Category Archives: US Politics

Who Suffers the Most from Government Shutdowns?

The National Interest

January 23, 2018

he federal government shutdown of 2018—or, at least, the first one—ended with only one workday missed. To the extent ordinary citizens noticed at all, they likely think it was no big deal. This is especially true with regards to the impact on the U.S. military, who they’ve been steadily assured went right on working, without so much as having to endure the hardship of missing the weekend’s NFL playoff games. In fact, however, millions of man-hours of productivity have been lost from this continuing crisis, with a real impact on readiness.

Secretary of Defense Jim Mattis issued a memorandum at the onset of the shutdown declaring, “We will continue to execute daily operations around the world—ships and submarines will remain at sea, our aircraft will continue to fly and our warfighters will continue to pursue terrorists throughout the Middle East, Africa, and South Asia.” While that absolutely happened—and would have continued for quite some time even in an extended shutdown—that’s not all his department does on a daily basis.

While current operations continue, many training and support activities cease—especially those that require travel. Military students at resident courses, including the one where I teach, are allowed to remain in place to continue their studies, but their civilian faculty are sent home. Ongoing field exercises are typically suspended, with personnel required to return to home station. And, depending on which pots of money they’re paid from, students at nonresident schools are often sent home mid-course, only to have to come back at a later date.

At my own institution, which has a roughly even mix of military and civilian faculty, we were able to weather the 2013 shutdown with only modest inconvenience. While we were in the middle of a block of instruction taught by civilian PhDs, we were able to slide lessons taught by lieutenant colonels and commanders to the left.

This go-around, we happen to be in an elective period, and because we have several outside faculty teaching, adjusting the schedule was impractical. Had the shutdown continued another day, the classes designed and normally taught by the furloughed PhDs would have been picked up mid-term by colonels and lieutenant colonels with twenty-four hours to prepare. It was likely the best out of a set of really bad options, but it would have not only been a suboptimal outcome for the students—themselves majors and lieutenant commanders deserving of the best education we can provide—and put the new instructors in an incredibly awkward position, but it would have taken up valuable preparation time for upcoming classes and exercises led by those same officers.

Additionally, while the military students would have remained in the course, their interagency civilian colleagues were furloughed for the duration. During the 2013 shutdown, which lasted sixteen days, this meant that not only were students from the CIA, State Department, and other agencies missing a significant chunk of the curriculum, but the military students were missing the invaluable perspective that they’re in the room to provide. And, because they’re staffed almost exclusively by civilians, the library and similar critical support facilities were closed, as were all manner of base programs and services for the troops and their families.

As I noted in this space after the October 2013 shutdown, the best estimates are that it costs between $2 billion and $4 billion to prepare for a government shutdown and the same amount to get back up and running. And, while this was the first actual shutdown since then, there have been more than a dozen near-shutdowns in the interim, as we continue to fund the government by continuing resolutions, often mere weeks at a time, and play a constant game of chicken with the debt ceiling.

Beyond the financial cost, of course, there is the impact on morale. DoD civilians constantly worry about being furloughed and whether the next paycheck is coming—including right before Christmas this past year. Then-SecretaryChuck Hagel declared “we can’t continue to do this to our people, having them live under this cloud of uncertainty.” If anything, it’s gotten worse, given the frequency of the brinkmanship.

Perhaps worse than the uncertainty is the constant reminder that we’re less valued. While we’ve finally gotten rid of the insulting “essential” vs. “nonessential” label, opting for the more sterile “exempt” and “nonexempt,” the fact remains that the vast majority of the civilian workforce is considered expendable while every single uniformed member of our armed forces is considered mission-critical—even though they’re frequently doing the identical job.

The flip side of that is that, as Mattis declared in his memo, “active forces will stay at their posts adapting their training to achieve the least negative impact on our readiness to fight.” For the duration of the shutdown—and, again, this one was thankfully short—our soldiers, sailors, airmen, marines, and coast guardsmen pull double duty, doing their own jobs while trying to cover for the furloughed civilians.

This is a great cost to the nation and its armed forces for no obvious gain. Historically, Congress has always authorized and the president always signed off on back pay for employees furloughed during a shutdown, so we’re actually paying people not to work. Like the debt ceiling, wherein Congress periodically has to authorize borrowing the money it has already voted to spend or else put the nation in peril, it’s an absurdity that needs to end.

