Balkinization  

Thursday, February 02, 2017

Returning to an old theme: Life in a Constitutional Dictatorship

Sandy Levinson

During the presidency of George W. Bush, I regularly blogged on "life in a constitutional dictatorship."  This was provoked in part by his insistence on his being "the decider" and the issuance of many "signing statements" indicating a willingness to violate statutory (and international law).  Unfortunately, it is all too necessary to reinstate the series, and one must recognize that the sociopathic President is in fact far more of a danger than the incurious and impressionable (especially in his first term) George W. Bush.  Whatever the latter's failings, no one could believe that he was either a sociopath or simply out to build his brand and line his own pockets.  He was raised in a family devoted to public service.  The contrasts with the sociopathic incumbent are glaring.

There are two ways of approaching our present reality.  One is to dwell on what potentially illegal conduct the sociopath is engaging in.  That is obviously important.  But, as the saying goes, the real scandal is often what is legal, and that may well be the case in our present situation.  What the Trump Administration reveals, as Jack Balkin and I argued some years ago, is the extent to which the American Constitution, especially as it has developed after World War II--see especially the fine book by Steve Griffin, as well as his postings on Balkinization--is the extent to which we have the Constitution has served to create the equivalent of a constitutional dictator.  What has saved us in the past is a combination of the functioning of the complex web of American institutions plus, importantly, the character, what Publius would have called the "virtue," of those we have elected presidents.  Over the last eight years, though, other national political institutions have become steadily more weak.  Congress is justifiably treated with contempt by most Americans, and the Republican Party is wholly without anything that can be called a moral center, allowing itself to be taken over by a sociopathic demagogue who in no serious sense is a conventional Republican.  We might well refer to Trump's takeover as a putcsch, completely legal but thoroughly ominous.  There is, presumably, nothing remotely "illegal" about his complete disruption of the assumptions that have undergirded American foreign policy for the past 70 years or his threatening war with China.  Does he have to get Congress's permission before he can in fact go to war with China or Iran (or Mexico)?  Who knows, given the conduct of American presidents, including Obama, over the past three decades.  Presumably these three countries don't come under the "small country" exceptions to Article I that allowed Ronald Reagan to invade Grenada or George H. W. Bush to invade Panama, both without the slightest trace of congressional approval.  Given the exuberant readings of the AUMF by both the Bush and Obama administrations, might that be extended to Iran?  (I presume not China or Mexico.)  Obama, to his credit, pulled back from invading Syria by seeking congressional approval, but Libya was something else, presumably because American lives were not threatned if the bombing was carried out from way above ground.  But the one thing we can be confident of is that the sociopath has no regard at all for any constitutional constraints, especially as he is egged on by the repulsive Steve Bannon and Mike Flynn. 

Both Bannon and Flynn, incidentally, reveal the costs of accepting without serious national discussion the building up of an alternative government located in the White House itself, staffed by people wholly free of any kind of acocuntaibility to the U.S. Congress, either through the process of confirmation or compelled testimony before committees.  There is a reason, which doesn't speak well for us, that we regularly refer to "czars"appointed by presidents (or both parties) to handle problems outside of the "regular" bureaucracy.  One gathers that would-be Justice Gorsuch has his doubts about the administrative state (though see the symposium on Adrian Vermeule's fascinating book).  Would he be equally skeptical of the alternative state that takes a very different form via the National Security Council, for example?   

And, of course, I see the current situation as revealing ever more obviously the truly dangerous features of our 18th century Constitution and the degree to which it truly constitutes a clear and present danger to all of us.  The reason is simple:  Article II establishes a fixed four-year term unless we can find reasons (which, as a matter of fact, should not turn out to be all that difficult) to believe that the sociopath is also a criminal.  The alternative, of course, is to invoke the 25th Amendment,  which would require Pence and other Trump acolytes to agree that he is in fact unfit to be president, which seems even more quixotic than revving up the impeachment machinery (which would quickly generate shouting arguments among lawyers as to what exactly constitutes "high crimes and misdemeanors).  If, on the other hand, Congress could vote no confidence in the President, who would be replaced by someone selected by the caucus of his own party (so that only an election could change the party occupying the White House), then one might well believe that it would be quite thinkable that, say, two-thirds of Congress would express their collective rear of the sociopath by firing him.  Or, if we followed the constitutional possibilities in California and Wisconsin, we could initiate a petition to recall the sociopath.  But the Framers of 1787, who were extraordinarily fearful of "democracy," created a presidency, tailored for the noble Roman George Washington, that contained within it, as Max Weber argued a century ago, the seeds of caesarism.  That is reality we are now living under. 

