Balkinization  

Saturday, April 03, 2004

JB

Bush Agrees to Release Clinton Files

The Seattle Times reports:

In its second high- profile turnabout of the week, the Bush administration agreed yesterday to give the independent commission investigating the Sept. 11 attacks full access to the papers of former President Clinton.

The decision came after commission officials pressed the White House to turn over thousands of pages of documents that had been shipped from the former president's archives for review by the commission.

The White House received 11,000 pages of Clinton documents, but turned over less than 25 percent of them to the commission despite repeated requests for all of them, according to commission officials and a top aide to the former president.

The decision to release all the Clinton papers came two days after President Bush announced that White House national-security adviser Condoleezza Rice would testify publicly before the commission.


Do you think the Administration understands how bad this sort of thing looks? They are doing everything in their power to make it appear as if they have something to hide.


JB

Ruling Through The Administrative State

This New York Times article on how the Bush Administration has fundamentally reshaped environmental policy shows why it matters so greatly who controls the White House.

A very large number of government policies, in areas ranging from environment, to labor, to consumer protection are shaped below the radar screen by administrative decisionmaking. Administrative agencies, called upon to carry out statutory schemes that often have fairly open-ended directives, can issue regulations that have the force of law. Presidents can staff these agencies with political appointees to carry out the President's ideological agenda. Although Congress can vote to overturn these regulations, there are simply too many for Congress to exercise effective oversight in many cases, and, in any case, the President can veto any such attempts if he likes what his political appointees are doing. In this way the President, if he is so determined, and if he stocks the administrative agencies with ideological loyalists, can have enormous impact on federal law in a relatively short period of time.

During the Reagan Administration, and later, the Clinton Administration, presidents used administrative regulations to achieve goals that could not be achieved directly because Congress was controlled by members of the opposite party. Indeed, in Clinton's case, after 1994, the President, far from working under the radar screen, actively trumpeted the work of administrative agencies as his own in a series of pronouncements in order to show that he could govern without the cooperation of the Republican-controlled Congress.

In the Bush Administration, of course, one party controls all the branches of government. And yet the Administration is still making full use of its powers to reshape law according to its ideological agenda through the administrative state. The reason is that most administrative regulation escapes public comment unless, as in this New York Times story, it is specifically mentioned and critiqued. Congress might balk at the most radical reforms, and many Republicans will not want to be on record as voting for changes that could get them into trouble with swing voters, especially when reforms can be achieved through new administrative regulations (or effective repeal of older regulations). Hence using the administrative state to change environmental law allows the President to get rid of regulations he does not like and impose his ideological vision on a wide array of areas of regulation while protecting members of the President's own party in Congress from political criticism.

In four year's time the Administration has strongly reshaped environmental law, weakening protections against pollution. One only wonders what it would do given a free hand for eight years.




Thursday, April 01, 2004

JB

Hiding Clinton's Files

The New York Times reports that the Bush Administration has withheld approximately 75 percent of the 10,800 pages from President Clinton's files that the former president had agreed to hand over to the 9-11 Commission.

These files contain sensitive information about Al Qaeda and the Clinton Administration's policies towards terrorism, which are certainly relevant to the 9-11 Commission's work. Why is the Bush White House stonewalling on these documents? There are many possible reasons, but one particularly worrisome reason might be that these documents tend to show that the Clinton Administration was far more serious about combatting terrorism than the Bush Administration proved to be.


JB

Flip Flop

Terry Neal provides a list of Bush's changes in position:

The Bush campaign has received a lot of mileage out of characterizing Kerry as a serial flip-flopper. The campaign is already spending millions of dollars on television and radio ads pillorying Kerry's record and tagging him as someone who can't make up his mind. That line of attack has helped chip away at Kerry's early lead in the polls.

But by making this such an issue, Bush draws attention to his own record.

The Associated Press recently compiled a list of recent Bush flip-flops:

•The president initially argued that a federal Department of Homeland Security wasn't needed, but then devised a plan to create one.