In the meantime, we’re scheduled to go through this farce again on February 8.

Original article

Normalizing Hysteria

The National Interest

November 15, 2016

Critics of Donald Trump, of which I have long been one, have spent the past sixteen months arguing that he is manifestly unprepared by experience and unsuited by temperament to be President of the United States. The Republican national security establishment, in particular, has been at the forefront of the #NeverTrump movement. Now that he is president-elect, however, I think that constant comparisons of Trump to history’s worst monsters are bound to boomerang. The opponents of Trump say they want to avoid “normalizing” him. In fact their hysterical comparisons accomplish what they profess to want to avoid.

While most politicians are indeed playing the game by the ordinary rules of civility—those which, incidentally, we were warned would not be followed by Trump were he to lose, thus causing grave damage to our Republic—we’re certainly seeing a lot of the opposite from a smug commentariat.

Consider outgoing Senate Democratic Leader Harry Reid. Not all that burdened by the bounds of comity even before retiring from office, he declared, “The election of Donald Trump has emboldened the forces of hate and bigotry [3]in America.” For good measure, he adds, “White nationalists, Vladimir Putin and ISIS are celebrating Donald Trump’s victory, while innocent, law-abiding Americans are wracked with fear – especially African Americans, Hispanic Americans, Muslim Americans, LGBT Americans and Asian Americans.”

While histrionic, that’s at least grounded in fact. But we’ve already reached Peak Godwin.

New York Times feature noting how badly the Newspaper of Record misdiagnosed the rise of Hitler [4] back in 1922 is again making the rounds [5].  The lede: “Several reliable, well-informed sources confirmed the idea that Hitler’s anti-Semitism was not so genuine or violent as it sounded, and that he was merely using anti-Semitic propaganda as a bait to catch masses of followers and keep them aroused, enthusiastic, and in line for the time when his organization is perfected and sufficiently powerful to be employed effectively for political purposes.”

Yet, given that Trump passed for decades on the Manhattan cocktail circuit as a social liberal, it’s quite possible that the vociferous nativism of Trump’s campaign was for show. More importantly, however, the problem with comparing people to Hitler is that, well, nobody else is Hitler. Compared to death camps that slaughter millions, anything that Trump might propose will seem reasonable by comparison. But, surely, Hitler isn’t the left limit of American democracy? (Of course, as Holocaust historian Gavriel Rosenfeld has noted, Hitler himself has been normalized [6] as fodder for humorous Internet memes.)

On a similar note, Esquire‘s Charles Pierce, who has called on the Electoral College to stage a coup [7] and elect Hillary Clinton president despite the election outcome, declared on his Twitter feed, “The hiring of Steve Bannon as a WH policy adviser is exactly the same as hiring David Duke [8].” He adds the obligatory, “Please don’t normalize this.”

The problem with this is that Duke is the very symbol of racism in modern America. He has been a leader of Ku Klux Klan and other white supremacist groups going back nearly five decades. While he long ago denounced the violence of the Klan and eschewed hoods and bedsheets for suits and ties, he’s remained at the forefront of white nationalist and neo-Nazi movements. Bannon, by contrast, has run a website that gives free reign to white nationalists [9] and hosted a talk show that gives a platform to anti-Semites and Muslim bashers. That’s terrible.  I don’t think Bannon should be the chief political advisor to the president of the United States. But claims that he’s equivalent to David Duke actually serve to make Bannon seem reasonable by comparison. And, again, “well, at least he’s not David Duke” should hardly be the measuring stick for unacceptability.

Whether it’s refusing to release his tax returns; declining to say whether he would accept the outcome of either the Republican primaries or the general election if they didn’t go his way; not answering questions from reporters for months on end; or getting away with dozens of outrageous statements and flubs that would have surely sunk any other campaign, Trump has not played by the rules and he’s seemingly been rewarded for it. That’s infuriating. But the answer isn’t to refuse to normalize the elected president of the United States but to treat him precisely as we normally would a president.

New York Times political correspondent Maggie Haberman, frustrated at questions as to whether a dubious charge against Trump was actually true, answered, “Don’t you think the standard at this point needs to be that thepresident-elect clarifies or we print it [10]?”  While I share her frustration, the obvious answer is No. Journalists should actually do their jobs and investigate claims made by and about Trump.

