Respectfully disagreeing: the Republican letter on Iran was proper and needed

March 10, 2015

Turn almost anywhere in D.C. and you’ll find someone screaming in outrage about something: taxes, health care, regulations of one sort or another, the secret Lizard People conspiracy to control our government, whatever. The latest chorus of outrage has arisen because of an open letter to the Iranian government written by Senator Cotton (R-AR) and 46 others among his Republican colleagues. The senators wanted to remind Iran that the US Senate has a constitutional role to play regarding any treaty with Tehran and that no agreement would be lasting without the Senate’s consent. You can read the letter here, but below is a key excerpt:

First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.

Second, the offices of our Constitution have different characteristics. For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms. As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then—perhaps decades.

In other words, “there’s no real deal unless it contains provisions we approve of.”

This started a firestorm of criticism from the Left, with perhaps the most shrill, hysteria-laden attack coming on the cover of the New York Daily News:

Hyperbole much?

Hyperbole much?

Graphic via Hot Air

(Aside: “treason” is a word thrown around far too easily in recent years. By the Left and the Right.)

And the reaction from the White House and their allies in Congress wasn’t much farther behind:

Congressional Democrats joined the White House in denouncing the letter, with Sen. Dick Durbin (D-Ill.) calling it “a cynical effort by Republican Senators to undermine sensitive international negotiations — it weakens America’s hand and highlights our political divisions to the rest of the world.”

(…)

Sen. Barbara Boxer (D-Calif.), a member of the Senate Foreign Relations Committee, accused Republicans of trying to “sabotage” the nuclear talks.

“This bizarre, inappropriate letter is a desperate ploy to scuttle a comprehensive agreement and the chance for a peaceful resolution, which is in the best interests of the United States, Israel and the world,” Boxer said in a statement.

Well, if anyone understands “bizarre,” it’s Barbara Boxer.

I’ll leave it to Noah Rothman to deal with the rank hypocrisy of the Democrats’ statements (here’s one huge example from The Federalist), but there were criticisms, or at least sad regret, from some on the Right, too. First, while Byron York at the Washington Examiner acknowledges that Obama started this mess, he still sees little good in the issuance of the Cotton letter:

It should go without saying that the reason Republicans are doing these things is because they are deeply concerned about a possible Iran deal. But another reason they’re acting is because they can. On Iran and before that on immigration, healthcare, and other matters, Obama has pushed his executive authority beyond its proper limits, on the flimsy pretense that he is entitled to act unilaterally if Congress does not pass bills he wants. Could anyone fail to anticipate that in response Congress would stretch its own authority, too?

(…)

Of course, it is still a bad thing. It is not good to invite a foreign leader to address Congress in a campaign against the U.S. president. It is not good to undermine the president’s authority to conduct foreign policy. But it’s not a good thing to undermine Congress’ authority to make laws, either. And to threaten even more undermining in the future, as Obama has done.

Meanwhile, at Hot Air, my friend Jazz Shaw thinks the letter is too much, too soon:

The whole point is that the system seems to be breaking down, and this letter is yet another example of the United States airing its dirty laundry for the rest of the world to see. Under ideal conditions, this would all be hammered out in private between Obama and the Congress and he could then send Kerry to negotiate something they could all live with. That didn’t happen either, so this is clearly not a case of all the fault being on one side of the aisle. In fact, when the President turned around and said this wasn’t really a treaty so he could do what he liked, that was possibly an even worse sin than what Tom Cotton and his cosigners have done. Trying to change the nature of a major deal between nations by calling it an agreement rather than a treaty is just a dodge, and not a particularly artful one at that.

Still, I find myself disagreeing with Tom Cotton (who I admire very much, and have since I interviewed him during the election) and wishing that this letter hadn’t been written. If there had to be an official response, a resolution of disapproval of the negotiations (or later, of the deal itself) could have been passed on the Senate floor. That would have at least kept the communications in house, rather than having the Legislative branch dive directly into the mix with Iran. The system of how things need to work to keep Washington functional continues to break down, and this letter did nothing to help with that challenge.

Both writers express an understandable wish for comity between the parties and branches when facing a dangerous foe. And many of us are old enough to remember when such a period existed when politics (mostly) “stopped at the water’s edge” — that era from World War II to the fall of the USSR when  there was a general consensus on foreign affairs between the parties in the face of threats from first the Nazis and then the Communists.