As in ancient Rome, we must count on the Plebians, such as the 3 million people who marched two weeks go and the many thousands who have demonstrated at airports, to indicate to the spineless consuls in Congress that something must be done.  I will also suggest in accompanying posts, under a different title, that we should take the possibility of national dissolution very seriously, given that one highly unattractive alternative is actual civil strife or warfare.  As I've suggested earlier, it's not clear that the "mystic chords of memory" count all that much in a country that has long since given up on any serious civic education and lives under a national culture of an Economics 101 (or, if one wishes, a Federalist 10) notion of naked self-interest, manifested most clearly in our sociopathic President.

Adherence to the Constitution may be at least as much the problem as the solution to our present awful situation.  Since, though, it may well be the case that the Constitution itself makes it impossible to respond effectively, then we are simply at the mercy of the sociopath, armed with all of the considerable powers enjoyed by the modern American President.

Comments:

I don't think the experience with recalls in either CA or WI is something we should repeat on the national level.

As for the existing removal processes, I don't see any method of making them work under the current circumstances. The existing R party is profoundly corrupt; not even a few of their Members in Congress would vote to remove even a man so obviously unfit for office as the current occupant. That rules out a "no confidence" vote, even though they'd get to replace him with Pence, similar to a parliamentary democracy.
 

I think there's a typo in the penultimate paragraph: ancient Rome not "room". I look forward to subsequent posts on the subject.
 

" This was provoked in part by his insistence on his being "the decider" and the issuance of many "signing statements" indicating a willingness to violate statutory (and international law). Unfortunately, it is all too necessary to reinstate the series,"

Can't imagine why you'd have thought it appropriate to lay off during the Obama administration, if that was your complaint. He certainly wasn't shy about deciding that the text of the law didn't really need to be followed.

And, much as you loath Trump, isn't it maybe a couple days premature to make this declaration?

Anyway, I'll continue to maintain that much of what you complain about is not a matter of the Constitution, but instead of a political culture that doesn't regard the Constitution as binding. The Presidency would be a much less threatening office if enumerated powers doctrine, separation of powers, and non-delegation still held sway.
 

Trump is not a "sociopath" ... that's so harsh ... he is an "osciopath." Sure.

As noted, "adherence to the Constitution" is not as much the problem in certain ways as how it is being applied, especially by Congress. Sen. Kaine, e.g., has been on the "AUMF is too broadly applied, must be updated" case, to little apparent effect. This would apply if we change the rules in certain ways. See also, MF's comment.

The hope is that the new rules will restrain without as much ability to ignore basic bad habits. That's tricky, another reason the "re-write" approach concerns people.
 

Sandy's reference to George Washington reminded me of a Charlie Rose re-run earlier this week that included an interview of an author of a new book on Washington's Farewell Address (that was actually published in a newspaper) and inputs first from Madison and then from Hamilton. The discussion also referenced Ike's farewell warning of the military-industrial complex and Obama's farewell speech delivered in Chicago. I can't readily read books because of aging eyesight issues but am looking forward to reviews that I can magnify on my desktop and readily read. I did not note the author's name and book title. Perhaps someone can help with the identity. Washington served two terms as the first President under the 18th century Constitution and recognized some concerns that continue to the present. While many Presidents have issued farewell addresses, Ike's came many years later and made an impression with its warnings on my generation. (1952 was the first election I could vote in. I voted for Adlai.) Despite Ike's warnings, America's engagement in Vietnam (which Ike actually started) bogged America down through the presidency of Nixon. There have been many armed conflicts since. Sandy's post identifies new potential wars under Trump. It's not just foreign affairs but domestic matters as well that are cause for concern. I can agree with much of Sandy's post but hesitate as to corrective measures suggested. Secession, nullification or armed revolution would weaken American in a volatile world, perhaps resulting in foreign interventions by America's enemies. Even a second constitutional convention might end up weakening America, making us vulnerable to our enemies both at home and abroad.

I enjoyed our Thursday liberal, some progressives, lunch today that included some guests sharing a new grandchild, with discussions of family and the future we would like to see for this grandchild, as well as my grandchildren. When I see families with young children in my neighborhood, I stop to admire them, as they are the future. And I jokingly comment that I look forward to these children growing up and working to make sure the funding for my Social Security continues. The parents usually laugh. In the past it has been the future generations that have made America greater, as we progressives say, two steps forward, one step back.

So I'm going to get propped up in bed and relax and get back to this thread tomorrow - if there is a tomorrow.
 

