Balkinization  

Friday, December 08, 2006

Presidential Caesarism: the Executive versus the Bureaucracy

JB

Last night inaugurated a new lecture series at Yale, the Kronman-Postol lecture. The speaker was Gerhard Casper, President Emeritus of Stanford University, who spoke on Caesarism in Democratic Politics: Reflections on Max Weber.

Following the thesis of Weber's 1917 essay on German parliamentarianism, Casper argued that democratic politics, including American politics, has a tendency toward Caesarism. Caesarism involves the concentration of power in a charismatic executive, who is chosen by popular acclamation, and who serves until he is replaced by a new leader. As the executive's power increases, the power of the legislature, who would otherwise act as a check on the President or Prime Minister, decreases, so that it ultimately becomes supine and pliant in the hands of the leader, and fails to serve as an adequate counterweight. Casper did not describe this as an inevitability but only a tendency, if other forces did not check it.

The argument was fascinating, particularly when Casper applied it to current events and offered his assessment of the current Bush Administration. Bush's high handed policies in the War on Terror, Casper argued, were the result of a long tendency toward Presidential empowerment characteristic of democratic societies.

It was a superb lecture, but I would add a supplement. A good Weberian, I think, should also be interested in the role that the bureaucracy plays in democratic politics. It is probable, if not likely, that as the charismatic executive becomes ever stronger, he is checked not by the legislature-- which becomes increasingly incompetent to resist-- but by the bureaucracy, which grows steadily and seeks ever to maintain and extend its own power.

In the American system the bureaucracy, including the civil service, is nominally part of the Executive branch, and so the President formally controls it. (This is the claim of the "unitary Executive.") But in fact, as we have seen in the Bush Administration, much of the resistance to the president's more outrageous policies-- particularly on the environment, the war on Iraq, and torture and executive detention, has come from career civil servants in the bureaucracy. They have opposed the ideas and policies pushed forward by the President's political appointees, like David Addington and John Yoo in the context of interrogation and detention. Various military officials and state department civil servants tried unsuccessfully to resist Donald Rumsfeld's misadventures in Iraq. Similarly, career officials have opposed the Administration's views on the environment and its casual attitudes or outright disregard for scientific evidence.

This does not make the bureaucracy a hero, even though in this particular context it is performing a valuable function. It merely means that the bureaucracy offers an increasingly important countervailing force that may limit the ambitions of a Caesarist leader and his loyal minions. This countervailing force crosscuts the formal model of separation of powers in which the President controls the entire executive branch. Moreover, this countervailing tendency applies both when the leader/President is doing bad things and when he is doing good things that actually serve the public interest.

As the bureaucracy grows in power and influence, it becomes both the President's instrument for wielding his increasing power and a source of resistance to the President's Caesarist aspirations. The inevitable result is an attempt by the President to purge the bureaucracy of opponents and install more and more political appointees who are loyal to the current President and can be counted upon to restrain any future President with different political views. We have already seen this strategy in personnel decisions by the Justice Department under Attorney General Ashcroft.

In this story, the Congress plays a relatively limited role. Given its natural inefficiencies, and its potential co-optation by the President when his party controls one or both houses, Congress is easily outpaced by both the President and the bureaucracy. Hence the Congress's most important role may be acting as a limited check on both the bureaucracy and the Presidency through Congress's powers to investigate and embarrass, and its power of appropriations, which can be fine tuned to punish or regulate particular elements of the bureaucracy. In some circumstances, in fact, the Congress has far more leverage against parts of the bureaucracy than it does against the President.

This picture is quite different from the usual separation of powers that we learn in civics classes. It is not James Madison's Constitution. But it does serve to constrain power; it does harness ambition to check ambition. What remains unclear-- given the increasing Caesarism of the executive and the increasing powers of the bureaucracy-- is whether this evolving model of checks and balances will do constrain power in ways that genuinely serve the public interest.


Comments:

It seems to me that it is important to expand on why the bureaucracy is pushing back, prof Balkin mentioned it, but it deserves more attention. Of course there are bureaucrats that push back because they are appalled by decision of the president, but mostly bureaucrats push back because they are appalled by the loss of power of the bureaucrats coming from certain decisions of the president.

As an institution the bureaucracy seeks to enlarge itself and its power and is therefore a check on the president that tries to do the same.
 

It would seem worth mentioning the conventional Republican view on the bureaucracy, which is that it has been captured by and is a tool of the Democratic party. Which means that a Democratic administration would face much less opposition or checking. (Thinking back, the only determined bureaucratic opposition I recall to the Clinton administration was from the military, in the context of gay rights.)
 

Professor Balkin:

The part of your post which I find most disturbing is the unelected bureaucracy making itself unaccountable to the representatives we elected and exercising power over the People and their representatives which is nowhere found in the Constitution. This is the true caesar-ism.

