Published in Congress

Looking for a cheap lunch at a favorite Vietnamese restaurant, got an education instead.

The Heritage Foundation has put on-line its Guide to the Constitution, co-edited by David Forte and Matthew Spalding. This is a line-by-line commentary with major essays by significant legal scholars. Heritage does terrific work with its instant digests on contemporary policy issues, but this is something different, yet relevant to policy debates.

Take this analysis of the first line of Article II of the Constitution, on the nature and scope of executive power, "the vesting clause." There's even a teacher's companion guide, besides the essay by UVA law professor Sai Prakash and a brief (and diverse) bibliography of legal scholarship.

Or consider co-editor Forte's thoughts on the commerce clause, now at the heart of the Obamacare case, to be decided by the Court this term. Are you clear on the meaning of "to ... regulate commerce ... among the several states"? And so it goes, line by line, through the whole Constitution.

The achievement deserves favorable comparison with the best encyclopaedias of legal thought, such as the grand project of the late Leonard Levy. And besides Heritage's is on-line, will be constantly updated (not a living Constitution, but a lively commentary) and free.

The unethical investigation (and subsequent 2008 conviction) of the late Senator Ted Stevens (R-Alaska) for alleged ethics violations reveals a crisis in democratic government: When Department of Justice investigators influence elections--in this case, one that gave Senate Democrats a veto-proof majority--they are showing themselves to be the rulers they have in fact become.

In many reapportionment schemes, the legislators pick their constitutents. In the Stevens investigation, where the judge held government lawyers in contempt after the trial, the bureaucrats in effect knocked off a Republican incumbent, who lost by fewer than 4,000 votes a week after the trial. The court-appointed counsel concluded that the prosecution withheld potentially exonerating evidence from the defense. Even Eric Holder had to discipline the lawyers, with one committing suicide. (It should be noted that a Republican Administration might not have been able to control their own staff.)

We misheard Rush on the 30 year-old law student demanding free contraception, via Obamacare mandate.

UPDATE: Now he apologizes.

of those polled disapprove of Congress, according to a recent poll. But surely some poll has broken down the stats in following ways:  Do you disapprove of Congress because it is too Republican, too Democrat, blocking Obama, ignoring the deficit, etc. Those numbers should be added to the total who approve of Congress, perhaps considerably improving the figures.  (Occasionally there are polls showing disapproval of the Tea Party, etc.) Those results would be more important for the congressional elections, though of course reapportionment slashes the effects of general disapproval. Has anyone drilled down to get these numbers?

Has anyone polled Congress on the approval/disapproval numbers they give to themselves? Bet it's not far from the public figures.

Public approval for Congress dips into the single digits.  I'm not surprised for the reason often given--people (especially in gerrymandered districts) like their own crook--and distrust all the others.  Hence, a better measure of how people will vote would be reflected in, e.g., whether they think Obamacare should be repealed. 

But I also raise the question whether the members of Congress would give any higher rating of their own institution. Somehow I doubt it.  The separation of powers and the bicameral Congress create such frustrations.  But there is only one President.

I kind of like the goats, especially those on the Sage of Mt. Airy's farm, where I blog from today.  The Sage dissects  Dr. Charles Krauthammer (a former Hubert Humphrey speechwriter, btw) on the debt deal. 

To begin, removing "loopholes" has only lately, and conveniently, become a demand of the American Left.  The fact is, various loopholes, alongside a progressive income tax scheme with multiple and increasing marginal rates have historically been the bedrock of liberal tax policy....

With all due respect to Dr. Krauthammer, the only sure solution to the debt crisis is the very real prospect of electoral defeat by the Democrats, not contracting clever deals with them.

RTWT.  And scroll down to read the Sage beating up on many conservatives who caved to liberals and shunned the Tea Party on the debt negotiations.

My esteemed colleague Pete, on the debt fracas, below: "the whole controversy was ugly and at most minimally productive."  To the contrary, I think this was the most important constitutional debate in memory (other than Obamacare, though I admit I am getting old and forgetful).  I wonder whether the Tea Party critics have ever purchased a car.  Do they pay the sticker price?  They used the power they had to educate the people on our disastrous situation.  Would the public be more aware of the crisis had a routine raise been voted through?

My high esteem for Senator Coburn has increased.  He exposed Grover Norquist's odd accounting on what constitutes a tax increase:  Cutting a subsidy (ethanol) would be a tax increase, in Norquist's view.  If that's the case, then reform without a tax increase is impossible.  To be fair, a cut in the subsidy would hurt the industry being subsidized and cost jobs, etc.  The press coverage of the new law emphasizes the temporary harm to the economy, caused by a cut in public spending, though the reforms will have a good long-term effect. 