It seems to me to be a difference between what W Bush did, for example saying 'sure there are these laws which prohibit torture and domestic surveillance, but they're unconstitutional in our opinion and we're going to do it anyway' and what's complained of with Obama who said 'the law says all undocumented immigrants are violating the law, but I'm only going to after the ones committing crime, not those brought over as kids who've stayed out of trouble so far.' One's a flat out active violation, the other involves enforcement discretion.
 

Sandy: Adherence to the Constitution may be at least as much the problem as the solution to our present awful situation. Since, though, it may well be the case that the Constitution itself makes it impossible to respond effectively, then we are simply at the mercy of the sociopath, armed with all of the considerable powers enjoyed by the modern American President.

If we adhered to the Constitution, we would not have the modern executive.

You progressives stood by or cheered when Obama further shredded the Constitution and weaponized the executive to accomplish your policy goals, so you have no ground now to complain about the voters handing that weapon over to Trump.

So far, Trump has not picked up that weapon. When Congress or the courts tell him "no," we shall see what he does.

If, on the other hand, Congress couldl vote no confidence in the President, who would be replaced by someone selected by the caucus of his own party (so that only an election could change the party occupying the White House), then one might well believe that it would be quite thinkable that, say, two-thirds of Congress would express their collective rear of the osciopath by firing him.

Impeachment provides the office a Vice President of the same party. You Democrats had no intention of impeaching Obama for ruling by decree even though his successor would be a Democrat because you wanted Obama to rule by decree to impose your policies after the voters fired the Democrat Congress.

Progressives are very comfortable with dictatorships so long as one of their own issues the diktats.
 

"and what's complained of with Obama:"

There's a lot more complained of Obama than that. Such as blowing off the War Powers act in Libya. Suspending and delaying hardwired provisions of the ACA. Spending money not appropriated by Congress to prop up some insurance companies. Issuing work permits to people not here legally. And that's just a start.

I expect Democrats would go berserk if the IRS starts targeting liberal groups, and then hammers a few hard drives into scrap and deletes the backups when it's investigated.

Then there's Fast and Furious, where the administration arranged for gun stores to allow straw purchases to Mexican gangs, in the hope that they could create the illusion that the US was a major source of Mexican crime guns. Didn't even try to follow the guns.

Or Operation Choke Point, where financial institutions were pressured into cutting off service to perfectly legal businesses Obama didn't like, under threat of abusive regulatory enforcement if they didn't.

The list of supposedly nonexistent scandals during the last administration is quite long.
 

Brett you've got a demonstrated history here of credulously taking stories from dubious sources, drawing hasty and poiorly reasoned conclusions that confirm your partisan, conspiratorial bent and then using that as a launching point for making recklessly. sloppy hyperbolic statements here. I'm betting this lies behind a fair amount of your list of scandals.

More importantly, the OP is not about ''bad or rotten things generally done' by the W, and by comparison Obama, administration. It's about open, 'owned' claims and exercises of executive powers. In that realm W's exercise of executive prerogative to actively violate the law seems different than the claims to be empowered to use enforcement discretion. For one thing, the first involved explicit restrictions on government power that were flouted while the second involved decisions *not* to excercise powers explicitly granted. A distinction one would think meaningful to ostensible 'libertarians.'
 

He is a self-expressed "conservative" and though "libertarian" is somewhat of a protean term, that reflects his comments better on some basic level. Don't know of a "libertarian" here. Endorsing self-expressed conservative Ted Cruz (which btw Eugene Volokh did) doesn't lead me to think one is. Again, variable term.
 

Brett you've got a demonstrated history here of credulously taking stories from dubious sources, drawing hasty and poiorly reasoned conclusions that confirm your partisan, conspiratorial bent and then using that as a launching point for making recklessly. sloppy hyperbolic statements here. I'm betting this lies behind a fair amount of your list of scandals.

It's impossible to support the R party without gaslighting one's self.
 

In what world is waging an undeclared war in Libya, or spending unappropriated funds, or coercing banks into denying legal businesses service, a decision to "not" exercise powers explicitly granted?
 

Mr. W:

Let us compare the unconstitutional exercise of power by Presidents Bush and Obama.

Beyond the normal unconstitutional activities of the absolute bureaucracy, Obama illegally exercised Congress's legislative power and violated the Take Care Clause by freely rewriting express provisions of the laws of Congress. See Obamacare provisions concerning government exchange subsidies and grandfathering in old insurance plans.

Bush did not.

Obama illegally issued literally millions of dispensations from favored groups following the laws of Congress in violation of the Take Care Clause. See DACA and again Obamacare. A handful of individual exceptions is prosecutorial discretion, millions of exceptions is monarchial dispensation.

Bush did not.

Obama illegally went to war without a declaration of Congress.

