Coyote Blog

Dear Republicans:

The last thing we need now is even more expansion of executive power.  I remember when, gosh it was like only two or three years ago, you Republicans were (rightly) bemoaning Obama's executive actions as unconstitutional expansions of Presidential power.  You argued, again rightly, that just because Congress did not pass the President's cherished agenda items, that did not give the President some sort of right to do an end-around Congress.

But now, I hear many Republicans making exactly the same arguments on the wall that Obama made during his Presidency, with the added distasteful element of a proposed declaration of emergency to allow the army to go build the wall.

I personally think the wall is stupid, will solve nothing, and will be a moral blight on this country -- its ugly to think of use having our very own Berlin Wall.  But forget all that, for now I am not arguing against the wall, but against the proposed process.

I can pretty much guarantee you that if Trump uses this emergency declaration dodge (and maybe even if he doesn't now that Republicans have helped to normalize the idea), the next Democratic President is going to use the same dodge.  I can just see President Warren declaring a state of emergency to have the army build windmills or worse.  In fact, if Trump declares a state of emergency on a hot-button Republican issue, Democratics partisans are going to DEMAND that their President do the same, if for no reason other than tribal tit for tat.

Postscript:  Now that I am handing out political advice to Republicans, what is the deal with your Ocasio-Cortez fixation?  I hear many folks on both sides of the aisle who attribute some of Trump's electoral success to the media fixation on him that kept him in the news constantly.  I am reminded of the old Pepsi challenge, where Pepsi showed people choosing their product over Coke.  But the thing was, while Pepsi's sales increased, so did Coke's because the commercials kept Coke's name prominent in people's minds and established it as the product to which everyone else compares themselves.  Do you really want to do the same thing with Ocasio-Cortez?

Way back in 2014 I wrote:

I often wonder if Democrats really believe they will hold the White House forever.  I suppose they must, because they seem utterly unconcerned, even gleeful in fact, about new authoritarian Presidential powers they would freak out over if a Republican exercised.

Coyote's first rule of government authority:  Never support any government power you would not want your ideological enemy wielding.

As Damon Root writes:

In December 2007 presidential candidate Barack Obama told The Boston Globe that if he won the 2008 election, he would enter the White House committed to rolling back the sort of overreaching executive power that had characterized the presidency of George W. Bush. "The President is not above the law," Obama insisted.

Once elected, however, President Obama began to sing a different sort of tune. "We're not just going to be waiting for legislation," Obama announced. "I've got a pen and I've got a phone...and I can use that pen to sign executive orders and take executive actions and administrative actions."...

To make matters worse, many of Obama's fervent liberal supporters pretended to see nothing wrong with such obvious abuses of executive power. For example, consider the behavior of the prestigious editorial board of The New York Times. Back in 2006, when George W. Bush had the reins, the Times published an unsigned editorial lambasting Bush for his "grandiose vision of executive power" and his foul scheme to sidestep the Senate and unilaterally install his nominees in high office. "Seizing the opportunity presented by the Congressional holiday break," the Times complained, "Mr. Bush announced 17 recess appointments—a constitutional gimmick."

But guess what the Times had to say a few years later when President Obama had the reins and he utilized the exact same gimmick? "Mr. Obama was entirely justified in using his executive power to keep federal agencies operating," the Times declared in defense of Obama's three illegal appointments to the National Labor Relations Board. (Those three NLRB appointments, incidentally, were ruled unconstitutional by a 9-0 Supreme Court.)

I remember a conversation with my mother-in-law, who is a fairly accurate gauge of New England Left-liberal thought.  She was absolutely adamant that the Republican Congress, from the very beginning, had dug in and refused to work with Obama and that the resulting gridlock gave Obama the absolute right to work around Congress and govern by fiat.   I remember asking her, are you comfortable giving President Lindsey Graham that power too? (Trump was not even a glimmer in the eye of the body politic at that point so Graham was the best Republican bogeyman I could think up on short notice).  I don't remember an answer to this, which reinforced the sense I had at the time that Democrats honestly did not think they would lose the White House in their lifetimes -- I suppose they thought that 8 years of Obama would be followed by 8 years of Clinton.

Well, the freak out is officially here and I will happily embrace all Democrats who want to make common cause in limiting Presidential power.

Coyote's first rule of government authority: Never support any government power you would not want your ideological enemy wielding @reason

— Coyoteblog (@Coyoteblog) November 14, 2016

Update:  Glenn Greenwald makes many of the same points

Sen. Barack Obama certainly saw it that way when he first ran for president in 2008. Limiting executive-power abuses and protecting civil liberties were central themes of his campaign. The former law professor repeatedly railed against the Bush-Cheney template of vesting the president with unchecked authorities in the name of fighting terrorism or achieving other policy objectives. “This administration also puts forward a false choice between the liberties we cherish and the security we provide,” he said in 2007. Listing an array of controversial Bush-Cheney policies, from warrantless domestic surveillance to due-process-free investigations and imprisonment, he vowed: “We will again set an example for the world that the law is not subject to the whims of stubborn rulers.”

Yet, beginning in his first month in office and continuing through today, Obama not only continued many of the most extreme executive-power policies he once condemned, but in many cases strengthened and extended them. His administration detained terrorism suspects without due process, proposed new frameworks to keep them locked up without trial, targeted thousands of individuals (including a U.S. citizen) for execution by drone, invoked secrecy doctrines to shield torture and eavesdropping programs from judicial review, and covertly expanded the nation’s mass electronic surveillance.

