the United States is unbalanced for any given fiscal year, the President may separately approve, reduce, or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the legislative and judicial branches of the United States Government, and which is presented to the President during the next annual session of Congress.

Section 3. Any legislation that the President approves with changes pursuant to section 2 of this article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed under section 7 of Article I for bills disapproved by the President, separately reconsider those reduced or disapproved monetary amounts.

Section 4. The Congress shall have the power to implement this article by appropriate legislation.

Section 5. This article shall take effect on the first day of the next annual session of Congress following its ratification.

Section 6. This article shall be inoperative unless it shall have been ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by Congress.

The Problem:
After a brief period of budget surpluses in the late 1990's, Congress returned to excessive deficits in this first decade of the twenty-first century. This mostly uninterrupted pattern of budget deficits are fueled by large-scale fear of tax hikes and congressional unwillingness to cut spending and pork, and it has become apparent that this is an institutional problem. The only constitutional check to control congressional-spending binges is the presidential veto, but it has proven too blunt and clumsy of an instrument. The item veto is a solution that has worked with some degree of effectiveness at the State level, but even its potential impact on budget discipline would be minimal without some sort of incentive built in for Congress to impose this needed discipline on its own.


The Explanation:
Rather than attempt to explain the need for this amendment, I'll defer to this excellent analysis offered by the CATO Institute.

Call Me Oedipus

The Virginia Tech shooting that transpired on Monday, April 16th 2007 is as tragic as any the Greek poets left us. A greater tragedy is the response it has evoked across the country. Blaming the availability of guns or the exposure to violence are the whipping boys of the demagogues crying out for quick action. The urge to 'do something' overwhelms society's psyche, and we search for solutions to the ever-present questions events like this one force us to face.

We have a need to make sense of the world. When a senseless thing happens such as a school shooting, we have no rational way to respond, so we respond irrationally.

Society asks rhetorical questions seeking answers to the unknown; "Why me?", "Why did this happen?", and others find their way to our lips. The questions that are the most telling, to me, are "What can we do to prevent this from happening again?" and "What drove this person to commit such a heinous act?" They are not the same question. The former asks us to focus on the symptom while the latter asks us to focus on the cause. Neither is easily answered and when our leaders are judged by the perception of action, they'll gravitate to the the easiest and quickest cure available. (aside- It's as if amputating the offending limb will cure the leprosy patient. It might but how many 'cures' will they withstand?)

We fear that which we can not control and thus we seek to control that which we fear using logic that would make Möbius proud. Real control, like over human-nature, is like unrefined gold ore; it's difficult to find, takes a lot of work to produce, and comes with a large price-tag. The appearance of control is like fools-gold; plentiful, cheap, and available right now.

Politicians become like snake-oil peddlers. They don't know or even care if their product will do what they claim, only that their marks believe it will. When we go looking for gold, maybe the sticker-shock convinces us to compromise, maybe we rationalize, "The nice guy gave me a deal and sold it to me for 10-cents on the dollar!". Whatever the reason, when we keep paying full-price for fools-gold, not only do we deserve what get, we'll never run out of people willing to separate us from our money.

How we respond is a great measure of the change engendered by society in itself.

Congress vs. SCOTUS

...secure the Blessings of Liberty to ourselves and our Posterity...
--Preamble of the U.S. Constitution

It is possible that conflicting principles are embedded within the Constitution itself. In any given case, securing the blessings of liberty for both ourselves and future generations might be mutually exclusive. For example, today's economic growth potentially compromises tomorrow's environment. Or fighting in Afghanistan and Iraq sacrifices the freedom and lives of today's soldiers for the chance of a more peaceful world tomorrow.

The following are notes from a brainstorming session that Kelly and I had last week that started with thinking about the proper constitutional roles for Congress and the U.S. Supreme Court (SCOTUS) and ended with the above observation (which is also the premise of our paper The Governance Imperative).




What of when SCOTUS is wrong? When SCOTUS invalidates a law but is wrong, no harm is done since Congress can repass it.

When SCOTUS uses wording from the Constitution, it's rulings are generally accepted.

When SCOTUS erects its own language and standards and inferred rights, even as "logical" extensions of constitutional principles, conflict ensues.

The Constitution values certain principles, which we have gleaned from the Preamble:

• peace


• welfare


• liberty


• posterity


• justice

The purview of Congress is to make relative value judgments regarding these principles, balancing the importance and weight of each of these in the law-making process.

It is the role of the Supreme Court to oversee this balancing act, ensuring that Congress remains within the bounds of the constitutional application of governmental power (fairness).

When Congress or the Supreme Court allow these principles to get out of whack or outside of constitutional limits, society is plunged into the realm of the inhumane.