Bush obtained a bipartisan AUMF to go to war.

Your two indictments of Bush alleging he violated the torture statute with the enhanced interrogation program and the 4th amendment with metadata collection would be dismissed during a preliminary hearing before trial.

Once again, the military SERE techniques employed by the EIP do not inflict the severe or long lasting pain which constitutes criminal torture. Outlaw the EIP and you have to outlaw SERE.

Furthermore, the Bush NSA obtained warrants for their meta data collection from the FISA court.

Bottom line: Obama engaged in an unconstitutional dictatorship, Bush did not.
 

Brett, I doubt you or I know all the facts behind your last claim, your second sounds like the kind of implementation discretion that partisans like Bart lazily call tyranny. Your first is one I think all the relevant facts are known, and I'll agree with you there. Nearly every President has felt they can ignore the War Powers act, Obama's actions fairly include him there. I think Congress should have retailated. But again, that's one item in your litany, and as I've said not really on point with the OP's topic.
 

The NYTimes today features an article by Farah Stockman "Anarchists Respond to Trump's Inauguration, by Any Means Necessary" that earlyon included this:

"With far-right groups edging into the mainstream with the rise of President Trump, self-described anti-fascists and anarchists are vowing to confront them at every turn, and by any means necessary ā€” including violence."

This interesting article raises questions about our own Brettbart (the really, really "unBreit"), as each has claimed from time to time to being an anarcho-libertarian SPAM I AM! continues with his anti-fascist claims of The Donald (and others). I don't know if Brett or SPAM will take the time to read the article, but there seems to be a growing movement of "anti-fascists and anarchist" attacking Trumpian ideology that supports the alt right, KKK, white supremacists, etc. SPAM may be a Mugwamp as he continues to claim Trump is a fascist.

 

The entire point of SERE is for troops to experience torture conditions so they're better able to resist it if subjected to them by the enemy.

And
https://en.m.wikipedia.org/wiki/NSA_warrantless_surveillance_(2001ā€“07)
 

Mr. W: your second sounds like the kind of implementation discretion that partisans like Bart lazily call tyranny.

At the time or our founding, Anglo-American law universally considered exercise of the dispensation power to be tyranny and prohibited it in the English and American constitutions.

The American Take Care Clause bars the President from exercising "implementation discretion." Article II, Sec. 3 commands: "[The President] shall take Care that the Laws be faithfully executed...."

The Founders imported the idea for Take Care Clause from a provision of the English Bill of Rights of 1689, stripping the monarch of the power to dispense enforcement of the law against his favorites: "That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal"
 

Mr. W: The entire point of SERE is for troops to experience torture conditions so they're better able to resist it if subjected to them by the enemy.

This argument is irrelevant for the purposes of the torture statute.

The argument has some relevance under the Geneva Conventions, which bars detaining governments from employing coercive interrogation against privileged POWs. The problem with this argument is enemies who do not follow the conventions and commit war crimes are not privileged POWs.
 

"Brett, I doubt you or I know all the facts behind your last claim"

Doesn't sound like you particularly want to know, either.
 

Discretion in implementation and enforcement are common, necessary features of administering policy and law.
 

Look, you can't cram every violation of the law into "discretion". Spending money that wasn't appropriated isn't an exercise of discretion, it's criminal.

If the President doesn't have to enforce laws he doesn't like, or obey laws that get in his way, he's just a dictator.
 

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The actual details are complex, each individual case often reasonable (sometimes the courts find not, but nothing novel there, the usual push/pull around since the beginning, each case not a "scandal") just like "blowing off" the War Powers Act doesn't really includes forty page arguments about why it did not apply.

Since there has been executive discretion basically forever in this country, the basic argument leads to the idea that everyone is a dictator. The word is diminished in the process. This is "just" bad use of language.

Obama enforced laws he didn't like as a general matter, including in the force of court action. Like other executives, his record is mixed here and there are call for criticism. The one provided here leave a lot to be desired as past pushback shows.
 

Joe:

The details are not complex nor is the argument of discretion credible.

Declining to enforce the immigration laws against 5 million illegal immigrants and enforce Obamacare mandates against over 1,400 Democrat supporters is not prosecutorial discretion.

Providing illegals with the full array of welfare state benefits is facially illegal.

Compelling people to buy government designed health insurance is not regulating commerce.

Exchanges established by the state means exchanges established by the state - not the federal government.

Etc, etc.


 

You have to love that's Brett response to the charge that he too often credulously buys and reads into to many dubious sources is to simply link to a Wikipedia page flagged for having too many partisan sources and contradicting itself.

If Brett achieved self awareness, what would that look like?
 