Blinded by the belief that Obama was too benevolent and benign to abuse his office, and drowning in partisan loyalties at the expense of political principles, Democrats consecrated this framework with their acquiescence and, often, their explicit approval. This is the unrestrained set of powers Trump will inherit. The president-elect frightens them, so they are now alarmed. But if they want to know whom to blame, they should look in the mirror.

From an interview of Political scientist Steven Teles by Megan McArdle:

In political science we often model political actors as having fixed interests and positions, and then we try to figure out how they do or don't get their way. But there's actually more play in the joints of politics than that. Some people -- like Ronald Reagan! -- just switch teams entirely. More broadly, as we address in the book, entire parties switch their positions. If we want to understand politics, we need some way of understanding that process.

As I grow older, and have had more time to observe, I find the shifts in party positions fascinating and oddly opaque to most folks who are in the middle of them - perhaps this is one advantage to being part of neither major party.   Some of the shifts are generational -- for example both parties have moved left on things like homosexuality and narcotics legalization.   Some of the shifts have to do with who controls the White House -- the party in power tends to support executive power and military interventionism, while the opposition tends to oppose these things.   Some of the shifts have to do with who controls intellectual institutions like college in the media -- the group in control of these institutions tends to be more open to first amendment restrictions, while the out-of-power group become desperate defenders of free speech (look how the campus free speech movement has shifted from the Left to the Right).

I would love to see a book on this covering the last 50 years.

It is hard to remember, or even believe today, the absolute hysteria that accompanied Obama's nomination.  Even folks who should have known better were sucked in.  I seemed to be the only surly one that day who found the adulation, the near Imperial coronation, sickening.  Here is an excerpt.  I stand by it six years later:

Folks are excited about Obama because, in essence, they don't know what he stands for, and thus can read into him anything they want.  Not since the breathless coverage of Geraldo Rivera opening Al Capone's vault has there been so much attention to something where we had no idea of what was inside.  My bet is that the result with Obama will be the same as with the vault.

There is some sort of weird mass self-hypnosis going on, made even odder by the fact that a lot of people seem to know they are hypnotized, at least at some level.  I keep getting shushed as I make fun of friends' cult behavior watching the proceedings today, as if by jiggling someone's elbow too hard I might break the spell.  Never have I seen, in my lifetime, so much emotion invested in a politician we know nothing about.   I guess I am just missing some gene that makes the rest of humanity receptive to this kind of stuff, but just for a minute snap your fingers in front of your face and say "do I really expect a fundamentally different approach from a politician who won his spurs in .... Chicago?  Do I really think the ultimate political outsider is going to be the guy who bested everyone at their own game in the Chicago political machine?"

Well, the spell will probably take a while to break in the press, if it ever does -- Time Magazine is currently considering whether it would be possible to put Obama on the cover of all 52 issues this year -- but thoughtful people already on day 1 should have evidence that things are the same as they ever were, just with better PR.   For God sakes, as his first expenditure of political capital, Obama is pushing for a trillion dollar government spending bill that is basically one big pork-fest that might make even Ted Stevens blush, a hodge-podge of every wish-list of leftish lobbyists that has been building up for eight years.  I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

It has been suggested by some that today is less a cultish corronation but a big victory party in the battle against racism.  Well, I am certainly willing to accept it on those terms.  I have been arguing for years that it is time to declare victory on the worst aspects of race and gender discrimination, and move on to problems of interest to all races (like individual freedom or giving kids options to escape crappy public schools).   Unfortunately, I fear that too many folks in power are dependent on the race/gender/class wars continuing, so you and I may think we are declaring victory, but those with power over our lives have not.

Both parties chose to run against people who were not even on the ballot yesterday.  Republicans ran against the President and largely won.  Democrats ran against the Koch brothers (who are not even elected officials or even the largest private donors in the election) and to a lesser extent against mythical candidates who were going to ban all contraception, and lost.

Honestly, I can only remember three elections in the last 40 years with changes in power that really mattered in terms of actual legislative and policy changes:  The first term Reagan and Obama elections and the midterm election of the Gingrich Republicans in '94.

This Republican class lacks the unity around a written legislative agenda that the Gingrich Republicans had.  So I don't really expect much.  The best we can hope for is perhaps a bit more effective push-back against creeping executive power, which certainly would be welcome.

I wrote on the day of Obama's inauguration:

I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

From Charlie Savage in the New York Times:

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.

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 policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence 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, 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.”

The title of this post comes from something my son said, after a few hours on Facebook with everyone in that forum dancing on Osama's grave.  He said he just couldn't work up the excitement felt, by, say folks on the local news last night chanting "USA, USA."

I know how he feels.  Certainly Osama is a mass murderer and deserves to die.  And I suppose it is important from a foreign policy standpoint that if we say we are going to do something, we do it, even if it takes ten years or so.  And Kudos to the military team that got him.

