Archive for the 'Presidency' Category

Call Obama’s Bluff

Posted by on Feb 26 2013 | Government Largess, obama, PPC, Presidency

Obama is trying to spook state governors about budget cuts that could effect their states. I say call his bluff. I also say no one can notice my double chin thanks to my manly beard. Watch this 9news piece and see if you can catch my chins.

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After the Election Hangover

Posted by on Nov 13 2012 | congress, Politics, PPC, Presidency

I’m sorry that it has taken me nearly a week to share a few of my thoughts about the election, but I have only been recently released from suicide watch. As a complete aside, the Hemlock Society sadly only assists the terminally ill, not those who desire end-of-life services due to politics. Apparently, you have go to the Republican Party for that.

Anyway, thanks to a fair amount of self-medication via scotch and Little Debbie’s Swiss Rolls, I am able to communicate today. Like you I am baffled over the course of human events in our nation conceived in Liberty.

I know there will be months of second guessing about what went wrong and what should have been done. So here’s my quick take, and keep in mind it might just be the scotch talking.

I believe the elections of 2012 sadly proves the very premise from which we work at the Independence Institute – the right loses because they are all-consumed with the “next election.” The left wins because they are consumed with the next decade. And they have been consumed for decades.

The left wins because they control the narrative. They control the narrative because they invest their resources, their years, and a ton of our money, to build systems, organizations and institutions that tell the stories they want voters in the middle to believe. Capitalism hurts the country. Hydraulic fracturing is an environmental danger. There is a war against women. Blah, blah, blah…

As all of us divorced men know, WE HAVE NEVER made any mistakes in our past decisions. So that of course gives me the authority to say what everyone else did wrong in this election. So here we go. The right’s donors invest too often in personality, not political infrastructure. They invest for the short term.

It is so disheartening to think of the billions of dollars and countless man-hours that were wasted in vien to elect Mitt Romney and take back the senate. Only two states switched away from Obama compared to four years ago, and we lost, not gained, in the senate. Imagine if only that amount were put towards building a permanent infrastructure to leap-frog the Left. Imagine if that amount were spent years ago instead of this year. Imagine what could have been.

I find this somewhat baffling. People on the right understand the importance of investing in and building institutions that will pay dividends in the long term future. As you know I lost my daughter and my son has Down Syndrome. He has needed ten surgeries in his eight years of life. If it weren’t for the long-term thinking donors who gave so much so many years ago to build the Children’s Hospital, I would have lost another child. These donors know the importance of building churches, universities, efforts to end sickness and so much more where the real pay-off might not be seen in their lifetimes.

But in the realm of politics, many on the right can’t see farther than about a year. The money goes to candidates or their support systems. By then it is usually too late. The left has built unions, think tanks, media operations, opposition research groups, voter registration machines, legal harassment firms and so much more.

The sex-appeal and excitement for elections years and personalities drives our side. Winning drives their side.

Until we can better convince investors and activists that the fight for liberty, the fight against the constant allure of socialism’s “guaranteed outcomes,” is a long term, never-ending battle. But it is one we most certainly can win.

We at Independence have worked for nearly three decades on that very premise. We know that ideas have the greatest consequences. Politicians come and go, but the principles of liberty are everlasting. It is our goal to market our ideals far better than the left sells their guaranteed outcomes.

We have created a great start. And this election only serves to tell us we are on the right track. Now we need to do so much more.

The path to fixing Washington is to first fix Colorado. We are more determined and committed to that goal than ever in our 27 years.

Let’s shake off this awful hangover and get to it. Be our partner in this fight.

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After the election: What now?

Posted by on Nov 09 2012 | Commerce Clause, congress, Constitutional Amendments, Constitutional History, Constitutional Law, Growth of Government, Health Care, health control law, obama, obamacare, Presidency, Tenth Amendment, U.S. Constitution, U.S. Constitution

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

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How Syria is Iran’s route to the sea

Posted by on Oct 24 2012 | Counter-Terrorism Policy, Iran, Israel, National Security, Presidency, Press, Terrorism

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated PressThe GuardianThe Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? …when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now Iran is keen on getting nuclear weapons. The first ones Iran will get will be large and delicate. The only feasible intercontinental delivery system will be a ship. A ship that is accustomed to moving illicit goods.