There is a reason that the modern bureaucracy was not part of Madison's Constitution - Madison would have been appalled at the power given to this largely unaccountable and anti democratic 4th branch of government and a Constitution which expressly empowered such a bureaucracy would never have been enacted.
 

Two observations in response to Mr DePalma:
I applaud your clever effort to try to flip the subject by claiming it is the bureaucracy that is engaging in Caesarism, but as the Bush administration has repeatedly demonstrated, the reality is rather the opposite. Only a devotee of presidential authoritarianism would make the case that in the US the executive is empowered to engage in wholesale changes in the mission of various bureaucracies without any consultation with the electorate or Congress. As the main post suggested, the DOJ provides an example.

Second, it is specious to suggest that Madison would have opposed modern bureaucracy. Since neither modern bureaucracy or space travel existed at the time, one might as well say Madison was opposed to space travel, too.

As to the main post, I agree that bureaucracy is in a sense neutral (excepting expanding its own power). But if the US is becoming more Caesarian (and thus subject to headlong policy shifts), it seems to me that on balance a little sand in the gears would not be a bad thing. At the moment I don't think this conclusion entails the usual host of anti-democratic arguments made regarding the legal system since the bureaucracy is at bottom a creature of the executive and the legislature.
 

sparky said...

Two observations in response to Mr DePalma:
I applaud your clever effort to try to flip the subject by claiming it is the bureaucracy that is engaging in Caesarism, but as the Bush administration has repeatedly demonstrated, the reality is rather the opposite.


Caesarism in my mind is acting outside the checks and balances of our Constitution and our Republic. The bureaucracy fits that definition to a "T."

Only a devotee of presidential authoritarianism would make the case that in the US the executive is empowered to engage in wholesale changes in the mission of various bureaucracies without any consultation with the electorate or Congress.

This President has consulted with the voters twice and won both times. Nominally, the bureaucracy is part of the executive branch under the control of the President. How is it the least bit "authoritarian" for the President to run his branch?

Second, it is specious to suggest that Madison would have opposed modern bureaucracy. Since neither modern bureaucracy or space travel existed at the time, one might as well say Madison was opposed to space travel, too.

Actually a number of countries had large bureaucracies at that time. The United States did not see fit to follow that anti-democratic process. Instead, they created a federal government of limited enumerated powers.
 

I strongly suspect that we would not be having these conversations about limiting presidential power in favor of non-democratic courts and bureaucracies nor calling for an outlaw Congress to impeach the President absent evidence of any high crimes and misdemeanors were it not for the fact that the current holder of that office if George W. Bush.
 

Bart,

Any suggestions about how the US (or any other country) is supposed to get along in the modern world without a substantial bureaucracy?
 

Any suggestion on how the modern world could sustain itself without Bart?
 

I am glad JB reviews the invisible middle tier of government. Reading the remarks here, although not finding the text of prof Gerhard Casper's address online, a few parallels came to mind. In the wiretap hearings a senator of the president's party coached the attorney general to laud the institution of inspector general as an office intended to assure suppression of leaks such as the wiretap case.
In a separate similar occurrence which eventuated in favorable adjudication in the US Supreme Court in 2006, a newspaper, different from the one which published the wiretap leak, posted the full but suppressed report of career civil rights attorneys in the section of the department of justice which reviews gerrymanders in the matter of the TX redistricting. The suppressed report showed the workgroup of seasoned voter rights attorneys in DoJ had agreed unanimously that the plaintiffs were correct in depicting racial bias in the TX redistricting. This report appeared in the public domain before Scotus heard the case and Scotus eventually caused the matter to return to the southern district court for reexamination. Of course, we have completed an election cycle recently, and TX has reshaped the gerrymandered districts, though the supreme court avoided deciding the issue of whether a mid-decenium redistricting, as occurred in TX, is admissible. After the civil rights attorneys workgroup at DoJ report had leaked into the media, an internal rule was promulgated at DoJ declaring the workgroup would continue to have a part in assessing complaints such as the TX gerrymander, but the workgroup no longer in the future would be allowed to make a report. No leak.
I had to smile when congress began to consider an administration incentive to institute an inspector general office for the court itself, a proposal which had little prospect of pleasing the courts and less likelihood of passage by congress. You have to acknowledge the ingenuity of an administration which would attempt such Caesarean renovations, though.
 

Enlightened Layperson said...

Bart, Any suggestions about how the US (or any other country) is supposed to get along in the modern world without a substantial bureaucracy?

I have no problem with the size of the bureaucracy, but rather its unaccountable power.

Here are three reforms which would substantially remove that power back to the constitutional branches:

1) The bureaucracy should be stripped of rule making power, which is really an unconstitutional delegation of the legislative power of Congress. The bureaucracy should be able to study problems at the request of Congress and submit suggested statutes to Congress for their consideration. However, the final decision to enact should be that of our elected representatives in Congress.

