Balkinization  

Friday, April 16, 2010

A Tale Told by a President

Mark Graber

Just sent off this short essay on the State of the Union. Happy to send the full piece to interested readers.

President Barack Obama’s State of the Union address has been described both as “full of sound and fury” and as “signifying nothing.” Critics have lambasted the President for insulting the justices who were present for his address. Professor Randy Barnett asked, “In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds [of] Congressmen?” Others have indicated that Obama’s rhetoric was moderate and a normal reaction to judicial rulings the chief executive thought wrong. Linda Greenhouse observed, “The president’s tone was mild compared to the animation in some other parts of the speech.”

Commentators might better appreciate the recent constitutional winter (“of our discontent”?) by remembering the Macbeth speaks of “poor player” who “struts and frets his hour upon the stage” immediately before his famous observation that life is “a tale told by an idiot.” Presidents only have a brief time to remake politics in their image. Time is short both because constitutional rules limit the chief executive to a maximum of two four year terms and because, in American politics, the political window for substantial progressive reform tends to close quickly. President Obama in his first year of office attempted to achieve his goals by rallying a bipartisan consensus in favor of health care and other measures. That effort failed. The State of the Union may demonstrate a new willingness to play “constitutional hardball” with Republicans (see Mark Tushnet's piece in Minnesota). This constitutional hardball was presaged by mere words against the Republican dominated federal judiciary, but was manifested more seriously in the President’s subsequent willingness to circumvent the various veto points, most notably the filibuster, in the national legislative process that had previous enabled Republicans to prevent the passage of health care reform. The majority Democratic Party, Obama’s State of the Union may have declared in retrospect, will no longer permit the minority Republicans Party to rely on preexisting political procedures to prevent or stall progressive legislation.

Comments:

So, what's the next 'veto point' they'll go after? The Supreme court having 9 members? Or will they go straight to electing a new people with immigration 'reform'?
 

Patience, Brett, patience. With health care reform, you'll be around to see what they go after. In the meantime, have a glass of tea, and carry openly just in case . . . .
 

The view that neither the "crime model" nor the "war model" is entirely appropriate seems nuanced and correct. My question is, aren't "crime" and "war" the only two models offered in the Constitution? Can Congress, the President, and courts work together to construct a new, third model if that's the case?
 

"Patience, Brett, patience. With health care reform, you'll be around to see what they go after. "

Hilarious suggestion, given that my being cured of cancer, twice, was paid for by a policy which health care 'reform' has rendered illegal.

"Can Congress, the President, and courts work together to construct a new, third model if that's the case?"

Why not "Congress and the states", as in using article V to add a new model to those contemplated by the Constitution? No matter what "Congress, the President, and the courts" do together, the Constitution won't have changed, after all.

However, the Constitution does, in fact, contemplate a third model besides war and crime: Piracy. Article 1, Section 8, clause 10: "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;"

Sounds like a good fit.
 

Brett, certainly correct that piracy is a third model, but I don't think anyone is contemplating putting terrorism under this heading. I guess terrorism is an "offense against the Law of Nations," but I don't know enough about international law to say.
 

What does originalism tell us about Article 1, Section 8, Clause 10? Isn't it more than a "piracy" model? Doesn't it also address " defining and punishing non-piracy/high seas offenses such as "Offences against the Law of Nations"? And how does the Supremacy Clause address the "Law of Nations"? Mourad has made many observations at this Blog on international law that have been useful. Perhaps we can expect some insightful comments from him.

Brett, just how does health care reform render your policy illegal?
 

It's a high deductible policy with my employer contributing towards a flexible medical savings account. (Meaning that, from MY perspective, it's no different from a no-deductible policy without petty restrictions on what's covered.) Last I heard, the recently enacted reform included provisions against high deductible policies, AND reduced the flexibility of the savings account.

In any event, the insurance I had paid for curing me, why would I need the 'reform' to hope to live?
 

Brett,

Yeah, your high-deductible policy now must have a no-deductible provision for preventative/diagnostic care. In places where such policies are routine (my state, for instance), they cost less (due to catching problems early, when they can be treated more cheaply). Blame the fiscal hawks for this, as they had to insist that HCR save money.

And you won't be able to pay for over-the-counter medications not specified by your doctor with FSA money.

As we can all see, these provisions are just unreasonable interventions between you and your insurance company.
 

one should never underestimate the temptation, among those who have recently become very powerful, to wield their power recklessly in order to demonstrate that they have it.
 

mls:
Is this something you concluded shortly after Jan. 20, 2001, beginning with the Bush/Cheney tax cuts and just now thought to publish? Or other events during that administration's 8 years? Or is this just another of your whimsical right wing comment? Or do you have Sen. Mitch McConnell in mind?
 