But I heard commentators say that this was another Kennedy moment when we would always remember where we would be when Osama was killed -- that seems a gross exaggeration.   I don't think I was in need of or received a nationalist ego boost last night.  The reaction almost reminded me of the US Olympic hockey victory in 1980, when people frustrated with internal and external problems found release in the victory on the ice over the Russians.   But cheering about killing a guy, even a bad buy, in the same way as one might for a sports team victory just leaves me a bit queasy.

Besides, isn't Bin Laden largely irrelevant now?  If he is the spider at the center of the global web of terrorism, I have certainly missed the evidence.  Frankly, this whole thing feels like grabbing the Kaiser out of the Netherlands in 1938 and hanging him.  Not only a  bit late, but  a diversion of attention from the source of current problems.

Update: How Bin Laden Changed America.  Example:  without Bin Laden, we probably would not have  a progressive Democratic President who claims the right to assassinate American citizens.

Update #2: It has been made increasingly evident to me that I am out of step with America on this.  Fine, not the first time.  Let me just say, then, that the precedent of sending US troops into a sovereign nation without that nation's permission or knowledge and kidnapping/assassinating a foreign national based on the President's say-so based on intelligence gathered in part from torture of people detained indefinitely without due process in secret CIA prisons is, well, a precedent we may some day rue.  From time to time Presidents may need to make such calls, but I am not going to be celebrating in the street.  If a Pakistani team did the same, even to, say, raid a California prison and kill Charles Manson, I still think we might be pissed off about it.

Update #3: After a few days introspection, I don't know why I am brooding so much about this.  I must admit it was a good move to go in and knock him off, and while I hate precedents for expansion of executive power, this particular move was entirely justified.   I am not sure why the initial response to this rubbed me the wrong way -- perhaps because the celebration seemed to be excessive vs. the strategic value.    I suppose I am not big on symbolic victories.  Had I been alive in 1942 I probably would have reacted negatively to the Doolittle raid.

that this military detainment issue was a dangerous one, first in Gitmo, and now with Bradley Manning.   I understand the administration and the Army are pissed at the guy for embarrassing them and potentially giving away secrets to hostile parties, but the guy has not been tried or convicted of anything.  Hell, even if he had been convicted of something, I can't believe he would be sentenced to the punishments he is enduring in what is essentially pre-trial detention.   We are all pissed at Jared Loughner but we haven't treated him this way in detention.

The military is NOT doing anything to improve their case that they should be allowed to handle indefinite detentions, such as at Gitmo, through their procedures rather than civil ones.

The Left seems upset and surprised that Obama would allow such a thing, given his rhetoric on the campaign trail.  I was never surprised -- I wrote on inauguration day that candidates who want more transparency in politics and reductions in Presidential arbitrary authority generally change their tune once in office.  As I wrote then, "It seems that creeping executive power is a lot more worrisome when someone else is in power."  And if that wasn't enough, the Administration's about face on closing Gitmo was another reminder.

I must say I am feeling pretty good about my comments from Inauguration Day two years ago.  Here is an excerpt of what I wrote:

Folks are excited about Obama because, in essence, they don't know what he stands for, and thus can read into him anything they want.  Not since the breathless coverage of Geraldo Rivera opening Al Capone's vault has there been so much attention to something where we had no idea of what was inside.  My bet is that the result with Obama will be the same as with the vault.There is some sort of weird mass self-hypnosis going on, made even odder by the fact that a lot of people seem to know they are hypnotized, at least at some level.  I keep getting shushed as I make fun of friends' cult behavior watching the proceedings today, as if by jiggling someone's elbow too hard I might break the spell.  Never have I seen, in my lifetime, so much emotion invested in a politician we know nothing about.   I guess I am just missing some gene that makes the rest of humanity receptive to this kind of stuff, but just for a minute snap your fingers in front of your face and say "do I really expect a fundamentally different approach from a politician who won his spurs in "¦. Chicago?  Do I really think the ultimate political outsider is going to be the guy who bested everyone at their own game in the Chicago political machine?"

Well, the spell will probably take a while to break in the press, if it ever does "” Time Magazine is currently considering whether it would be possible to put Obama on the cover of all 52 issues this year "” but thoughtful people already on day 1 should have evidence that things are the same as they ever were, just with better PR.   For God sakes, as his first expenditure of political capital, Obama is pushing for a trillion dollar government spending bill that is basically one big pork-fest that might make even Ted Stevens blush, a hodge-podge of every wish-list of leftish lobbyists that has been building up for eight years.  I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

To this last point, the recent recommendations by the Center for American Progress to Obama are pretty chilling.

[The] Center for American Progress today is releasing a report, "Power of the President," proposing 30 executive actions the president can take to advance progressive change in the areas of energy, the economy, health care, education, foreign policy, and national security. "The following authorities can be used to ensure progress on key issues facing the country today: Executive orders, Rulemaking, Agency management, Convening and creating public-private partnerships , Commanding the armed forces, Diplomacy.

The New York Times fleshes out these proposals with some suggestions about policy changes across the board. The ideology of George Soros shines through the Center's report as it justifies this forceful approach to circumvent Congress when it states that:

[The] legislative battles that Mr. Obama waged during his first two years "“ notably on health care and financial regulatory reform "“ have created a weariness among the general public with the process of making laws. And it hints it has not helped Mr. Obama politically in the process.