But that period slowly came to an end with two developments: first the rise of the anti-war socialist and communist-sympathizing Left and their liberal dupes to domination of the Democratic Party after 1968. They simply did not and do not share the foreign policy assumptions of the older, New Deal liberals who formed half of the consensus.

The other event was the end of the Cold War and the collapse of the Soviet Union.  With the deadly enemy gone, the pressure to unite against the outsider was lifted. Hence it became easier to take politics beyond the water’s edge.

And, while I opened this by saying I respectfully disagree, York and Shaw (and others) have a valid point: It *is* regrettable that there is no consensus anymore on our foreign affairs (1), and it is a shame that oru squabbles have to be carried out in public. Ours is a largely informal system in which policy makers would (should) come to a consensus based on agreement on broad principles.

But, for now at least, that agreement is gone, and one side pushes so far beyond the bounds of what has been acceptable that the other feels forced to retaliate.

Yet I still disagree that Senator Cotton and his colleagues should not have done this. As York himself notes, the administration and congressional  Democrats have shown little but contempt for constitutional norms and bounds since Obama was inaugurated. And in the face of the many slights against the American settlement perpetrated by the Obama White House and colluded in by the congressional Democrats, congressional Republicans have been nearly supine. The latest, the failure to stop Obama’s illegal, unconstitutional amnesty plan via the DHS budget, was a humiliating disgrace that could well encourage other adventures in petty tyranny on the president’s part. And it was just one moment, albeit egregious, in the long march of Congress surrendering more and more of its authority to the Executive since progressivism took hold.

Congress needed to push back to start reclaiming its role in our system, and this letter represents a good start. And it was better to do it now, while the agreement is still being worked out, than wait until it could be presented as “take it or leave it, and the consequences of rejection be on your shoulders.” Far from interfering in foreign affairs, this represents the Senate majority asserting its proper constitutional role and demanding it be honored. If Senator Cotton is representative of the newer generation of senators, then I have hope some balance will be restored.

While it’s regrettable that the fight has taken public, it’s much more heartening to see the legislature assert itself as Madison intended, jealously guarding its interest.

Footnote:
(1) Kind of hard to have one when one side still believes in a muscular, exceptional America as a force for good in the world, and the other sees American power as the problem and chooses national decline.

 


What the hell is wrong with New Jersey prosecutors? #2A

February 18, 2015
Citizen! Have I got a job for you!

Good job, New Jersey!

Here’s the situation in brief: Gordon van Gilder is a 72-year old retired English teacher who lives in New Jersey. He also happens to have a hobby collecting 18th century memorabilia: coins, furniture, etc. Along came the opportunity to buy an antique 18th-century pistol. No bullets or powder, just the pistol. He and a friend drove to Pennsylvania to get it and then, on the way back, they were stopped by New Jersey police. Mr. Van Gilder cooperatively told the officer of the weapon in the glove box, and the officer promptly wanted to arrest him for violating New Jersey gun laws — for an antique pistol that wasn’t working. A superior talked some sense into the officer and told him to return the firearm and let the two men go. You’d think that would be the end of it, right?

Per Charles Cooke, think again:

The officer did as he was told, and gave the pistol back. The next morning, however, he came back — “with three cars and three or four sheriffs.” Van Gilders says, “He told me, ‘I should have arrested you last night.’” So he did. “They led me away in handcuffs” and, at the station, “chained me by my hands and feet to a cold stainless-steel bench.”

“I’ve never been handcuffed in my life — or arrested, even,” Van Gilder explains. “I was embarrassed and ashamed. The only prisoner there was myself: a 72-year-old English teacher. I was really ashamed.”

Before long, Van Gilder had been charged and the gun had been taken away for “ballistics testing,” almost certainly never to be returned. (That the department believes that a ballistics test on a flintlock pistol can be useful should give you some indication of who we’re dealing with here.) “They’ve angered me,” Van Gilder concedes. “But technically, by New Jersey’s law, the officer was probably right.”

The officer may have been right, but the law that officious jerk was enforcing is an ass. Now Mr. Van Gilder is facing a possible ten-year sentence with a minimum of 3.5 years without parole.

Remember the Obama administration’s risible claim that it had “prosecutorial discretion” to not enforce immigration law over a whole class of people? That was bunk, but here is a case where discretion should have been applied by by New Jersey authorities to refuse to prosecute a case that was clearly never contemplated under the state’s gun laws. Leave aside the fact that those laws violate Mr. Van Gilder’s Second Amendment rights, the very idea of humiliating him and then facing him with mandatory jail time over an antique pistol the federal government doesn’t even regard as a weapon is infuriating.