Some of the principles that Congress has to consider in this grand juggling act are, in some instances, diametrically opposed:

• safety vs. freedom


• posterity vs. liberty


• transcendence vs. immanence

The logical flaw of signing statements

If the Administration can choose how to interpret a law through issuing signing statements, there's no difference between this and the power to ignore existing laws that were in place before the President came into office. The fact that a law is in the process of being signed when the President declares his intent to ignore it, is irrelevant. If the President has the power to ignore this kind of law, he has the power to ignore laws that were in effect when he took office.

The part the executive branch plays in the constitutional balance of powers is in the need for any Administration to set priorities in the laws that it enforces. Resources are finite and must be rationed. The Clinton Administration put more importance on civil rights laws than the Bush Administration, which puts more emphasis on enforcing child pornography laws. But the constitutional charge of the President is to make sure all laws are faithfully administered; he has no power to ignore or interpret.

Limitations of the law

The other day, I was explaining to Craig why helmet and seatbelt laws rub me the wrong way. In terms of expressions of power, it's pretty minor and as a tool to shape behavior, it seems to work. It is one thing to allow health insurance companies to charge higher rates to those who choose to smoke. With seatbelt/helmet laws we've used the power of the state to enforce a preferred behavior. When asked why the State should care whether I wear a helmet, the response is basically that the State has to clean up the mess if I do something irresponsible. Does that mean that the State will eventually make eating poorly illegal? Think of all the health care costs that come from obesity. Where will it end? Legislating tooth brushing and flossing? That may seem silly, but it is an expression of a principle on the proper use of power.

Using the law to enforce a moral behavior, like wearing a helmet, rather than to prohibit an immoral act, like murder, is where we start to cross the line into the inappropriate use of governmental power.

Proposed Amendment #2: Repeal the 17th Amendment

The Text

Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

The Problem
The Constitution originally provisioned for state legislatures to select each state's two senators. The idea was for the Senate to represent the interests of states as states, not simply as another chamber representing the same constituency as the House of Representatives. The Federalist Papers speak time and again of checking the passions of men and balancing the branches of government by using competing interests and differing power sources to prevent one group from gaining domination. A Senate that was, in essence, composed of ambassadors from the several States provided a balance in the deliberation of federal legislation and foreign policy because the origin and composition of its membership was different from that of the House.

Corruption in the senatorial selection process and deadlocked legislatures led to states going years without representation in the Senate and the perception that the Senate did not represent the interests of the People. Agitation for changing the way Senators were selected grew throughout the 19th century, culminating with the Progressive Movement of the early twentieth century and the passage of the Seventeenth Amendment to the U.S. Constitution in 1913. Direct election of U.S. senators was instituted, removing the place of the States in the federal scheme (left only with the chance to lobby, negotiate, or sue) and effectively turning the Senate into an extension of the House of Representatives.

There are several areas impacted by the passage of the Seventeenth Amendment. I will review each of them in turn, but the affected areas as I see them are as follows:

• Nature of the Senate


• federalism


• Campaign finance

Nature of the Senate
Since the Senate derives its base of power and support from the People, the Senate is no longer "a salutary check on the government" (Federalist 62) because senators are not independent of the passions of the times or the direct influence of the public. A senatorial selection process driven by state legislatures in careful deliberation and cool contemplation has a better chance of producing a Senate of the brightest minds and most talented people from all segments of society than do yet another round of direct elections driven by the same old political process. Politics has an important place in our democratic republic, but so does competent thought, careful debate, and independent questioning of the prevailing opinion.

Witness,

• The Senate no longer considers the constitutional appropriateness of legislation, affecting the balance of power between Washington, D.C., and the states and arguably leading to a more active Supreme Court, which finds itself ruling on legislation that probably never should have been passed;


• Rather than the Senate serving as a judicious, independent and legislatively empowered investigative body, independent commissions (e.g., BRAC - the Base Closure and Realignment Commission), study groups (e.g., the Iraq Study Group or 9/11 Commission), and the recently-lapsed independent counsel law are needed when our government needs to transcend politics.

The Senate is effectively a mirror of the House, passing legislation based on its popularity and providing no thought that transcends the petty Talking Points of the day.


Federalism
Since the passage of the Seventeenth Amendment, the growth of the federal government has been exponential and all pretenses of a Congress with specific, enumerated powers as outlined in Article I, Section 8 of the Constitution have been thrown out the window. The "necessary and proper" clause is the constitutional limit of Congress's power, and the definition and scope of this clause are expanded with the needs of the country. There is no longer a structural component of the federal system that is in place to push back on the expansion of federal power and to represent and support the place of the States in the federal system.