In other words, when Congress passed a variety of laws Americans became dismayed by the horse-trading and bribes that were resorted to by Democrats to impose these policies on us. Instead of compromise and listening to the American people, Soros counsels that more forceful measures should be used to override the will of the American people.

From the Telegraph, via  Q&O:

Barack Obama's administration has authorised the assassination of the radical Muslim cleric Anwar al-Awlaki, a rare move against an American citizen.

I am reminded of what I wrote on the day of Obama's inauguration:

I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

But don't worry, separation of powers has been respected:

The decision to add him to the US hit list required a National Security Council review because of his citizenship.

You see, before Obama can unilaterally order an American citizen killed, he has to review the decision with, uh, a group of people he appointed and that work directly for him.  From Bruce McQuain:

But who the hell is Barack Obama to arbitrarily and unilaterally waive Constitutional due process (oh, that's right, he's a Constitutional law professor, isn't he?) and order the assassination of a US citizen?  And as an aside "“ where are all the liberal voices who spent every waking hour worrying about George Bush's eavesdropping and loudly denouncing it, forever and ever, amen?  Why are they, for the most part, silent on the subject of assassinating a US citizen?

On the day of Obama's inauguration,  I wr0te:

I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

I want to highlight two recent stories.  First, via Popehat:

The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama's plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday.

Last summer, White House officials said they had ruled out seeking a "preventive detention" statute as a way to deal with anti-terror detainees, saying the administration would hold any Guantanamo prisoners brought to the U.S. in criminal courts or under the general "law of war" principles permitting detention of enemy combatants.

However, speaking at a news conference in Greenville, S.C., Monday, Graham said the White House now seems open to a new law to lay out the standards for open-ended imprisonment of those alleged to be members of or fighters for Al Qaeda or the Taliban.

That is a really, really bad idea.  What would J Edgar Hoover had done with such a law?  Would Martin Luther King have been declared a terrorist.  And speaking of King, who the FBI kept under illegally deep surveillance for years, we have a second related story via Disloyal Opposition:

Last Friday, federal attorneys told the U.S. Third Circuit Court of Appeals that government officials should be able to track the location of Americans by following their cell phone transmissions -- without having to get a warrant. While the FBI and state and local officials have already obtained logs from mobile phone companies that reveal the locations of customers' telephones, the practice has never formally been endorsed by the courts. The latest federal arguments -- and rebuttals by civil liberties organizations -- give the courts the opportunity to either support or repudiate federal claims that Americans have no "reasonable expectation of privacy" so long as they carry cell phones.

Yes, I blame Bush for getting the ball rolling on both these fronts, but wtf did we elect Obama for?  Many libertarians held their nose at his interventionist economics in order to try to thwart what they saw as a scary trajectory for executive power and civil liberties.  If we had wanted populist economic machinations combined with limitations on individual liberties, we could have voted for Pat Buchanon.

I think my post from Inauguration Day one year ago holds up pretty well, though I caught a lot of grief for it at the time  [a few spelling errors fixed]

OK, I was really going to remain silent today, because no one seems to want to hear a rant about today's imperial coronation.  But as I sit here watching the press coverage and waiting for John the Baptist to show up, and as I observe the general cultish hysteria and the swooning of normally serious adult people, I just can't help myself.  For a libertarian like myself, its like watching people line up at 3am to be the first to be in the store when McDonald's switches its fountain drinks from Coke to Pepsi.   Heck, I was creeped out by the cult following of Ron Paul this year, a politician I agree with a lot, so I certainly am going to get the willies from the love-fest for an admitted statist like Obama.

I am not enough of a historian to speak for much more than the last thirty years, but the popularity of non-incumbent political candidates has typically been proportional to 1) their personal charisma and 2) our lack of knowledge of their exact proposals.  Seriously, can you name any other difference (on the plus side) between Obama and Hillary other than these two?  We forget, but GWB was the unknown newcomer in 1992.  As was Clinton and Carter.  Reagan was an exception, but was running against an incumbent who really had a terrible four years, and Bush I was an exception as well, though he was running against one of the weakest candidates and campaigns the Democrats have fielded in 50 years.  Folks are excited about Obama because, in essence, they don't know what he stands for, and thus can read into him anything they want.  Not since the breathless coverage of Geraldo Rivera opening Al Capone's vault has there been so much attention to something where we had no idea of what was inside.  My bet is that the result with Obama will be the same as with the vault.

There is some sort of weird mass self-hypnosis going on, made even odder by the fact that a lot of people seem to know they are hypnotized, at least at some level.  I keep getting shushed as I make fun of friends' cult behavior watching the proceedings today, as if by jiggling someone's elbow too hard I might break the spell.  Never have I seen, in my lifetime, so much emotion invested in a politician we know nothing about.   I guess I am just missing some gene that makes the rest of humanity receptive to this kind of stuff, but just for a minute snap your fingers in front of your face and say "do I really expect a fundamentally different approach from a politician who won his spurs in "¦. Chicago?  Do I really think the ultimate political outsider is going to be the guy who bested everyone at their own game in the Chicago political machine?"