"Declining to enforce the immigration laws"

Prosecutorial discretion. Not even Trump follows a policy of full enforcement of immigration law, everyone prioritizes and defers.

"
Providing illegals with the full array of welfare state benefits is facially illegal."

Iirc this was initially a Reagan era policy.

"
Compelling people to buy government designed health insurance is not regulating commerce."

Of course it is. Insurance transactions are commerce, and a rule to mandate is a rule as much as a prohibition.

"Exchanges established by the state means exchanges established by the state - not the federal government."

Except if state refusal to establish triggers the establishment in that state of a federal exchange they're functionally the same.

You gots nothing here.


 

Brett, I seriously doubt you understand the legality of federal executive spending in regards to appropriations.

"If the President doesn't have to enforce laws he doesn't like,"

But he was enforcing the law. Millions were deported. But just like a sheriff might decide not to spend time and money arresting hookers as long as they don't stand in front of businesses or speeders rushing to get pregnant women to the hospital without being a despot, the President can decide to not pursue illegals brought over as children, and not be a dictator.
 

"You have to love that's Brett response to the charge that he too often credulously buys and reads into to many dubious sources is to simply link to a Wikipedia page flagged for having too many partisan sources and contradicting itself."

Oh, for crying out loud. You're going to get those sorts of flags on any Wikipedia article that makes the left look bad. There are people employed full time just scanning Wikipedia for any article that needs to be screwed with to make the left look good.

The edit wars there are legendary, don't tell me you think articles only get flagged because they're dubious!

House Oversight Committee: Report: DOJā€™s Operation Choke Point Secretly Pressured Banks to Cut Ties with Legal Business
 

Mr. W: But just like a sheriff might decide not to spend time and money arresting hookers as long as they don't stand in front of businesses or speeders rushing to get pregnant women to the hospital without being a despot, the President can decide to not pursue illegals brought over as children, and not be a dictator.

Obama nearly ceased enforcing the immigration laws except against serious felons and sanctuary cities were no even reporting felonies to ICE. The vast majority of illegals who were caught were then released.

A proportional analogy would be to a sheriff who refused to enforce any criminal laws which were not at least a third degree felony.

This is not prosecutorial discretion in any reasonable meaning of that word.
 

Bart, a record number of people were deported under Obama.

https://www.google.com/amp/abcnews.go.com/amp/Politics/obamas-deportation-policy-numbers/story%3Fid%3D41715661?client=safari
 

BD: Compelling people to buy government designed health insurance is not regulating commerce."

Mr. W: Of course it is. Insurance transactions are commerce, and a rule to mandate is a rule as much as a prohibition.


To regulate means to limit or discipline an act, not to compel performance of the act.

BD: "Exchanges established by the state means exchanges established by the state - not the federal government."

Except if state refusal to establish triggers the establishment in that state of a federal exchange they're functionally the same.


Not remotely. Congress's intent was to blackmail the states by withholding subsidies if they did not build Obamacare exchanges.

In order to enjoy the rule of law, words must have meanings.
 

Mr. W: Bart, a record number of people were deported under Obama.

Straw man.

Just because I followed the law before I pulled out a gun and shot you dead does not mean I am law abiding.
 

"a sheriff might decide not to spend time and money arresting hookers"

Burt Reynolds in the Best Little Whorehouse In Texas was the biggest dictator of them all. Has Brett cited the Democratic Oversight Chairman's many reports in the past?

The Office of Professional Responsibility put forth a report here too:

http://business.cch.com/bfld/ChokePointOPRReport.pdf

https://lrus.wolterskluwer.com/news/banking-finance-law-daily/justice-didn-t-unlawfully-target-industries-for-operation-choke-point-report

 

What had the makings of a reasonably interesting thread has been hijacked, as usual, by the troll who goes by the names Brett and Bart. Until this troll is banned, the comments at balkinization will remain unreadable.
 

Is the left actually capable of encountering disagreement without the urge to censor it? Sometimes I wonder.
 

1. To regulate means to make rules about. Mandates are rules as surely as prohibitions are.

2. Words indeed have meanings. They also have functional equivalents. If I tell you to 'take the car to go get milk' you'd be obtuse to not go because we had a 'van, not a car.'

3. In the immigration debate you offered up the analogy of a sheriff ignoring most crimes. But in pointing out Obama's deportation record I show that the sheriff here has done more than all previous ones. To say he's ignoring or defying the law is therefore laughable.
 

Let's toss back at Brett this variation of his7:21 PM:

"Is Trump actually capable of encountering disagreement without the urge to censor it? Sometimes I wonder."

Som of us would substitute "always" for "sometimes."

 

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