A healthy federal system facilitates several things:

• local issues and concerns are managed and decided by local jurisdictions, leaving federal energy free to focus on more national concerns and priorities (witness the manner in which abortion has entangled presidential politics and judicial nominations);


• power is diffused and not concentrated;


• proving grounds for future national leaders among state and local governments;


• competition among the States, encouraging innovation and creative problem-solving;

Beyond the implementation of more parchment barriers in the form of Article I, Section 8 or continued reliance on the shifting sands of the Supreme Court, a structural mechanism to help define the shifting horizons of federal and state power would reinstate federalism as an active, primary part of the legislative process and renew appreciation for its importance to the American scheme of governance.

Campaign finance
The direct election of senators arguably removed the problem of bribery (at least from among the ranks of the state legislators), but now that senators campaign among a wider electorate, the costs of running senatorial campaigns have sky-rocketed. Among elected positions in America, Senate campaigns are second in expense only to presidential campaigns (which are beset with their own issues and problems).


The Explanation
Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
This section simply repeals the provisions of the Seventeenth Amendment and returns the senatorial selection process to the original constitutional prescription.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
The language of this section echoes that of the original selection provisions in Article 1, Section 3. The only additional clause is a specific grant of power to the state legislatures of reappointment of a senator. This is designed to be coupled with the removal clause of the next section to make clear that a U.S. senator would serve at the pleasure of the state legislature that sent her. A senator's primary job in the U.S. Senate would be to represent the interests of her State, as a State.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
The provisions of this section are an addition to the language of the original constitutional scheme. Under this section, a state legislature would be able to remove a senator that it was dissatisfied with or just wanted to replace before the end of the senator's six-year term. As long as the majority of each state legislative chamber voted to recall the senator, the senator's removal would be final and not subject to repeal.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.
In 1866 Congress responded to problems of state legislature bribery and deadlock by passing a law regulating the manner in which states selected their senators. The legislation required that each chamber of the state legislature meet separately and select a senator in open vote. If the houses of the legislature did not select the same nominee, the chambers were then to meet in joint session every day until a senator was selected by majority vote.

Ironically, the congressional act exasperated the very problems it was enacted to solve. Perhaps the requirement for a joint session frustrated the constitutional principle of checks and balances. Or perhaps requiring a majority vote rather than a plurality instantiated an impossible standard. Whatever the cause, the cases of deadlocked legislatures, accusations of bribery, and incidents of lost state representation in the Senate increased markedly after 1866. Congressional meddling toppled the system of senatorial selection that worked relatively well before the Civil War.

This section is included in this proposed amendment to avoid the temptation in Congress to fix every problem in American society through the passage of a new law. Even if state legislatures are deadlocked or beset with bribery and corruption, it is one of the things that should be left to the state legislatures to work out themselves. After all, it is the State itself that would suffer from a loss of senatorial representation, and it would be state legislators who broke bribery laws or committed corruption who would face jail time if proven guilty in a court of law. Let the political and judicial processes apply the pressure needed to move past these problems.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
This last section is in place to facilitate transition in the case that this amendment is ratified as part of the Constitution.

Other resources

• Democratizing the Constitution
  
• FindLaw Forum: Should the 17th Amendment be repealed?
  
• Repeal the 17th Amendment blog

Asking the wrong questions. Again.

SCOTUSblog reports on in the case of Medellin v. Texas (06-984) and arguments before the U.S. Supreme Court over whether the president has the power to dictate the outcome of state judicial proceedings based on U.S. treaty obligations. The Fifth Circuit and the Texas Court of Criminal Appeals (the highest state court in Texas for criminal cases) both ruled that the President does not have authority to direct state courts to follow a ruling by the International Court of Justice. Lyle Dennison of SCOTUSblog writes: "In an amicus filing in the case of Medellin v. Texas (06-984), the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal's [World Court's] decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here."

The Administration is arguing that "the Texas ruling will undermine the President's authority to determine 'how the United States will comply with its treaty obligations.'" Their theory is that the treaty power trumps any federalism concerns.

My concern is that the Administration is, once again, building a strawman argument. Of course treaty obligations trump issues of federalism. But this is not the point that should be argued before the Supreme Court. The true question is whether the executive branch can dictate to the judicial branch. If someone asked if the president could tell the U.S. Supreme Court how to decide one of its cases, the questioner would be laughed out of the room. It sounds absurd because it is.

The judicial branch is an independent branch of government, separate from the executive power. The fact that in this case the judicial branch is that of an independent state only adds to the reasons why the Administration's arguments here are patently ridiculous.