•He resisted a commission to investigate Iraq intelligence failures, but then relented.

•He opposed, and then supported, a two-month extension of the 9/11 commission's work, after the panel said protracted disputes over access to White House documents left too little time.

•He initially said any access to the president by the commission would be limited to just one hour but relaxed the limit earlier this month.

His flip-flops take on added weight because he himself has upped the ante. The underlying theme of every Bush campaign is that he is a man of honor, while his opponent is a liar or a hypocrite. Of course, Bush doesn't use those exact words. But make no mistake, that's what he meant when in the 2000 Republican primary he described Sen. John McCain (Ariz.) as a politician who "says one thing and does another" and characterized Vice President Gore as a politician who will "say anything to get elected."

Kerry campaign spokesman David Wade said the Bush administration has "this nasty habit of flip-flopping the only time political pressure is applied, any time they see that their own positions are untenable. It's incredible how transparent their flip-flops are... The great irony is that this administration makes these baseless attacks when in fact not only is George Bush a walking contradiction, but clearly he is the candidate in the race that has the known credibility problem."

Bush campaign spokesman Terry Holt defended the president, drawing a distinction between Bush's and Kerry's reversals.

"The president is very consistent on points of principle and as regards to the foundational policies that he is advocating," Holt said. "John Kerry has a pattern and a record of contradiction. Rather than consistency as a rule, inconsistency is more the pattern."

Holt said of the decisions to create the 9/11 commission and to allow Rice to testify: "Those are process decisions and not an issue of to tax or not to tax. And that's a huge difference."

But the liberal Center for American Progress has compiled an even longer list of Bush flip-flops, including reversals on "foundational issues," as Holt would say -- positions such as steel tariffs, gay marriage, campaign finance reform and mediation of the Israeli-Palestinian conflict.


People often confuse arrogance with steadfastness and principle. They are not the same thing. Bush is a very able politician with excellent political instincts. He changes his positions in order to win votes, he shifts with the political winds when necessary. Then he simply denies that he has made a change or ever been wrong about anything, assuming that in most cases the press will be too disorganized or too dependent to call his bluff. His success has come from making people believe that he is a straight shooter and acts on principle rather than political considerations. His bullying attitude plays into this image. But it is a manufactured image, not a reality, and three years into his presidency, his ability to preserve this image is being severely tested.


JB

Prosecution by the Dashboard Light

Matthew Yglesias notes this story from Virginia in which a 21-year-old woman was arrested for performing oral sex on a man in a parked car at 3 a.m. Both were charged with crimes against nature, which includes oral and anal intercourse; the man pled to a charge of indecent exposure of the genitals in public.

The woman claims that prosecution under the Virginia crimes against nature statute is unconstitutional after Lawrence v. Texas. She is correct. Lawrence holds, at a minimum, that both heterosexual and homosexual sodomy cannot be criminalized. Having sex in public is a different matter; Lawrence notes that it does not decide that question. The woman could be prosecuted for a statute that made it a crime to have sex in public. However, Virginia's crimes against nature statute does not punish people for performing sex acts in public; it punishes all sodomy, even in the privacy of one's own home. And Virginia's indecent exposure law probably does not reach what the woman did (she did not expose her genitals in public), although it presumably would reach what the man did.

The D.A. in this case is passing the buck, saying that it was up to the officer to make the call on whether to prosecute and therefore the case must go to trial. This is hogwash. If the D.A. believes that a vice statute is unconstitutional, she can exercise discretion, save the state and the defendant time and money, and simply drop the charges. Indeed, prosecutors have some discretion to choose not to prosecute even when a statute is fully constitutional. That is why prosecutions for sodomy were rare even when such statutes were on the books.

Nothing in Lawrence, as I read it, prohibits states from making it a crime to have sex in public. If Virginia wants to punish people for that, they should pass a law that makes that conduct a crime. But this case should be dismissed.