More Cooke:

Earlier this week, the lawyers’ group blog Popehat noted caustically that “none of the New Jersey founders who ratified the Constitution when this pistol was crafted would have questioned the man’s right to keep it.” This is indisputably true. Indeed, the news that an arthritic septuagenarian retiree had been tied to a bench for a non-violent crime would presumably have shocked them to the core. But, for all that their words live on, those leaders are dead, and we must look now to the ones that we have today. Where the hell are they? Where are the voices crying out for a change in the rules, and for a restoration of basic American liberties? And above all, where is the fearless Chris Christie — a man who seems to want to be president of the United States — when one of his constituents is being harassed by the state?

That’s a darned fine question, and I’d be very interested in would-be President Christie’s answer.

PS: As Cooke’s editors point out, you can help out with Mr. Van Gilder’s defense here.

PPS: And this isn’t the first time New Jersey prosecutors have tried to curb-stomp the Second Amendment.


#Immigration: Congress *can* defund Obama’s executive order

November 26, 2014

Obamacaligula

Apparently Caesar Obama can decree all he wants, but getting the money to pay for his tyranny is another matter altogether:

The letter, requested by a Republican lawmaker, addressed an issue raised by House Appropriations Chairman Hal Rogers (R-KY), who has claimed it is impossible for Republicans to defund Obama’s amnesty since the agency in charge of issuing the work permits, the United Stated Citizenship and Immigration Services office, is almost entirely funded by user fees.

The [Congressional Research Service] found that Rogers’ claim was completely false. From the letter:

“In light of Congress’s constitutional power over the purse, the Supreme Court has recognized that “Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative statutes.” Where Congress has done so, “an agency is not free simply to disregard statutory responsibilities. Therefore, if a statute were enacted which prohibited appropriated funds from being used for some specified purposes, then the relevant funds would be unavailable to be obligated or expended for those purposes.

A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds.”

This makes perfect sense constitutionally and legally: the agency is a creation of Congress, which has told it to raise money for its operations from user fees. It would be risible to say that Congress somehow lacked the power to tell that same agency how to spend the money Congress authorized it to collect in the first place.

The Republican leadership is discussing a long-term funding resolution for most of the government, and a short-term one for the Immigration Service, so that the new Republican legislature could then order it not to spend any money to enforce Obama’s order. This would be a first good step toward reining in Obama’s usurping presidency.

Let’s hope they have the courage to do it.


#Immigration: Going off script, Obama admits he usurped power

November 25, 2014
"Caesar Obama"

“Caesar Obama”

(Photo credit: @exjon)

Dealing with radical immigration activists while in Chicago, President Obama spoke off the cuff, once again proving he should never leave the safety of his teleprompter:

“I have heard you, but you have got to listen to me, too. All right? And I understand you may disagree, I understand you may disagree. But we have got to be able to talk honestly about these issues, all right?”

“Now, you’re absolutely right that there have been significant numbers of deportations. That’s true. But what you are not paying attention to is the fact that I just took an action to change the law.

That may be the first time he’s spoken the truth in years. To quote Article 1 of the United States Constitution:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

That includes the power to “change the law.” How odd that there’s no mention of that being a presidential power…

All across America, state attorney generals about to file suit are saying a quiet but heartfelt “Thank you, sir,” for the gift he just gave them.


#Ferguson and the racists of the Congressional Black Caucus

November 25, 2014
Justice is individual, not social

Equal justice for all

Ran across something disgusting last night while reading about the riots that erupted in the wake of the grand jury decision not to indict a White police officer for killing a Black teen:

On Monday Rep. Marcia Fudge (D-OH) called the grand jury’s decision not to indict officer Darren Wilson in the shooting death of Michael Brown a “miscarriage of justice.”

In a statement released through the Congressional Black Caucus, which she chairs, Fudge said the decision not to indict Wilson “is a slap in the face to Americans nationwide who continue to hope and believe that justice will prevail.”

“This decision seems to underscore an unwritten rule that Black lives hold no value; that you may kill Black men in this country without consequences or repercussions,” Fudge said. “This is a frightening narrative for every parent and guardian of Black and brown children, and another setback for race relations in America.”

“My heart goes out to Michael Brown’s loved ones, and to the loved ones of all the Michael Browns we have buried in this country,” Fudge said.