As with Obamacare, the debt ceiling bill exposed Washington's ways.  What shocks us about Washington procedure is in fact routine.  Congress passes laws that no one reads through and that grant the real law-making power to bureaucracies.  That is the problem.  That is what the Tea Party, for whatever naievete it exhibits, has exposed:  Our routines are rotten.

Everyone is noting that Vice President Biden called the Tea Party "terrorists," but I think Representative Doyle's comment is more illuminating:

"We have negotiated with terrorists," an angry Doyle said, according to sources in the room. "This small group of terrorists have made it impossible to spend any money."

That says wonders about how Congressional Democrats see their job.

The greatest good we can do our country is to heal it's party divisions & make them one people. I do not speak of their leaders who are incurable, but of the honest and well-intentioned body of the people. I consider the pure federalist as a republican who would prefer a somewhat stronger executive; and the republican as one more willing to trust the legislature as a broader representation of the people, and a safer deposit of power for many reasons. But both sects are republican, entitled to the confidence of their fellow citizens. Not so their quondam leaders, covering under the mask of federalism hearts devoted to monarchy. The Hamiltonians, the Essex-men, the revolutionary tories &c. They have a right to tolerance, but neither to confidence nor power. It is very important that the pure federalist and republican should see in the opinion of each other but a shade of his own, which by a union of action will be lessened by one-half: that they should see & fear the monarchist as their common enemy, on whom they should keep their eyes, but keep off their hands. (emphasis added) 

For Obama, America is great because of its moments of compromise--not for its uncompromising moments (Declaration of Independence, Civil War).  I guess Obama thinks the Compromise of 1850 (Fugitive Slave Act) is our grand model.  Reflect on his conclusion below:

America, after all, has always been a grand experiment in compromise.  As a democracy made up of every race and religion, where every belief and point of view is welcomed, we have put to the test time and again the proposition at the heart of our founding:  that out of many, we are one.  We've engaged in fierce and passionate debates about the issues of the day, but from slavery to war, from civil liberties to questions of economic justice, we have tried to live by the words that Jefferson once wrote:  "Every man cannot have his way in all things -- without this mutual disposition, we are disjointed individuals, but not a society." 

History is scattered with the stories of those who held fast to rigid ideologies and refused to listen to those who disagreed.  But those are not the Americans we remember.  We remember the Americans who put country above self, and set personal grievances aside for the greater good.  We remember the Americans who held this country together during its most difficult hours; who put aside pride and party to form a more perfect union.  

Well, out of the Compromise of 1850 we got California into the Union.

As several media sources have noted by now, Barney Frank has admitted that he helped his boyfriend get a job at Fannie Mae, the federally backed mortgage giant, which Frank, as a Congressman, would help to regulate.  A decade later, Frank would argue against the Republicans who were worried that Fannie Mae and its sister organization were making too many risky mortgates.  Frank suggested that it was prudent to roll the dice, and not crack down on risky mortgages.

Frank complans that:

"If it is (a conflict of interest), then much of Washington is involved (in conflicts)," Frank told the Herald last night. "It is a common thing in Washington for members of Congress to have spouses work for the federal government. There is no rule against it at all.

There is, of course a difference between having a family member or close friend who works somewhere in the federal government, and getting an organization over whom one has power to hire a friend. As the Boston Globe notes, at the time Frank called Fannie Mae and asked them to hire his boyfriend, he was in a position directly to help or harm Fannie Mae.

But it can be difficult to determine who is, and who is not, in a position of influence.  And Frank's larger point is correct.  Nowadays, it seems that most of our important politicians have spouses and other close relatives who are in the same business, or who stand to benefit from their actions.  That was always the case to a certain degree--just look a the Kennedys and Fitzgeralds in Massachusetts, among other cases.  But the rise of the two career couple has drawn the circle tighter.

That being the case, I suggest we regulate such nepotism (and its close associated) much more heavily.  Given the rise of the two-career couple, such regulation may very well reduce the importance of Washington, DC in American life, by making it a harder city for political couples to live in.  It just might return some political influence from the ceter to the periphery, rendering our government closer to the people.  Even if it won't make much of a difference in that regard, it would be good for the rule of law, by reducing the importance of special connections among parts of government.

Will the Dem victory in the NY 26th make the GOP retreat from Ryan?  Henry Olsen notes the loss of blue-collar voters, while a local Buffalo reporter vividly portrays the maladroit GOP contender.    