Well, the spell will probably take a while to break in the press, if it ever does "” Time Magazine is currently considering whether it would be possible to put Obama on the cover of all 52 issues this year "” but thoughtful people already on day 1 should have evidence that things are the same as they ever were, just with better PR.   For God sakes, as his first expenditure of political capital, Obama is pushing for a trillion dollar government spending bill that is basically one big pork-fest that might make even Ted Stevens blush, a hodge-podge of every wish-list of leftish lobbyists that has been building up for eight years.  I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

It has been suggested by some that today is less a cultish coronation but a big victory party in the battle against racism.  Well, I am certainly willing to accept it on those terms.  I have been arguing for years that it is time to declare victory on the worst aspects of race and gender discrimination, and move on to problems of interest to all races (like individual freedom or giving kids options to escape crappy public schools).   Unfortunately, I fear that too many folks in power are dependent on the race/gender/class wars continuing, so you and I may think we are declaring victory, but those with power over our lives have not.

In any number of posts, I warned that, based on past precedent, Presidents almost never roll back executive power, even if they promised to do so in the election campaign.  For example, I wrote on innauguration day this year:

...thoughtful people already on day 1 should have evidence that things are the same as they ever were, just with better PR.   For God sakes, as his first expenditure of political capital, Obama is pushing for a trillion dollar government spending bill that is basically one big pork-fest that might make even Ted Stevens blush, a hodge-podge of every wish-list of leftish lobbyists that has been building up for eight years.  I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this.  It seems that creeping executive power is a lot more worrisome when someone else is in power.

Radley Balko writes:

My own hunch is that presidents try to keep campaign promises that expand the government and their own power, and either back down from or are unwilling to expend much capital on promises that make government smaller and more accountable, thus limiting their own power.

Looking over PolitiFact's report card on Obama's campaign promises, that seems to be about right thus far. By my count (and some of this is certainly subjective) of the of the 31 promises the site says Obama has kept thus far, 20 in some way grow or expand the federal government. Just six make the government smaller, more transparent, or more accountable. The remaining five have no effect, or amount to a wash.

Of the six campaign promises PolitiFact says Obama has unquestionably broken, five would have limited his own power, provided tax breaks, or provided more accountability and transparency to the federal government. One was mostly symbolic (recognizing the Armenian genocide). So far, he hasn't broken a single promise that would grow or expand the government, though he has compromised on a few, and many have been stalled.

I have often criticized any number of recent Presidential administrations, in particular the Bush administration, for their various power grabs that attack the spirit, if not the letter, of Constitutional separation of powers.

One issue I have never really thought about, mainly because I really can't stand thinking about political strategy and am not very good at it, is just how bad use of executive power can be in carrying off an ideological agenda.

I think many folks have become aware that there is a short list of executive orders that are the routine first step of any administration when the party in office has shifted.  I can't remember them all -- they include some abortion funding issues and some union rules issues -- but Obama, like Bush before him and Clinton before him, issued them as one of his first acts.  Most of these aren't world-shattering issues, and they act as a quick sop to the ideological base, but the whole point of the rule of law in this country was that we didn't have to do the constant bob-and-weave people had to go through with Medieval kings or modern banana republics to adjust to the new ruling clan.

But it is pretty clear that the Republican's strategy over the last 8 years of letting Bush take the heat on tough ideological issues by trying to tackle them with executive action rather than legislation is a complete flop.   Much of the Republican Congress probably agreed with Bush's environmental regulation philosophies, but were content to let Bush try to implement them through regulatory policy (or non-policy) rather than legislation.   Now, though, much of Bush's position has been thrown out in court, and the remainder will likely be changed by Obama.

Seriously, looking back on it, did the Republican Congress between the '01 tax cuts and prescription drug disaster and when they were tossed in '06 leave any kind of legislative footprint behind?  Jeez, Republicans are whining now about all kinds of stuff, but what were they doing for 6 years?  Offshore drilling is a classic example.  They whined about the Democrats blocking more drilling last year, but what did they do about it the previous years when they controlled Congress and the White House?  I honestly think they were waiting for Bush to do something by executive order and take away any political responsibility off their shoulders.

Radley Balko is justifiably happy that Obama is chucking the the theory that the President can detain people indefinitely at his whim:

President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects. With the stroke of his pen, he effectively declared an end to the "war on terror," as President George W. Bush had defined it, signaling to the world that the reach of the U.S. government in battling its enemies will not be limitless.While Obama says he has no plans to diminish counterterrorism operations abroad, the notion that a president can circumvent long-standing U.S. laws simply by declaring war was halted by executive order in the Oval Office.

Key components of the secret structure developed under Bush are being swept away: The military's Guantanamo Bay, Cuba, facility, where the rights of habeas corpus and due process had been denied detainees, will close, and the CIA is now prohibited from maintaining its own overseas prisons. And in a broad swipe at the Bush administration's lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after Sept. 11, 2001.

It's worth emphasizing again here these steps Obama's taking effectively limit his own power. That's extraordinary.

But here is my cynical side coming out:  It is easy to limit your own power in areas in which you have no desire to exercise it.  Obama is doing great work here that needs to be done, but he is also not really giving up anything he cares to have.  I could just as easily have written a story that said that Bush took brave steps to limit the power of the executive branch over CO2 emissions.

When Bush wanted to listen to phone conversations or to hold people incommunicado for years, he could have gone to Congress to seek such authority, or used the authority he already had but which was (rightly) limited by oversight from the judiciary.  But terrorism was "too important" to bother with that stuff, so he did it by executive fiat.