2) The bureaucracy should be stripped of its power to adjudicate violations of rules. Rather, these matters should be submitted to Article III courts like any other civil cause of action or criminal charge.

3) The bureaucracy should be stripped of any executive power. So long as the executive is operating within the law as enacted by Congress and interpreted by the Courts, the President should have the power to order the bureaucracy to do what he wishes. If some civil servant violates an executive order, that should be grounds for termination.
 

Anne: Any suggestion on how the modern world could sustain itself without Bart?

Functionally, a discussion group (which many blogs effectively host) benefits from having a stimulator. Bart provides that for us on a good many threads. Dialectic benefits from opposition. Bart does a much better job of presenting his side than I will ever be able to do (if only because his side is so wrong ;). I've had my rows with him, but the place is arguably richer for his presence.

Bart: This is the true caesar-ism.

Dude, talk about blowing your credibility---and mine. You *do* know who Ceasar was, right? Not the guy who invented the salad. The other one. The one who's local muscle nailed up that carpenter's kid? See, the professor is saying that, similar to the way PNAC says "we're the new Rome" (paraphrased, of course) 43 is saying, "I'm the new Ceasar." Your comment here is just plain silly. And you've got replies owed on an older thread, in all fairness.

Bart: ...the President should have the power to order the bureaucracy to do what he wishes.

I was wondering where that life-sized inflatable Yoo doll had got to...

Bart: ...were it not for the fact that the current holder of that office if George W. Bush.

That's right, it's all 'cause we're such rabid Bush haters. Seriously, I'd like an answer on this one, is it remotely possible that there exists even one person who has a serious concern not with the man, Bush, but his actions, known and unknown, proved and unprovable? Because it's not really good form to write off your opponents like this; it's rude and insulting and it doesn't approach legitimate reasoning. Some of us are coming to expect more of you.

I'll be looking for your replies due elsewhere. Peace.
 

Robert Link said...

Anne: Any suggestion on how the modern world could sustain itself without Bart?

Bart does a much better job of presenting his side than I will ever be able to do (if only because his side is so wrong ;). I've had my rows with him, but the place is arguably richer for his presence.


If you keep scratching me behind the ear, I'll start purring.

In any case, I enjoy bringing my view of reality to the "reality based community." Preaching to the choir on libertarian and conservative blogs is mental masturbation and is generally boring.

Bart: This is the true caesar-ism.

You *do* know who Ceasar was, right? Not the guy who invented the salad. The other one. The one who's local muscle nailed up that carpenter's kid?


There is nothing comparable to the imperial Roman tyranny in the United States. Calling executive actions with which you do not agree "Caesarism" is in reality a high brow version of calling conservatives Nazis.

The closest thing we have to an arbitrary, unaccountable and all powerful Caesar in our government is the bureaucracy. If you doubt me, talk to someone who has been audited by the IRS, been told by an bureaucrat that they may not build their retirement home on their own property because of an "endangered" rodent, or been the subject of an abusive DOJ prosecution.

Bart: ...the President should have the power to order the bureaucracy to do what he wishes.

I was wondering where that life-sized inflatable Yoo doll had got to...


:::sigh:::

This is junior high civics. Under the Constitution, the Congress has plenary power to legislate, the Judiciary has plenary power to interpret the laws and the President has plenary power to run the executive within the law as set forth in the Constitution and under constitutionally enacted statutes.

I do not think the Congress is acting imperiously by legislating what it pleases within the Constitution. Why should I think that the President is acting imperiously running the executive within the Constitution. It is what we elected them to do.

Bart: ...were it not for the fact that the current holder of that office if George W. Bush.

That's right, it's all 'cause we're such rabid Bush haters.


I can not look into the minds of all those who argue for non-democtartic institutions over an elected President or call for Congress to impeach an elected President without high crimes or misdemeanors and know their motives. All I can do is observe whether they universally or selectively apply these proposed limits and sanctions.

If any of you who support these proposals against Mr. Bush also called for the same curbs on Mr. Clinton and for his impeachment for actual felony perjury crimes, then I can accept your principled defense of a limited executive. However, I strongly suspect that finding such even handed application of principle is unlikely.

Don't feel insulted. There are many in the GOP who selectively applied their principles to Mr. Clinton during the 90s because they disliked the way he thrashed them in elections. Partisanship is an equal opportunity vice.

Seriously, I'd like an answer on this one, is it remotely possible that there exists even one person who has a serious concern not with the man, Bush, but his actions, known and unknown, proved and unprovable?