At the same time, they should stop treating him as a reality show host making a playful run for the presidency and treat him as someone who has made a successful run for the presidency. The should absolutely dig into and expose the backgrounds of people Trump appoints to positions in his administration, certainly to include Bannon. They should demand answers to questions as to how or whether he’ll implement the rather vague policy pronouncements he made on the campaign trail.

Will he actually build (another) wall along the Mexican border, or was that just a campaign device? He now claims he’ll “immediately” deport three million illegal immigrants? How will he identify them? How will he do this without terrorizing those here legally?

What is his relationship with Vladimir Putin? What will his policies be with regard to our Article 5 commitments to our NATO allies? Russia’s invasion of Ukraine? Our conflicting interests in Syria?

Is he really going to scuttle the Iran nuclear deal? If so, what’s his alternative plan for restraining the mullahs?

Speaking of nuclear weapons, is he really okay with proliferation to the likes of Saudi Arabia?

Is he really going to re-institute torture policies that have now been specifically prohibited under US law?

Those are just some of the most obvious issues just on the foreign policy front. Trump ran a campaign with no precedent in modern American history and we have reason for deep concern about his presidency. Yet there’s no escaping a modicum of normalization. Rather than crying “Hitler,” we must now be more vigilant. Let’s call Trump out if he puts unqualified or intemperate people into positions of power. Let’s push back on unwise policy proposals or executive orders. And let’s remember that the standard is not whether Trump’s policies resemble those of fascists and totalitarians but whether they’re in the best interests of the United States and our allies.

Original article

Generals and Political Interventions in American History

War on The Rocks

August 4, 2016

In a curt letter to The Washington Post, former Chairman of the Joint Chiefs Martin Dempsey, reacting to speeches by two recently retired generals — Michael Flynn and John Allen — before the Republican and Democratic conventions, declared that, “The military is not a political prize.” Dempsey explained:

The American people should not wonder where their military leaders draw the line between military advice and political preference. And our nation’s soldiers, sailors, airmen and Marines should not wonder about the political leanings and motivations of their leaders.

Certainly, this is not a new controversy.  Way back in 1992, one of Dempsey’s predecessors Admiral William Crowe gave a speech endorsing Bill Clinton for the White House as the future president was facing criticism over his dodging of the draft during Vietnam.  He was soon joined by another 20 retired generals and admirals, many of whom, like Crowe, had seen their military advice overruled by Clinton’s opponent, sitting President George H.W. Bush.

Moreover, the United States has a long history, literally going back to the founding, of retired generals entering politics.  George Washington, Andrew Jackson, William Harrison, Zachary Taylor, Andrew Johnson, Ulysses Grant, Rutherford Hayes, Franklin Pierce, James Garfield, Chester Arthur, Benjamin Harrison, and Dwight Eisenhower all rose to the presidency at least partially on the strength of their military records.  In recent times, Wesley Clark ran unsuccessfully for the Democratic nomination and there was a serious effort to recruit Colin Powell to run as well.  Indeed, there was an effort this cycle to draft Jim Mattis, who showed no interest in the pursuit.

Retired generals have involved themselves into political debates in myriad other ways. Ten years ago, in what came to be called the “revolt of the generals,” when several just-retired generals, most of whom had been “in the inner circle of policy formation or execution of the Administration,” openly lambasted Secretary of Defense Donald Rumsfeld, with whom they’d had disagreements while in uniform, over the Iraq War.  And, of course, the nickname of the controversy was a play on the “revolt of the admirals” of 1949, in which active and retired flag officers squared off against President Harry Truman over a decision to cut an aircraft carrier to fund a new strategic bomber.

The ethical norms around each of these political interventions differs and none of them are particularly well-settled. There is no serious question whether they have a legal right to do any of these things; they clearly do. Yet there is reason to be concerned about the impact on civil-military relations when the most senior officers join the political fray.

Clearly, there’s a distinction between declaring oneself a candidate for office and endorsing a candidate.   As Duke political scientist Peter Feaver notes, “When you stand for office you officially cross over and become a politician — you are viewed as a partisan politician and thenceforth can only speak as a partisan.”

But what about endorsing? Obviously, it makes no sense to declare a moratorium on any veteran or former soldier ever speaking about politics. That would disenfranchise a huge number of people and deprive the public debate of an important perspective.  And, indeed, it would be an odd argument for me to make, since I’m a former Army officer.