The news of the grand jury’s decision came out between 6 and 7 PM PST. The time stamp on the PJMedia article behind the link is 11:23 PM PST, so 4-5 hours after the news broke, Rep. Fudge was rushing out her statement. There is no way she (or, more likely, her staff) had any chance to read the transcripts of the proceedings to consider the same evidence the jury took weeks to hear and mull over. And yet, that same night, she is sure that there had been a miscarriage of justice and this was due to some sort of “open season” rule on Blacks. (Read the rest of the piece to see how her soon-to-be successor is of the same mind.)

The congresswoman’s opinion seems to be a common one among the membership of the CBC, in fact. That same evening, my representative (hah!) tweeted this:

Why “disturbed?” The grand jury did its duty: consider the evidence and decide if there was probable cause that the suspect committed a crime. They found the evidence showed otherwise, and so they refused to return an indictment. Does Congresswoman Bass, who also could not have considered the evidence presented, know better than the grand jurors who spent weeks on the case? Is not Officer Wilson entitled to the same 5th Amendment protections as any other American — including a member of Congress, who has sworn to uphold the Constitution of the Untied States?

The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

The Constitution does not consider the grand jury to be a rubber stamp. It is a core protection. It stands as the buffer between the government prosecutor and the citizen-suspect; it safeguards Americans, who are presumed innocent, from being subjected to the anxiety, infamy and expense of a trial unless there is probable cause to believe they have committed a serious offense.

But Representatives Fudge and Bass, and perhaps many in the CBC, really don’t care a whit about constitutional protections in this case. Not when the officer is White and the victim is Black. Were the roles reversed, would they be so quick to issue statements claiming a “miscarriage of justice?”

Call me cynic, but I don’t think so.

Now, don’t get me wrong. There have been all too many incidents of police brutality towards Blacks; it continues to this day, though I think not to the extent the race-grievance hustlers would have us believe. And that sad experience can understandably make Blacks suspicious of authorities or of ever getting justice from the system. When abuse happens, corrective action needs to be taken, including criminal legal proceedings.

But, in the specific case of Mike Brown, Officer Wilson, and a terrible day in Ferguson, Missouri, the prosecutor took the unusual step of presenting all his evidence (1) to the grand jury. Not just enough to indict a ham sandwich, but everything. And then he asked the grand jury, as representatives of the community, to decide if there was probable cause to take Officer Wilson to trial. Bear in mind that a grand jury operates on a lower burden of proof, “probable cause,” than a trial jury, which needs proof “beyond a reasonable doubt” to convict.

The grand jury worked on this case for weeks and still refused to indict. Representative Fudge notwithstanding, justice did prevail, because indicting someone without probable cause to think he had committed a crime would be the height of injustice.

Yet Fudge (who speaks for the CBC) and Bass found it “deeply disturbing” and a “miscarriage of justice” that no indictment was issued.

You know what I find disturbing? That Members of Congress, who swear an oath to protect and defend the Constitution, could so easily forget or ignore their duties. That members of an ethnic group that’s been subjected to terrible bigotry and awful treatment for centuries would themselves rush to demand what would be little better than a show trial, based just on the skin colors of the policeman and the victim.

They could have set examples for everyone by calling for calm and supporting the rule of law and the colorblind rights of all, perhaps even by asking people to wait and read the evidence for themselves.

But, no. They had to impugn the integrity of the legal process and feed the grievance beast, in their own petty way enabling the agitators trying to generate riots in Ferguson and elsewhere.

All because the cop was White and the victim Black.

You know what that’s called.

Footnote:
(1) Really, read the linked article. It’s an important education into how prosecutors and grand juries work.

UPDATE: Eugene Volokh — “The grand jury process was fair.”


#ISIS: Rand Paul’s declaration of war

November 24, 2014
"Of course you know, this means war."

“Of course you know, this means war.”

One of the criticisms of President Obama’s conduct of our foreign affairs (and of our domestic affairs, frankly) is that he disregards statutes and the provisions of the Constitution whenever it is convenient for him to do so. This extends to the war powers inherent in the presidency under Article II. Both in Libya and, now, in Syria and Iraq in the fight against ISIS, Obama has been accused of acting without authorization from Congress, either under the specific War Powers Act of 1973 or Article I of the Constitution, the latter of which grants Congress the sole power to declare war. With regard to ISIS, Obama has claimed authorization under the existing Authorization to Use Military Force (AUMF) against al Qaeda, since ISIS is an al Qaeda “spawn.” Not surprisingly, critics call that a stretch.