I do not distinguish between the person of George Bush and his policies. If you argue for these limits on executive authority and impeachment of the President without high crimes and misdemeanors because of the President's political policies rather than his personality, then you are still not arguing for limitations on executive policy based on principle. Rather, you simply want to run this man out of office by any means fair or foul because you disagree with his politics.
 

Fabulous post.

As for our friend Bart:
The substantial bureaucracy has substantial power because that's what makes it an effective bureaucracy. Whether or not that power is unaccountable depends on the situation. The accountability of purse strings clearly exists, and is real, as suggested in the original post.

Bart: ...were it not for the fact that the current holder of that office if George W. Bush.

Umm, so? If the current holder was mickey mouse, and he had done the things that Bush has done, I would not like it, and I would be calling for impeachment and wondering how the limit the powers of mickey mouse. Even if his ears are cuter than GW's and he doesn't have a tendency to run every organization he works for into the ground.

Also, I don't think it's tennable to remove all rule making power of the bureaucracy. In the modern, technological world, some of the rules made by the bureaucracy are highly complex, and the result of long study and consultation. I do not think that these should be held hostage to a political process on an individual basis. For one thing, the load for congress would be outrageous, and there would be even more opportunities for intervention than there are now.

My fervent hope is that when this administration is out the door, we can re-orient the bureaucracy to some reality-based decision making.


Bart: If some civil servant violates an executive order, that should be grounds for termination.

First, that would undo any ability of the bureaucracy to limit the presidency, and that would make the presidency even stronger than it is already. Since the president has gone a long way toward limiting individual rights, repeatedly denied the existence of scientific realities, and and showered us all with a rain of fearmongering, I don't want any more power in those hands. No thank you.

Not to mention that it would be extremely difficult, because the large bureaucracy relies on a lot of expensive expertise which is difficult to replace and which basically cannot bend to every single possible political whim.
 

I wonder how many felony charges we could develop if we issued 6000 subpoenas on President Bush's administration?

You know, we might just get a chance...

and, as they say, when Clinton lied, nobody died.
 

Bart: I do not distinguish between the person of George Bush and his policies.

Generally and repeatedly this is a complaint with your comments: You don't distinguish, you clump. It's not really legitimate argumentation. It is indeed the man's policies, and the long-standing openly stated imperialistic policies of his PNAC handlers, that are the problem. You said, "I strongly suspect that we would not be having these conversations...were it not for the fact that the current holder of that office if(sic) George W. Bush." I said your ad hominem defense, "You're just Bush haters" was bogus. Above you try to disclaim your original statement. I cry foul. Anyone who instituted AUMF, H.R. 3162 (the so-called "patriot" act), the illegal and immoral occupation and invasion of our former ally the sovereign nation of Iraq, ordered illegal warrantless wiretaps of citizens, or/and the habeas busting jurisdiction stripping MCA would and should be facing the kinds of opposition your hero rightly faces.

suz: I wonder how many felony charges we could develop if we issued 6000 subpoenas on President Bush's administration?

Is that number for effect or does it reflect the wide net cast to beleaguer Bill? Either way, there's enough in the air w/r/t Bush even before the subpoenas start flying that I am more than a little amazed at the seeming confidence of his fans. On the other hand we *are* talking about the son of the man who perfected the "I may be a former chief spook but I was out of the loop on that one" defense for Iran-Contra. Maybe they're all counting on Daddy's command of the list of skeletons-in-the-closet to pull the fat out of the fire. Sadly that wouldn't surprise me in the least.
 

This comment has been removed by a blog administrator.
 

Bart: There are many in the GOP who selectively applied their principles to Mr. Clinton during the 90s because they disliked the way he thrashed them in elections. Partisanship is an equal opportunity vice.

Time for more ear-scratching. You start with a fairly open statement about less than principled action by your partisans. Good show.

You follow up with a bit of a platitude. Maybe it is an equal opportunity vice. That makes it one you willingly embrace? Or are you simply unable to break it's grip, like booze or cigarettes? "Confessions of a Former Dittohead" might be an alternative to "The Big Book" for this kind of recovery. :)
 

suz in London said...

As for our friend Bart: The substantial bureaucracy has substantial power because that's what makes it an effective bureaucracy. Whether or not that power is unaccountable depends on the situation. The accountability of purse strings clearly exists, and is real, as suggested in the original post.

A police state is an effective government as well. Government is a necessary evil, nothing more.

Our Republic was predicated on checks and balances to create a less effective government which would require a super majority or popular support to impose government power on the people.

Purse strings are of limited use in leashing our bureaucracy because the rule making process usually imposes the costs on the target group.

Bart: If some civil servant violates an executive order, that should be grounds for termination.

First, that would undo any ability of the bureaucracy to limit the presidency, and that would make the presidency even stronger than it is already.


Precisely. The bureaucracy should be completely subordinate to the elected branches of government.