So the real test, in my mind, is to see Obama's attitude towards executive power in an area where he really wants to get something done, and might not have the patience to wait for Congress.   Obama is a different kind of guy, right?  He would never expand executive power and short-circuit Congress just because he was in the hurry for something, would he?

President Barack Obama signed an executive order to force the auto industry to produce more fuel-efficient cars, an act he says will begin a new era of global leadership for the U.S.

I thought this was particularly clever rhetoric for continuing to gut the 10th Ammendment.

"The days of Washington dragging its heals are over," he declared, saying it should be easier for states to adopt tough fuel-efficiency rules. "My administration will not deny facts; we will be guided by them. We cannot afford to pass the buck or pass the burden onto the states."

We are not grabbing power here in Washington, we are just relieving them of the burden of governing themselves.

Update: By the way, I do believe the current version of the CAFE legislation gives the NHTSA and the EPA the ability to change the standard, so technically the administration has this power.  However, typically changes to regulations must go through a public disclosure, comment, and review process, with a number of key requirements like economic impact studies.  The reasons for these requirements is to try to offset (imprefectly) the enormous power Congress is delegating to the Administration in these regulations.

Per Wikipedia (yeah, take it with a grain of salt) the CAFE legislation says:

Congress specifies that CAFE standards must be set at the "maximum feasible level" given consideration for

1. technological feasibility;
2. economic practicality;
3. effect of other standards on fuel economy; and
4. need of the nation to conserve energy.

Obama, impatient with following the process (where have we seen that before?) cuts through it with an executive order.   No one has gone through this process of making these tradeoffs -- Obama and a few advisors picked a number and ordered it into being.  By doing so, he is in effect violating the spirit if not the actual text of the legislation in which the power to set CAFE standards was delegated to the agencies under him.

Well, I was cynical about Obama giving up executive power, as politicians generally have a different view of runaway government power once that power is in their hands.  But some good stuff has come out already:

• Obama rescinded Bush's 2001 executive order allowing former presidents, vice presidents, and their heirs to claim executive privilege in determining which of their records get released to the public. Even better, he's requiring the signature of both his White House counsel and the attorney general before he can classify a document under executive privilege.
• Issued a memorandum to all executive agencies asking them to come up with a new plan for open government and complying with FOIA requests. He is also instructing three top officials, including the U.S. attorney general, to come up with a new policy on open government. The new policy would replace the existing policy, infamously set by a 2001 memo from John Ashcroft that instructed federal agencies to essentially to take every measure they can to refuse FOIA requests.
• Put a freeze on the salaries of top White House aides.
• Suspended the military trials at Gitmo, and is expected to issue an order closing Gitmo as soon as today.

That's a really good start.  I am now more optimistic that we might actually get some rollbacks of government power vis a vis FISA and the Patriot Act.  The Fourth Amendment took a serious beating since 9/11, and hopefully it is not too late to roll back the precedents set over the last 7 years.

Of course, all of these activities are reductions of executive power in areas in policy areas Obama wants to undo actions by GWB.  The real test will be to see his approach to executive power in areas where he wants to go past GWB.  A good example is carbon dioxide regulation, where it has been suggested Obama should take the issue out of Congress's hands and establish a regulatory regime by executive fiat.

While we are on wish lists, I have often told my Republican friends that a fault of Bush's that did not get enough press was his apparent lack of willingness to provide adult supervision to Congress.  Congress needs to be shamed occasionally to stay on task and not drift off into feeding fests at the trough, and only the President can really do this.  Bush did not have the desire to face down a Republican Congress, and probably had lost all his credibility by the time he faced a Democratic Congress.  Harry Reid and Nancy Pelosi will take a lot of baby-sitting to avoid veering off into their worst behaviors, and it will be interesting to see if Obama will do so.  I think it is in his interest to do so.  Already, the ridiculous stimulus bill Pelosi has crafted threatens to embarrass him.  If I were Obama, I would be furious.  He expends his early political capital for a stimulus bill, and gets a total porked-up lobbyist's-fantasy from the House.

I said it a couple of weeks ago:

Economists will be poking through this situation years from now, and may well find the bunkers
empty of WMD's.  Another trillion dollar commitment and unprecedented
expansion of executive power ramrodded on the back of fear mongering
and chicken-little crisis declaration.

And even before that on October 1

Well, they're picking through the bunkers now, and its not at all clear the threat was what it was portrayed to be.  The Fed of Minneapolis debunks four myths (pdf)

Myth 1. Bank lending to non…nancial corporations and individuals has declined sharply.
Myth 2. Interbank lending is essentially nonexistent.
Myth 3. Commercial paper issuance by non…nancial corporations has declined sharply and rates have risen to unprecedented levels.
Myth 4. Banks play a large role in channeling funds from savers to borrowers.

Apparently, others are starting to make the WMD comparison.

A couple of examples below.  First, sure looks like all the inter-bank lending has dried up:

Yep, and no one is lending to Main Street businesses either, so we better do something!

Just to avoid confusion, that upward spike began in September, well before the Lehman bankruptcy.  Similar stories in commercial paper, consumer lending, leases, etc.  See the whole thing.