The politics of the Ryan roll-out did not boost my confidence in the possibility of its success.  Talk about the importance of "beginning a debate" is really an invitation to demagoguery, as was the case in the 26th.  Churchill said that in wartime truth needed a bodyguard of lies.  In this war the other side had the lies, while Ryan had a kind of inconvenient truth.  Simply unveiling a controversial budget plan and expecting reasonable debate to ensue is an act of self-immolation.

It looks like Senate Republicans are going to filibuster Goodwin Liu to keep him off the Bench.  Turnabout is fair play, certainly.  And precedents matter.  But I wonder whether the filibuster is proper for nominees.

The key question is when the Senate is doing its "avise and consent" role, rather than working with the other branche(s) of the Legislature to make law, is it acting in Article I or Article II.  If giving its advice and consent is not a legislative task, and if the filibuster is a legislative action, then the answer is no.

Given the precedents that exist already, it's probably too late to do anything, but I thought the question worth raising, perhaps as a matter of historical interest.

One could argue that way back at the start of Washington's first term, when the Senate kicked the President and Secretary of War out of their chamber, rather than discussing instructions for negotiations with the Creeks that set the precedent for most of what followed in that area.

Henry Olsen points out Paul Ryan's stealing of the Democratic Party issue of security (see, among other sources, FDR's 1944 SOTU).   In fighting Progressivism, we often need to turn Progressive guns against Progressivism:  capture their commanding heights and use their own weapons against them.   Leftist policies destroy Social Security, Medicare, etc.  This does not show bad faith in compromising with these New Deal policies--quite the contrary; it's part of a much larger strategy.

As bad as California is, it would be far worse without the consensus that supported the initiative and referendum measures against racial preferences, property tax hikes, and so on.  See Edward Erler's argument for using the Progressive means to conservative ends:  Keep your eye on the ball and the real enemy--the administrative state. 

We understand the argument against using public funds for private, and especially parochial, schools. But it is parents, not government, choosing where to spend the vouchers. Given that this program takes no money away from public or public charter schools; that the administration does not object to parents directing Pell grants to Notre Dame or Georgetown; and that members of the administration would never accept having to send their own children to failing schools, we don't think the argument is very persuasive. Maybe that's why an administration that promised never to let ideology trump evidence is making an exception in this case.

Cass Sunstein's After the Rights Revolution:  Reconceiving the Regulatory State is one of the most horrifying books I've ever read.  Now Administrator of the White House Office of Information and Regulatory Affairs (OMB), Sunstein has a hand in Obama's expansion and affirmation of the Administrative or Regulatory State.  He gives off the appearance of even-handedness but clearly stacks the deck in favor of willful bureaucracy and against "private rights" (that is, natural rights), for FDR and the Second Bill of Rights against the Founders' Constitution.  He advises how the bureaucracy can collude with the courts to block off protests of pesky congressmen.  Laws after all are not that specific, so the bureaucracy needs to be able to reinterpret such laws to keep up legislative intent with the times.The 1990 book is one of the greatest assaults on the rule of law in our time.

For some examples of such bureaucratic abuses, including abolition of legal rights by bureaucratic fiat, note Columbia law prof Philip Hamburger's essays on Obamacare waivers. His most recent essay is here.

See also Eric Claeys' congressional testimony (subtly pointed at Sunstein) on how regulators might be reined in, in Steve Hayward's post below.

And finally this, also from Steve, on the crony politics of the Administrative State.

The Supreme Court opinion in the Westboro Baptist Church case (the military funeral disrupters) illustrates why the First Amendment has become increasingly irrelevant to self-government.  Of course free speech is more important than ever, but the Court's majority opinion shows the divide between that fundamental constitutional principle and what has become mere First Amendment "freedom of expression."  As Justice Alito argues in his solo dissent, "Neither classic 'fighting words' nor defamatory statements are immunized when they occur in a public space, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder [the fallen Marine] any differently."  Of course, "funerals are unique events at which special protection against emotional assaults is in order."  The Justice is on his way to becoming the Justice for common decency and the friend of dogs--see his dissent in the animal cruelty case.  

The Court's appalling conclusion about free speech also reminds us of an important political issue for defenders of constitutional government.  First, Justice Alito is on the Court because conservative Republicans protested President Bush's nomination of an unqualified crony.  Second, note Justice Breyer's concurring opinion, which underlines the limits to the Court's free speech defense.  Breyer voted correctly against University of Michigan quotas in the undergraduate case, and he was the swing vote in the Texas state house Ten Commandments display case (he voted the wrong way against the Ten Commandments' posting in a court house).  For one, Clinton nominated Breyer because of the relative ease of confirmation.  Even the perception of political opposition can shape the Court and the lower courts.  Hence the need for robust, incisive argument against nominees who undermine constitutional self-government.