Since the president has gone a long way toward limiting individual rights, repeatedly denied the existence of scientific realities, and and showered us all with a rain of fearmongering, I don't want any more power in those hands. No thank you.

Under my modest proposal above to reinstate the Constitution, the legislative rule making power would be back in the hands of Congress, not with the President or the bureaucracy.

Not to mention that it would be extremely difficult, because the large bureaucracy relies on a lot of expensive expertise which is difficult to replace...

I agree and am not suggesting that the bureaucracy give up the role of advising Congress. However, the final decision over whether to implement that advice should be with the representatives we elect.
 

Bart: Under my modest proposal above to reinstate the Constitution...

Perhaps this is meant tongue-in-cheek? Or are you running for office? I hope it's a GOP stronghold, for your sake. Meanwhile, while you're going hot and heavy on this thread I note you're still avoiding me here, where you challenged me to reply to you but then vanished. Pony up, bro.

Bart: However, the final decision over whether to implement that advice should be with the representatives we elect.

Straw man. Congress is empowered to pass laws. Some of those duly passed laws create bureaucracies and I don't recall any court holding this is not proper. The EPA, IRS, whomever else you have it in for (maybe NASA?) these bureaucracies follow their mandates. And any time Congress likes they can pass laws to eliminate, curb, or more tightly control them. No?

But, please, don't answer this one 'til you've caught up elsewhere. It's only fair.
 

Robert Link said...

Bart: There are many in the GOP who selectively applied their principles to Mr. Clinton during the 90s because they disliked the way he thrashed them in elections. Partisanship is an equal opportunity vice.

Time for more ear-scratching. You start with a fairly open statement about less than principled action by your partisans. Good show.

You follow up with a bit of a platitude. Maybe it is an equal opportunity vice. That makes it one you willingly embrace?


OK, let me tell you where I am coming from.

I am a black and white ideologue, not a partisan. I believe in absolute truth and have a low BS threshold. My philosophy is generally libertarian in domestic politics with vigorous internationalism in foreign affairs.

To this end, I vote GOP and libertarian when the GOP goes statist on me. I haven't seen a Dem I could vote for since JFK.

I will criticize anyone of either party who wants to take my money or freedom, or who wants to surrender to a foreign enemy.

I have not particularly liked either George I or George II. George I lied to me and raised taxes, so I voted libertarian. If it wasn't for George II's pretty fair war leadership and the awful alternative of Kerry, I would have voted libertarian again after Bush spent like a drunken Donkey.

On the other hand, I kept telling my GOP friends that Clinton was actually very useful because he blew with the polling winds and the winds were conservative in the 90s. The man signed off on the unfinished Reagan legacy - free trade, limiting the growth of government and actually eliminating the first entitlement program. Unfortunately, the man was also a felon who should have been impeached and convicted.

The only political pigeon hole into which I fit pretty well appears to be what Pew categorizes as a "Enterpriser," but without the partisanship and the upper middle class income. Unfortunately, we Enterprisers only make up about 10% of registered voters according to Pew. Mores the pity.

http://people-press.org/reports/display.php3?
PageID=949
 

Bart:

I have no problem with the size of the bureaucracy, but rather its unaccountable power.

Here are three reforms which would substantially remove that power back to the constitutional branches


Your proposed reforms are certainly interesting, and I would support them if I thought they were practical, but I do not.

The bureaucracy should be able to study problems at the request of Congress and submit suggested statutes to Congress for their consideration. However, the final decision to enact should be that of our elected representatives in Congress.

I would applaud this if practical, but the volume of legislating you are asking of Congress is completely unmanageable. Congress would either be reduced to a rubber stamp, or have to vastly increase its own staff (another layer of bureaucracy) to analyze the results.

The bureaucracy should be stripped of its power to adjudicate violations of rules. Rather, these matters should be submitted to Article III courts like any other civil cause of action or criminal charge.

Again, handling such a volume would require either a vast expansion of the federal courts, or some sort of streamlined procedure contrary to normal judicial practice.

So long as the executive is operating within the law as enacted by Congress and interpreted by the Courts, the President should have the power to order the bureaucracy to do what he wishes. If some civil servant violates an executive order, that should be grounds for termination.

This is problematic in two ways. First, how is the President to keep track of the whole bureaucracy. Perhaps he would need a whole new bureaucratic agency to do so.

The other problem is that there are some agencies not safe to leave in to the President's discretion, even within the law as enacted by Congress. The Federal Reserve is an obvious example -- its whole purpose is to prevent debasement of the currency by keeping the money supply out of the hands of popular government. Other executive agencies have been abused in legal but unethical ways. Nixon's IRS audits of political opponents come to mind.