Shag- actually its a verbatim quote from Jack Balkin's post of December 13, 2004. Thanks for asking.
 

"As we can all see, these provisions are just unreasonable interventions between you and your insurance company."

You can claim they're reasonable, I can dispute it, but you can't claim they're not interventions. I was perfectly happy with my policy as it was, but I'm not being given any choice in the matter, am I? There are always trade offs in these things, but now somebody else, a third party, is deciding what trade offs me and my employer will make. Not us.

In any event, I was pointing out the irony of suggesting health care 'reform' was going to ensure my continued presence, when the policy that DID ensure that continued presence has just been outlawed by that 'reform'.
 

I'll try to link to the December 13, 2004 post of Jack Balkin to check the context. I assume it may have had something to do with Bush/Cheney's winning a second term. Query how mls meant to use his unquoted and unattributed quote of Jack (what do they call that in literary circles?) in the context of the present? Naive me, without quotes and attribution, I thought mls was coming up with his version of:

""Power tends to corrupt, and absolute power corrupts absolutely."
 

Can someone please point me towards Prof. Tushnet's piece in Minn? Thanks.
 

Brett,

A classic example of "I got mine conservatism".

You also didn't get mad cow disease when the beef industry was feeding ground up cow and sheep remains to feeder cattle, so I assume you believe that government shouldn't have stepped in to outlaw that.
 

Mark Tushnet has an article entitled "Constitutional Hardball.

It over five years old, but has been cited pretty often, including by Levinson/Balkin. But, I don't see any "Minnesota" connection.

Pretty obscure citation there.
 

The majority Democratic Party, Obama’s State of the Union may have declared in retrospect, will no longer permit the minority Republicans Party to rely on preexisting political procedures to prevent or stall progressive legislation.

The same strong arm tactics can be used by a GOP Congress in 2011 or with a GOP White House in 2013 to repeal what was enacted.

What goes around, can come around with a karmic kick in the ass.
 

Is our former backpacker looking forward with this:

"What goes around, can come around with a karmic kick in the ass."

to a return to the glorious Bush/Cheney years? I wonder what our yodeler is putting in his tea for that could end up being a kick in his own ass.
 

Brett's comments on his now "illegal" medical benefits suggest that he is not a believer in progressive taxation and welcomes tax subsidies that benefit him individually, a variation of a not quite pure libertarian. Paul Krugman at his NYTimes blog has a 4/17/10 post of a cartoon from The New Yorker depicting a house on fire, two firemen advancing with a hose and the owner says to them:

"No thanks - I'm a libertarian."
 

"You also didn't get mad cow disease when the beef industry was feeding ground up cow and sheep remains to feeder cattle, so I assume you believe that government shouldn't have stepped in to outlaw that."

I also believe that the government shouldn't bar meat producers from advertising that their meat is produced under safer conditions than the government mandates, as is currently the case.

You get government intervening in these things, you think you only get the upside? Had plenty of government intervention in the agriculture business in England, and it didn't save them from BSE.
 

Brett's "beef" seems to be that there should be no government regulation, or perhaps no government. In the past I have made reference to Louis "Satchmo" Armstrong's rendition of "Loveless Love" (same melody as "Careless Love") where Louie expresses incredulity for the need of a "pure food law" that had been enacted shortly before that song was written. So maybe Brett is at heart a pure libertarian, aka a heartless libertarian..
 

Brett,

Yes, as is so evident from my previous comments, I believe that government can protect me from all threats, foreign and domestic.

Since just not feeding cattle the ground-up bits of slaughterhouse waste doesn't actually make the meat "safer" (in any meaningful statistical sense), advertising it as such is false.

I guess we can add to the list of things you don't think government should regulate is false advertising. The Koch brothers, et al, thank you.
 

Brett, why haven't you moved to Somalia? That is clearly what you want to bring here. It should be clear to you by now that that is never going to happen. What is stopping you from moving there?
 

actually, i would prefer that brett remain here in the united states. i do respect his opinions, and they are respectfully thought out, for the most part. on the other hand, i would prefer to concentrate more on why rush limbaugh has not backed up the wagons for his long anticipated move to costa rica yet.
 

Whether or not his opinion is thought out isn't the problem. The problem is that following his opinion (lots of guns and no government) results in Somalia (lots of guns and no government).
 

I've started a companion site for discussing posts that have comments turned off.
Open Balkinization
 

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