One of the critics is Senator Rand Paul (R-KY), who has often accused Obama of acting unconstitutionally. At PJM, Bridget Johnson reports that Paul has plans to assert Congress’ authority over the war-power by introducing a bill to declare war on ISIS:

The resolution would kill the 2002 Iraq Authorization for Use of Military Force and put a one-year expiration date on the 2001 Afghanistan AUMF. The administration has been leaning upon those war on terror statutes to conduct current operations against ISIS in Iraq and Syria.

It notes that “the organization referring to itself as the Islamic State has declared war on the United States and its allies” and “presents a clear and present danger to United States diplomatic facilities in the region, including our embassy in Baghdad, Iraq.”

“The state of war between the United States and the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS), which has been thrust upon the United States, is hereby formally declared pursuant to Article I, section 8, clause 11, of the United States Constitution,” the resolution states.

“The President is hereby authorized and directed to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS).”

The bill also contains specific limitations on the authorization to use force, namely action is to be limited to ISIS and its “affiliates,” and specifies that ground troops can only be used to protect Americans and American facilities, and in certain limited offensive operations.

I have my quibbles with this proposal (1), but overall I support the idea. Obama has created a constitutional crisis by pushing the limits of the presidency’s powers past their breaking point. We’re running the risk of passively acquiescing to our transformation from a republic with separate, co-equal branches of government, each with their own powers, to more of a strongman presidential model, such as in France (2).

To prevent that, Congress needs to start acting to jealously guard its prerogatives and assert its status, as Madison described several times in the Federalist Papers. Senator Paul’s bill to declare war may be a good start to redressing the balance.

RELATED: Charles Cooke on why Republicans should not retaliate in kind for Obama’s usurpations. Jay Cost on the proper way to rebuke Obama. Andrew McCarthy on “President Orwell.”

Footnote:
(1) Namely that I believe US “boots on the ground” in offensive operations will be necessary to defeat the new Caliphate; the Arab forces in the area are worthless.
(2) Not that I’m implying that France is a dictatorship — far from it. But the presidency under the Gaullist system is quite a bit more powerful than the legislature.


Endorsed: Bar Obama from making his State of the Union address before Congress

November 21, 2014
The President who would be King

The President who would be King

Since it became apparent that President Obama was about to (and did, last night) usurp the legislature’s authority to write and amend our laws, Republicans and conservatives (and some liberals) have been bandying around several strategies to fight back: some form of defunding, censure, even impeachment.

Writing at Ace of Spades, Drew M. adds a symbolic but very powerful idea: do not let Obama give his State of the Union address before the joint houses of Congress.

There’s one idea I’d like to add that is in many ways symbolic but that would focus the nation on the seriousness of this problem, do not invite Obama to address a joint session of Congress to deliver the State of the Union address.

The Constitution simply requires that “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.” Nothing requires that he do so in person. The modern in person State of The Union dates back to Woodrow Wilson but Truman, Eisenhower and Nixon all gave written reports as was the custom from Thomas Jefferson to Wilson.

And Presidents don’t simply show up whenever they please to address the Congress, they must be formally invited. That’s where Boehner and McConnell can strike a blow for the legislature…simply don’t invite him.

Yesterday, Boehner said, “The president had said before that he’s not king and he’s not an emperor,” Boehner says. “But he’s sure acting like one.”

There’s a reason for the reference to the behavior of kings: it’s a part of our history, dating back at least to the crises that gave rise to the English Civil War. In 1642, King Charles I attempted to usurp the powers of the House of Commons by barging in with soldiers to arrest five members. In commemoration of this, the House of Commons slams the doors in the face of Black Rod when he comes to summon them to hear the Queen’s Speech. Nowadays, this is just a ceremonial tradition, a reminder of the Commons’ independence from the Crown.

It is also an echo of a very real crisis.

We are England’s heirs, and Congress is facing its own crisis with an arrogant, usurping Executive. Let Speaker Boehner and (soon to be) Majority Leader McConnell reach deep back into our history and, along with more substantive actions, assert the legislature’s rights as a co-equal branch of government. Refuse our modern King Charles the stage his ego so desperately needs (1).

It’s time to bar the doors.

via Gabriel Malor

Footnote:
(1) Come on, you know Obama’s ego is so brittle that this would drive him nuts. As a narcissist, he craves a stage from which to lecture his inferiors.


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