The flaw in your proposals is that unaccountability is a function of size. I suspect that you might agree and say that simply proves that the federal government is too large and should be reduced. That is a different topic for a different day. I will simply say that there are some reductions you could convince me to agree to, but ultimately I do not believe it is possible to govern a modern society without a substantial bureaucracy.

The closest thing we have to an arbitrary, unaccountable and all powerful Caesar in our government is the bureaucracy. If you doubt me, talk to someone who has been audited by the IRS, been told by an bureaucrat that they may not build their retirement home on their own property because of an "endangered" rodent, or been the subject of an abusive DOJ prosecution.

At least the IRS and the EPA do not engage in indefinite detention without the opportunity to challenge the grounds or "coercive interrogation." And before you say "unlawful alien combatant," I will say "Jose Padilla."
 

Enlightened Layperson said...

Bart: The bureaucracy should be able to study problems at the request of Congress and submit suggested statutes to Congress for their consideration. However, the final decision to enact should be that of our elected representatives in Congress.

I would applaud this if practical, but the volume of legislating you are asking of Congress is completely unmanageable. Congress would either be reduced to a rubber stamp, or have to vastly increase its own staff (another layer of bureaucracy) to analyze the results.


Exactly! It one of my purposes to significantly reduce the amount of law being enacted every year.

Bart: The bureaucracy should be stripped of its power to adjudicate violations of rules. Rather, these matters should be submitted to Article III courts like any other civil cause of action or criminal charge.

Again, handling such a volume would require either a vast expansion of the federal courts, or some sort of streamlined procedure contrary to normal judicial practice.


I agree. It would require an expansion of Article III courts and probably the creation of some specialty courts to adjudicate highly technical matters.

Bart: So long as the executive is operating within the law as enacted by Congress and interpreted by the Courts, the President should have the power to order the bureaucracy to do what he wishes. If some civil servant violates an executive order, that should be grounds for termination.

This is problematic in two ways. First, how is the President to keep track of the whole bureaucracy. Perhaps he would need a whole new bureaucratic agency to do so.


As with any large company, a CEO relies upon his chain of command.

The other problem is that there are some agencies not safe to leave in to the President's discretion, even within the law as enacted by Congress. The Federal Reserve is an obvious example -- its whole purpose is to prevent debasement of the currency by keeping the money supply out of the hands of popular government.

I do not worship at the alter of the Fed or Greenspan. Greenspan started the last recession through overly restrictive monetary policy.

If Congress wants to specify certain restrictions on monetary policy at the Fed, they have that power under Article I.

Other executive agencies have been abused in legal but unethical ways. Nixon's IRS audits of political opponents come to mind.

Another good reason to limit the size and power of government. The fact that Nixon (not to mention Clinton) was able to use the bureaucracy to attack political opponents means that the bureaucracy is more of a sword against freedom than a shield protecting it.
 

Bart: OK, let me tell you where I am coming from.

Which you then did, rather starkly. Bravo.

Bart: I believe in absolute truth and have a low BS threshold.

On balance with the rest of your post I should know better than to respond. But this really begs for it. Knowing reality to be full color a man who willingly and willfully casts his perceptions into black and white is going to be constant victim to and purveyor of little other than non-stop BS because of the complete disconnect with the rest of full color reality.
 

Bart,

Thank you for your honest response. But, as you can see, I more or less anticipated it:

I suspect that you might . . . say that simply proves that the federal government is too large and should be reduced. That is a different topic for a different day. I will simply say that there are some reductions you could convince me to agree to, but ultimately I do not believe it is possible to govern a modern society without a substantial bureaucracy.

So I will repeat my initial question to you. Do you believe it is possible to govern a modern society without a substantial bureaucracy?

(I will also note once again that it was not the bureaucracy but a duly elected President who was responsible for the Jose Padilla travesty).
 

About five or six years ago, Hong Kong's then chief executive Tung Chee-Wha (perhaps the most tone deaf office holder I have ever observed) decided to curry favor with his Beijing masters by banning a convention of the Falun Gong scheduled to be held in government buildings.
The civil servants advised him that, unlike in the mainland, Falun Gong was a legal organization in Hong Kong. They further advised that Falun Gong had completed all the necessary paper work to rent the government facilities and to hold the meeting, and had been given licenses to do so. They basically told him that there was nothing he could do to stop the convention.
It was a brief shining moment for the rule of law in Hong Kong, which unfortunately has undergone slow erosion ever since July 1, 1997.
I have often wondered how George W. Bush would have handled this situation if he were in Tung's shoes. I suspect he wouldn't have even asked.
 

"Bart" suffers from LTM deficiency:

I strongly suspect that we would not be having these conversations about ... calling for an outlaw Congress to impeach the President absent evidence of any high crimes and misdemeanors were it not for the fact that the current holder of that office if George W. Bush.