I am on vacation this week, so blogging will be light.  Just as well, as I have absolutely no idea where to begin with the Federal plan to semi-nationalize the banking industry.  I fear that the Bush administration has done it to us again.  Economists will be poking through this situation years from now, and may well find the bunkers empty of WMD's.  Another trillion dollar commitment and unprecedented expansion of executive power ramrodded on the back of fear mongering and chicken-little crisis declaration.  Henry Paulson screams to the world that the sky is falling, and then wonders why he can't stop the panicked stampede.  The Fed breaks the discount window wide open and promises to lend and recieve near infinite amounts of bank funds, and then wonders why banks have stopped lending to each other and only will do business with the Fed.

There are two America's:  The one that is trying to steal my freedom from the top down (wiretaps, proscutorial abuse, expanding executive power) and the one that is trying to steel freedom from the bottom up.  Reason, as quote by TJIC, has a nice piece on one of the bottom-up fascists:

Amid the hustle and bustle of downtown Los Angeles, there exists
another world, an underground world of illicit trade in - not drugs or
sex - but bacon-wrapped hot dogs. Street vendors may sell you an
illegal bacon dog, but hardly anyone will talk about it, for fear of
being hassled, shut down or worse. Our camera caught it on tape. One
minute bacon dogs are sold in plain view, the next minute cops have
confiscated carts, and ordered the dogs dumped into the trash.

Elizabeth Palacios is one of the few vendors willing to speak
publicly. "Doing bacon is illegal," she explains. Problem is customers
love bacon, and Palacios says she loses business if she doesn't give
them the bacon they demand. "Bacon is a potentially hazardous food,"
says Terrence Powell of the LA County Health Department. Continue
selling bacon dogs without county-approved equipment and you risk fines
and jail time.

Palacios knows all about that. She spent 45 days in the slammer for selling bacon dogs,
and with the lost time from work, fines, and attorney's fees, she fears
she might lose the house that bacon dogs helped buy. She must provide
for her family, but remains trapped between government regulations and
consumer demand. Customers don't care about safety codes, says
Palacios. "They just want the bacon."

TJIC, as he often does, captures a number of the best comments.  The full reason video is below:

Regular readers know that I am a critic of the Bush administration for any number of failings, perhaps most importantly its flaunting of the separation of powers and its attempts to avoid scrutiny by hiding behind the war and calls on patriotism.  In this post, aimed mostly at the drift in the Republican party, I threw in this  observation:

in response to a Republican President thought to be over-reaching,
secretive, and overly fond of executive power, they seem ready to
nominate Hillary Clinton, who may be one of the few people in the
country more secretive and power-hungry.  Anyone remember how she
conducted her infamous health care task force?  I seem to remember she
pioneered many of the practices for which Democrats tried to impeach
Dick Cheney this week.

Q&O links an article from the National Review which goes further on Hillary:

If grumbling about a basketball story seems excessive, it's also
typical of the Clinton media machine. Reporters who have covered the
hyper-vigilant campaign say that no detail or editorial spin is too
minor to draw a rebuke. Even seasoned political journalists describe
reporting on Hillary as a torturous experience. Though few dare offer
specifics for the record--"They're too smart," one furtively confides.
"They'll figure out who I am"--privately, they recount excruciating
battles to secure basic facts. Innocent queries are met with deep
suspicion. Only surgically precise questioning yields relevant answers.
Hillary's aides don't hesitate to use access as a blunt instrument, as
when they killed off a negative GQ story on the campaign by
threatening to stop cooperating with a separate Bill Clinton story the
magazine had in the works. Reporters' jabs and errors are long
remembered, and no hour is too odd for an angry phone call. Clinton
aides are especially swift to bypass reporters and complain to top
editors. "They're frightening!" says one reporter who has covered
Clinton. "They don't see [reporting] as a healthy part of the process.
They view this as a ruthless kill-or-be-killed game."...

It's enough to make you suspect that breeding fear and paranoia within
the press corps is itself part of the Clinton campaign's strategy. And,
if that sounds familiar, it may be because the Clinton machine, say
reporters and pro-Hillary Democrats, is emulating nothing less than the
model of the Bush White House, which has treated the press with thinly
veiled contempt and minimal cooperation. "The Bush administration
changed the rules," as one scribe puts it--and the Clintonites like the
way they look. (To be sure, no one accuses the Clinton team of outright
lying to the press, as the Bushies have done, or of crossing other
ethical lines. And reporters say other press shops--notably those of
Rudy Giuliani and John Edwards--are also highly combative.)

The only quibble I have is the distinction that Hillary is not lying, but Bush is.  That seems, at least to this libertarian, to be a silly statement.  There is no reason to believe Hillary is any more or less mendacious than GWB.  Though I will say, with the right audience, Hillary can be surprisingly honest and open about her aims:

10/11/2007:  "I have a million ideas. The country can't afford them all."

June, 2004:  "We're going to take things away from you on behalf of the common
good," she told San Franciscans in June 2004. As first lady, she said:
"We must stop thinking of the individual and start thinking about what
is best for society."

I almost never ever post on politics and political races, but I had an interesting conversation the other day.  As a secular libertarian, I find no one (beyond Ron Paul) among the Republican candidates even the least bit interesting.  I trust none of them to pursue free market and small government principals, and several, including McCain, Giuliani, and Huckabee, have track records of large government intrusiveness.