Stratfor, which is an outstanding site for the collection and analysis open source intelligence, has the following reports involving Syria/Iran sea-related collaboration: An Iranian ship at the Syrian port of Tartus (also spelled “Tartous”) picked up Syrian oil for delivery to China, to evade the economic sanctions on Syria (Mar. 30, 2012). Iran warships docked at the port of Latakia in early 2012 (Feb. 18, 2012), and in early 2011 (Feb. 22, 2011; Feb. 24, 2011). During the 2011 visit, the Iranian navy’s commander, Admiral Habibollah Sayyari, announced that Iran was ready to help Syria improve its port facilities, and to collaborate on technical projects with Syria. (Feb. 26, 2011). (All the Stratfor articles are behind a paywall.)

So in short, Syria is Iran’s route for the projection into the Mediterranean Sea (and from there, the Atlantic Ocean) of conventional naval power, and, perhaps soon, of nuclear weaponry.

Post-debate, the Washington Post‘s Glenn Kessler at least made a start towards a serious factcheck of the Romney quote. He published an updated and condensed version of a longer piece he had written last April about Romney’s repeated use of the phrase.

In the April piece, Kessler wondered what difference Syria made, since Iranian ships can enter the Mediterranean via the Suez Canal. True, but anyone with even a mild knowledge of naval affairs could explain the utility of a Mediterranean port, as a opposed to a Persian Gulf port, for ships operating in the Mediterranean. In April and in October, Kessler wrote:

We also checked with other experts, many of whom confessed to being puzzled by Romney’s comments.  [DK: Kessler should have named all the "other" experts, and should also have included the explanation of at least one of the experts who was not among the "many" were were confused.] Tehran certainly uses Syria to supply the militant groups Hezbollah and Hamas, but that has little to do with the water. The relationship with Syria could also effectively allow Iran to project its power to the Mediterranean and the border with Israel. But does that really mean, “a route to the sea”?

The last two sentences are really the buried lede of the story: Romney is raising a very important issue (Syria as the base for the projection of Iranian naval power), but Romney is not explaining himself in a manner which the less well-informed members of the public (e.g., the sources linked in the 1st paragraph of this post) can understand. If Romney were a better communicator, he would have laid out the facts in greater detail, as Ronald Reagan and Winston Churchill did in their own time, when warning their countrymen about the military dangers of aggressive totalitarian regimes. As Kessler wrote in April, “If Romney is elected president, he will quickly learn that words have consequences. Precision in language is especially important in diplomacy, and here Romney used a phrase that left people befuddled as to his intent and meaning, especially since he did not even make a distinction between the Mediterranean and Arabian seas.”

If you’re a journalist or a commentator, there’s no reason be ashamed just because a Washington Post writer reported a story much better than you did. But when you find yourself being outclassed by Yahoo! Answers, perhaps it’s time to rethink your assumptions that you’re much smarter and better informed than Mitt Romney.

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Stephen Moore On Devil’s Advocate Tonight

Posted by on Oct 05 2012 | Idiot Box (TV Show), obama, Presidency

Friday night means the Independence Institute’s tv show, Devil’s Advocate. Tonight, host Jon Caldara is joined by Wall Street Journal columnist Stephen Moore for a look at the presidential race thus far and what we can expect going into November. That’s tonight at 8:30PM on Colorado Public Television 12.

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Next step: Repeal the individual mandate because it is unconstitutional

Posted by on Jun 29 2012 | congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, supreme court, Taxes, Taxing and Spending Clause, Uncategorized

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

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Is President Obama’s assertion of executive privilege valid?

Posted by on Jun 20 2012 | congress, Executive Privilege, guns, obama, Presidency

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.

Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.

The particular issues in the contempt vote, and therefore in President Obama’s assertion of Executive Privilege involve:

1. Retaliation against the whistleblowers.

2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.

While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

So here are my questions for the commenters: Is President’s assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.

UPDATE: I will be discussing today’s developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.

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President Obama versus the Constitution

Posted by on Apr 02 2012 | congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, obama, Presidency, Public Opinion, supreme court, Uncategorized, War on Terror

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

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