"Bart" misspells "Clinton". And seems to have slept through the time when there were not only calls for such, but the foaming Republicans in the House actually impeached him. Fortunately, saner voices prevailed over that nonsense.

I'd note, for the record, that those that have called for impeachment of the Deciderator-In-Chief have mostly taken some pains to explain their theories as to the grounds for such impeachment. Visceral dislike of Dubya is not one of them; that was the reason for the six-year, $6M witch-hunts into Clinton. See, e.g., Conason and Lyons's fine book, "The Hunting of the President".

Cheers,
 

"Bart" DePalma:

This President has consulted with the voters twice and won both times.

Once (and even that is arguable).

Cheers,
 

"Bart" DePalma says:

1) The bureaucracy should be stripped of rule making power, which is really an unconstitutional delegation of the legislative power of Congress.

I agree with Bart on this to some extent. But this is a fight between the legislative and executive branches; the Deciderator-In-Chief runs the rule-making organisations and in the end is responsible for what they do (and in fact, the Dubya maladministration is quite adept at passing down decisions from on high to the supposed experts, as witness his attempts to change the arsenic standards, to shape various environmental and health decisions, and to silence gummint scientists). This is harldy a maladministration of bureacracy run amok, but rather, as gets demonstrated repeatedly, a "science-free zone" where political ends trump the informed conclusions of career scientists.

There is a role to be played by administrative agencies in devising practical rules to implement the intent of legislation (which, by nature in today's world, cannot descend to the level of specifying, e.g., colour codes for wiring or wattage limitations for RF sources). The enabling APA, and the court cases on the limits to rule making on non-delegability, seem to make some sense.

One wonders, though, if "Bart" is so hard-nosed on non-delegability here, how he feels on the Constitutionality of the "AUMFs".

One also wonders if "Bart" would have the same approach to delineating the divide between executive and legislative authority here as he would have WRT the Constitutional role of Congress in making "rules for the government and regulation" of the military ... say, for instance, as to how they are to engage in intelligence operations.

I smell the pungent whiff of some smouldering hypocrisy....

Cheers,
 

"Bart" DePalma says:

In any case, I enjoy bringing my view of reality to the "reality based community."

"Bart"'s view of reality is that Iraq is going swimmingly, just according to plan.

This phenomenon, of course, is a good indication that any subsequent conversation should be limited to ridicule and sarcasm; any attempt at dialoge is like talking to a person on Uranus through a tin-can phone.

Cheers,
 

"Bart" DePalma:

Preaching to the choir on libertarian and conservative blogs is mental masturbation and is generally boring.

"Bart" seems to like the leather set.

George Carlin has the definitive response, translating Bart-Speak™ into English:

"Whips and chains <*Ummm-ummmm*> Great Danes <*Hmmm-hmmm-hmmmm*>"...

Cheers,
 

"Bart" DePalma:

If you doubt me, talk to someone who has ... been the subject of an abusive DOJ prosecution.

People have been stripped of recourse to the courts for abusive 'prosecution'? When did that happen? Where? How? Someone call the cops; we need to fix that pronto.

Cheers.
 

"Bart" DePalma manufactures history:

If any of you [...] also called for [...] his impeachment for actual felony perjury crimes...

Rehnquist: "Not guilty". No indictments (much less a conviction). Say, "Bart" what were these alleged "crimes", what are the elements of such, and what evidence do you have to support a prosecution on such (mindful, of course, that it is the jury that gets to decide innocence or guilt, not the prosecuting attorney)?

Cheers
 

"Bart" DePalma forgets where he's at from one paragraph to the next:

Don't feel insulted. There are many in the GOP who selectively applied their principles to Mr. Clinton during the 90s because they disliked the way he thrashed them in elections. Partisanship is an equal opportunity vice.

The "tu quoque" defence. Always a winner in a court of law.

Attributing your own sins to others, however, is unkind.

[Robert Link]: Seriously, I'd like an answer on this one, is it remotely possible that there exists even one person who has a serious concern not with the man, Bush, but his actions, known and unknown, proved and unprovable?

["Bart"]: I
do not distinguish between the person of George Bush and his policies.

But ... but ... but... I thought that the Republicans went after Clinton because they were pissed at him (and thank you, "Bart" for acknowledging the obvious). If "Bart" here claims that he makes no such distinctions between the person and the policies, I'd say that's an "admission against interest". But I'd note that Robert Link is in no way as disabled as "Bart" is, and is free to conduct himself in a more rational manner, regardless of how "Bart" chooses (or is forced) to act.

Cheers,
 

"Bart" DePalma:

I am a black and white ideologue, not a partisan....

Make that "white". It's the other guy that's "black" (or Mooooozzzlim) to "Bart".

... I believe in absolute truth and have a low BS threshold.