What I found interesting was a conversation with a friend of mine who self-identifies as a Christian conservative  (yes, I know it is out of vogue, but it is perfectly possible to have quality friendships with people of different political stripes, particularly considering that I am married to a New England liberal Democrat).  My Christian conservative friend said he found no Republican he was really interested in voting for.

I find it interesting that the Republicans (again with the exception of Ron Paul, who I think they would like to disavow) unable to field a candidate that appeals to either of its traditional constituencies.  It strikes me the party is heading back to its roots in the 1970s in the Nixon-Rockefeller days.  Yuk.

Update:  Which isn't to necessarily say the Democrats have everything figured out.  For example, in response to a Republican President thought to be over-reaching, secretive, and overly fond of executive power, they seem ready to nominate Hillary Clinton, who may be one of the few people in the country more secretive and power-hungry.  Anyone remember how she conducted her infamous health care task force?  I seem to remember she pioneered many of the practices for which Democrats tried to impeach Dick Cheney this week.

I almost never ever post on politics and political races, but I had an interesting conversation the other day.  As a secular libertarian, I find no one (beyond Ron Paul) among the Republican candidates even the least bit interesting.  I trust none of them to pursue free market and small government principals, and several, including McCain, Giuliani, and Huckabee, have track records of large government intrusiveness.

What I found interesting was a conversation with a friend of mine who self-identifies as a Christian conservative  (yes, I know it is out of vogue, but it is perfectly possible to have quality friendships with people of different political stripes, particularly considering that I am married to a New England liberal Democrat).  My Christian conservative friend said he found no Republican he was really interested in voting for.

I find it interesting that the Republicans (again with the exception of Ron Paul, who I think they would like to disavow) unable to field a candidate that appeals to either of its traditional constituencies.  It strikes me the party is heading back to its roots in the 1970s in the Nixon-Rockefeller days.  Yuk.

Update:  Which isn't to necessarily say the Democrats have everything figured out.  For example, in response to a Republican President thought to be over-reaching, secretive, and overly fond of executive power, they seem ready to nominate Hillary Clinton, who may be one of the few people in the country more secretive and power-hungry.  Anyone remember how she conducted her infamous health care task force?  I seem to remember she pioneered many of the practices for which Democrats tried to impeach Dick Cheney this week.

The separation of powers concept, so fundamental in our Constitution to checking government power grabs, seems to be on life support.  The reason I say this is that for separation of powers to work, each branch of the government has to, you know, actually monitor and try to check power grabs in other branches.   What I see today are three branches that have kind of reached some sort of peace treaty, agreeing to let the others run amok as long as it is allowed to do so itself.  To support this hypothesis, I make the following observations:

• The executive branch continues to try to accumulate power, adding "indefinite detentions without trial" and "warrantless searches" to its arsenal, justifying nearly anything with the blanket argument that "the world is different post 9/11."  The Supreme Court has generally proved itself unwilling to do anything about it, which should be all the more the case in the future since both Bush appointees seem very comfortable with accretions of executive power.  Even the opposition party, though willing to make verbal assaults, seems unwilling to take any real measures.

• Congress seems perfectly willing to spend their time wallowing in pork and dreaming up new earmarks to satisfy prominent donors.  The current budgeting process is a fiasco, and the executive branch seems unwilling to exercise any adult supervision, including an incredible record of zero vetos is nearly 6 years.  Congress has shied away from working on any issues of any seriousness (e.g. Social Security) which is perhaps good for us, since their only attempt to fix runaway spending in Medicare resulted in them adding an expensive and ridiculously complex drug benefit.  Congress and the President conspired to pass the egregious McCain-Feingold speech limit bill, which effectively helps protect the job of Congressional incumbents and protects them from 3rd party criticism when approaching an election.

• With Congress unwilling to address any legislative issues of substance, the judiciary seems perfectly happy to take their place, creating new law in hundreds of areas.  And Congress seems willing to let them.  It can only be dangerous for a Congressperson to deal with hot-button issues like gay marriage and abortion - its much better to let the judiciary do it for you.  Often Congressman can get the outcomes they want, without actually having to create a legislative record on the issue that might come up in a campaign.

The whole situation depresses me just writing about it.

Via Jonathon Turley in the USAToday (via Cathy Young)

Despite my agreement with Alito on many issues,
I believe that he would be a dangerous addition to the court in already
dangerous times for our constitutional system. Alito's cases reveal an
almost reflexive vote in favor of government, a preference based not on
some overriding principle but an overriding party.

In my years as an academic and a litigator, I
have rarely seen the equal of Alito's bias in favor of the government.
To put it bluntly, when it comes to reviewing government abuse, Samuel
Alito is an empty robe.

It is at times like this that I find the confirmation process's excessive fixation on abortion to be tremendously irritating.  Alito's judicial philosophy vis a vis executive power is much, much more relevant to the nation and the vitality of the Constitution than is his opinions on Roe v. Wade, particularly given that every President tries to increase the power of the executive branch, but they tend to be most successful in times of war and crisis, which is exactly the times the Court needs to be most vigilant about chopping them back (this is my executive branch as kudzu political theory).  And don't even get me started on Joe Biden using 27 of his 30 minutes to listen to himself talk, further demonstrating that he learned how to ask questions from Sean Hannity.

Update:  I should have linked to this past post, which humorously explains the fixation on abortion.