UPDATE: Several readers have pointed out that the woman was *receiving* oral sex from the man, in which case she could possibly be charged with indecent exposure. However, the man, not the woman, actually pled to indecent exposure; although we don't know all the facts, perhaps he was also naked at the time.



Wednesday, March 31, 2004

JB

Divide Iraq Up?

Bruce Fein argues that "The United States should declare its post-Saddam nation-building enterprise a failure. It should begin immediately to arrange the partition of Iraq by regional self-determination plebiscites."

Although I have to agree with Fein that the Administration's post-war policies have not been a great success, I don't think that the solution is to divide Iraq up into separate regions. For one thing, the Turks would never stand for an independent Kurdish government. For another, there are significant numbers of Shiite Muslims in the Sunni-dominated regions. Any attempt to divide Iraq up into different countries is likely to destabilize the situation further.


JB

Justice Department to Intervene in Oklahoma Dispute about Headscarves

CNN reports:

The Justice Department announced Tuesday the government's civil rights lawyers have jumped into a legal case to support a Muslim girl's right to wear a head scarf in a public school.

Assistant Attorney General for Civil Rights Alex Acosta said government lawyers would support 11-year-old Nashala Hearn, a sixth-grade student who has sued the Muskogee, Oklahoma, Public School District for ordering her to remove her head scarf, or hijab, because it violated the dress code of the Benjamin Franklin Science Academy, which she attended.

The girl continued to wear her hijab to school and was subsequently suspended twice for doing so.


I discussed this story back in October here.

I applaud the Justice Department, and Attorney General Ashcroft for intervening in this case. According to the complaint, the school's dress code allows students to wear some things on their heads but not others. It does not specifically mention the hijab, the traditional Muslim headcovering for women, but school officials held that it fell within the policy. The school's justification for the policy is that the ban on headgear is designed to prevent gang activity.

If these facts are correct, there is a good chance that the school will lose, as they should. The limited nature of the school's policy demonstrates that it is not completely opposed to all head coverings, and the hijab has no relationship to gang activity. So the policy may violate the equal protection of the laws because it discriminates between permitted secular reasons and religious reasons for wearing headgear. There would be a more difficult federal case if no headgear was permitted under any circumstances, but there still might be an argument that the policy violates Oklahoma state law.


JB

The Best Laid Medicare Plans

The Miami Herald explains why the Administration's Medicare reforms didn't quite go as expected. (Link via Healthlawblog):

Enactment of a sweeping Medicare reform law last year was supposed to be the crowning achievement of President Bush's "compassionate conservatism" as he readied himself for re-election.

By providing a federally subsidized prescription-drug benefit for senior citizens, albeit a limited one, administration officials felt they usurped a major issue from the Democrats and cut into Democratic support among seniors age 65 and over -- an especially important voting bloc in key battleground states such as Florida.

But less than four months after he signed it into law on Dec. 8, Bush's Medicare-reform dream has turned into a nightmare and a potential drag on his bid for re-election.

-- The Bush administration deliberately didn't tell Congress that the measure could cost more than $100 billion more than advertised.

-- House Republican leaders abused House rules to push the measure to a narrow victory. There are also allegations of threats and bribes that are under investigation.

-- The Bush administration spent millions of taxpayer dollars on public service TV ads touting the Medicare reform law that look suspiciously like Bush campaign commercials. Those, too, are now under investigation.

-- Polls show that a majority of Americans don't like the Medicare reforms.

"It's something that's eating away at the credibility of the administration in an election year on a bill that he (Bush) thought was a building block for his re-election," said Stephen Hess, a political analyst for the Brookings Institution, a centrist think tank, and a former aide to President Eisenhower.