Why, that's me, too. But then again, I don't go mis-citing cases, claiming dicta is a "holding", stating that SJ motions are not proper before discovery is complete (and then proclaiming I've "schooled" my opponent), or otherwise making up "facts", engaging in logical fallacies left and right, citing partial monthly totals in comparison to full month totals elsewhere, avoiding substantive responses to my points and changing the subject or simply going away, and otherwise engaging in some of the most dishonest disputation I have ever seen. One has to wonder what "absolute truth" means in BartWorld™....

Cheers,
 

I really, really don't want to appear melodramatic (as some of us gay men can be), but . . .

. . .the Constitution is denigrated, incompetence over Katrina extolled, an unjust and unsound Iraq war undertaken, subsidization of business by taxpayers, hawking of Medicare to the insurance and pharmaceutical industries, deficit-financing to reward the wealthy, the federal takeover of education, the repeated lapses in House ethics while prosecuting homosexuals for merely existing, checks-and-balances obviated, failure to arm our military personnel, and again today the Times reports of more Evangelicalism pumping through our federal government . . .

When tallied, this Administration is beyond noxious, incompetent, and malfeasant, and after Lee Hamilton's entirely justified retort to Hilary Clinton's absurd question about Congress's inability to get "ahead" of the Leader ("Congress is complicit," responded Hamilton, as if Hilary's hairdo and previous enabling of GWB's toxic policies were suddenly "hidden" from view).

I really, really think the Great Awakening of the 18th C. is now our reality, however much Franklin, Madison, Washington, Paine, Jefferson, and those other Englightenment Dudes thought they had left the Rev. Whitefield and his merry band of proto-neocon theocrats behind them.

In deference to the Founders, especially Madison (who opposed a Bill of Rights on the basis that enumerated rights might obscure unenumerated rights, which, as history has demonstrated, is exactly what has happened, despite Article IX), perhaps biblical literalism is no more appropriate to the Constitution than it is to the Bible hermeneutics (Evangelical mindlessness notwithstanding). If Madison could be co-opted by the fundamentalists of his day, perhaps we need to be more literal about "high crimes and misdemeanors." An originalist (Scalia excepted) would know that this clause was meant for those exceptional cases when the whole system was endangered. After all, stability was esteemed, mobocracy was to be avoided, but always, always, the consent of the governed was never, never doubted or in question. But this "catch-all" phrase is not unlike unenumerated "rights retained by the people." Madison and the Founders knew the system needed "relief valves" to let off steam. Even if Art. IX is thoroughly discredited by subsequent generations, even if the "commerce clause" lets in civil rights legislation that was never ever intended, and after Kelo what literalism (if ever avails)?

I want to suggest that "high crimes and misdemeanors" need not be THAT literal either, and that it avails us still to "let off steam," especially the toxic kind of illiberalism that would undermine a pluralistic liberal democracy that the Founders would never, ever have countenanced to be subverted. After all, what are "high crimes and misdemeanors?" I'm not appealing to social constructionism, but merely to intuition, and to what I perceive as a genuinely "release valve." Who really knows what "high crimes and misdemeanors" were originally intended, or what we two centuries later might think it means, or what does it really matter whose determinate meaning we decide for ourselves today? It's there as a "release valve," and let's take it.

If the "evidence" in my second paragraph is not apropos, then nothing is or ever will be. Jackson and Clinton were tried on much lesser "crimes," if crimes at all, but this Administration is the personification of every "high crime and misdemeanor" known to any of us. If that clause does not apply now, it never ever will. If it applies now, as I'm convinced it must, it means more now than the Founders even thought possible.

It's not simply a vote of "no confidence," that would be entirely inappropriate. Bush is the epitome of a constitutional crisis, and we have a safety valve for just his once-in-a-lifetime situation. He is the very indeterminate definition of a "high crime and misdemeanor," and the sooner we judge him on it, the sooner we might save this nation from an even worse-case scenario that we and the Founders could not, and would not, want to comprehend. Now is not the time to be biblical literalists with the Constitution. Now is the time to save the Republic from the illiberals that our Enlightened Founders never thought would surface, that the Founders (maybe despite themselves) proffered an escape hatch just in case. USE IT. IMPEACH. It's not a vote of "no confidence," it's our national survival.
 

After all, what are "high crimes and misdemeanors?" I'm not appealing to social constructionism, but merely to intuition, and to what I perceive as a genuinely "release valve."

Ultimately, I think impeachment has to be driven from below, from the public, not from Congress. You're right -- it's a release valve for the public.

You've laid out the formal case and it's unarguable; the only thing lacking is a sense that the public is "done" with Bush. I think we're moving in that direction, but you never know just how long it will take. In Nixon's case, it was about a year and a half from the first witnesses testifying before the Ervin committee to his resignation. Let's hope for a quicker resolution this time.
 

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