I wouldn't go so far as to call the bill a "nightmare" for the Republican Party. It simply hasn't turned out to be the clear winner that people expected. The problem is that the bill doesn't seem to mesh well with the Republican self-image of low taxes and low domestic spending, which or course, is why in the past the Democrats have usually been the party that pushed for new domestic expenditure programs. (Defense expenditures, are, of course, another matter.). The Administration had to hide the costs of the bill from the members of its own party, and then twist arms to get the final couple of Republican votes. The result was a distinct sense that something fishy was going on in the bill. The fake journalism segments and the disguised campaign ads also added to the notion that the Administration wasn't being entirely honest.

This was a wasted opportunity for the Republicans, who could have lived off of the glow of this new entitlement program for some time.



Tuesday, March 30, 2004

JB

Stuart Buck Hospitalized

All our prayers go out for fellow blogger Stuart Buck, whose wife Farah reports that he has been hospitalized with a stroke.

The blogosphere is more than a debating society. It is a community, full of flesh and blood people who we come to care about the more we engage with them. Here's hoping you are on the mend soon, Stuart, and once again filling the pages of your blog with your own distinctive take on the world.


JB

Rice Will Testify in Public and Under Oath

Sunday:

Nothing would be better, from my point of view, than to be able to testify,” Rice told Ed Bradley of CBS’s “60 Minutes.” “I would really like to do that. But there is an important principle involved here: It is a long- standing principle that sitting national security advisers do not testify before the Congress.

Today:

Principle? What principle? Come on, this Administration doesn't boldly assert constitutional principles and then abandon them when the poll numbers start to drop. You must have us confused with another Administration.

Here's the official explanation:

White House legal counsel Alberto Gonzales has sent a letter to the commission stating that Rice is prepared to testify publicly as long as the administration receives assurances from the panel that this is not precedent setting, the official said.

That is, there is a principle, but we can violate it when it's convenient for us as long as everybody promises that nobody will use our inconsistency against us later when it becomes convenient to invoke the principle again.

Now that's the sort of constitutional principle I think everybody can get behind.

Frankly, despite these assurances (which apparently, the White House demands must be in writing), I don't see how Rice's testimony can *avoid* becoming a precedent. Much of the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice (as opposed to judicial precedents). Whatever the Administration says, people will remember that Rice testified and the circumstances under which she did so. Saying that this won't be a precedent is a little like the Supreme Court in Bush v. Gore saying that its decision was limited to the specific facts of that case. It's not the sort of statement that induces much confidence in the principled nature of the decision.

The White House handled this badly from the beginning. It would have been far better for the White House to have taken the position early on that it would allow a national security advisor to testify, but only under the most extreme or important circumstances. Avoiding a decline in poll numbers is not such a circumstance, while getting to the truth about one of the most important events in recent American history is. Under that line of reasoning, however, the Administration should have consented to Rice's testimony a long time ago. Now it looks as if the only reason why the Administration is acquiescing is a concern about the upcoming election, a concern which should be completely irrelevant (and inappropriate) from a constitutional standpoint. By stonewalling the way it has, the Administration has set a precedent, and of the wrong kind.



Monday, March 29, 2004

JB

More Fun With The New Iraqi Constitution

The New York Times reports:

American soldiers shut down a popular Baghdad newspaper on Sunday and tightened chains across the doors after the occupation authorities accused it of printing lies that incited violence.

Thousands of outraged Iraqis protested the closing as an act of American hypocrisy, laying bare the hostility many feel toward the United States a year after the invasion that toppled Saddam Hussein.


From the Interim Iraqi Constitution:
Article 13.
(B) The right of free expression shall be protected.
(C) The right of free peaceable assembly and the right to join associations freely, as well as the right to form and join unions and political parties freely, in accordance with the law, shall be guaranteed.
. . .
(F) Each Iraqi has the right to freedom of thought, conscience, and religious belief and practice. Coercion in such matters shall be prohibited.

Fortunately for the Americans, the new Iraqi Constitution they insisted upon doesn't apply to them, and, moreover, it doesn't take effect for several months!

Isn't constitutional law fun?



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