While there is no clear standard, the rank at which one separated from the service and the proximity of said separation are part of the equation.  Nobody seriously thinks someone who left active duty as a first lieutenant, as I did, represents the service.  And, even for very senior officers, that presumption fades with time.

Dempsey took a stab out laying out the distinction while he was still chairman. In a May 2014 session at the Atlantic Council, he observed:

If you want to get out of the military and run for office, I’m all for it. But don’t get out of the military – and this is a bit controversial, I got it – don’t get out of the military and become a political figure by throwing your support behind a particular candidate.

His rationale is spot on

[I]f somebody asks me, when I retire, to support them in a political campaign, do you think they’re asking Marty Dempsey, or are they asking General Dempsey? I am a general for life, and I should remain true to our professional ethos, which is to be apolitical for life unless I run.

Retired Navy Vice Admiral Doug Crowder, writing in Proceedings last November, expanded that argument, contendingthat those who wear stars on their shoulder boards “are not merely private citizens after retirement” but rather part of a unique vanguard:  a general or “admiral for life.”

Crowder explains that his view on the issue was informed by his experience serving on the Joint Staff early in the Clinton administration when a civilian staffer, annoyed at being told that an issue being proposed would be opposed by the chairman, responded, “Well, maybe it’s time we got some Clinton generals in here.”

He was aghast at the notion that the civilian leadership would think senior officers would fail to support the elected commander-in-chief for partisan reasons, until he remembered that Crowe had in fact joined the fray in endorsing Clinton during the campaign. Crowder writes, “I have never met a finer officer and gentleman, but I could see how the public could misunderstand why an admiral was making a public political endorsement of a presidential candidate.”

As Crowder notes, “the Crowe endorsement opened the floodgates for future retired flag and general officer political endorsements.” They are now routinely trotted out by both parties. During the 2012 cycle a full page newspaper ad ran “listing the well over 300 retired flag and general officers who ‘Proudly support Governor Mitt Romney as our nation’s next President and Commander-in-Chief.’”

Certainly the Republic has not crumbled as a result. And the military continues to be near the top of all institutions in terms of the confidence of the American public. Still, the next president will surely have cause to wonder about the loyalty of the senior officers upon whose “best military advice” they are counting.

There are few general officers, active or retired, whose judgment on national security matters I respect more than John Allen’s. While there are things in his convention speech with which I disagree, I share his assessment that Hillary Clinton is more fit to serve as commander-in-chief than Donald Trump (granted, a low bar).

But Allen didn’t simply present himself as a seasoned policy hand.  His very first words in his convention speech were,

My fellow Americans, I stand with you tonight as a retired four-star general of the United States Marine Corps, and I am joined bymy fellow generals and admirals, and with these magnificent young veterans of Iraq and Afghanistan” [emphasis mine].

He thus wrapped himself not only in his own substantial personal credibility but in that of his profession.

That continued after the speech. Trump, as is his wont, counterpunched, calling Allen “a failed general.” In response, Allen invoked the prestige of his profession, retorting, “He has no credibility to criticize me or my record or anything I have done.” He continued, “If he’d spent a minute in the deserts of Afghanistan or in the deserts of Iraq, I might listen to what he has to say.”  Worse yet, he termed Trump’s comments “a direct insult to every single man and woman who’s wearing the uniform today.”

Now, Trump’s assertion that Allen is a “failed general” because we haven’t defeated the Islamic State is at best simplistic and arguably absurd. But, having joined the political fray in such a full-throated way, Allen is fair game. Hiding behind the armor of the uniform he proudly wore and the troops who now serve is highly problematic for the institution, which holds such high prestige and has such tremendous value in our system of government precisely because it is viewed as a loyal servant of the nation rather than a partisan tool.

Further, it makes Allen’s warnings that electing Trump could result in “a civil military crisis, the like of which we’ve not seen in this country,” especially ominous.  He was, rightly, pointing out the moral dilemma that would face the uniformed leadership were Trump to assume office and actually try and enact some of the off-the-cuff musings on international relations as policy. Were Trump to assume the mantle of commander-in-chief and issue an order the brass believed unlawful, they would have a duty to advise him accordingly and to abide by the laws of this nation and the laws of war. There are appropriate venues for airing that discussion, such as a Congressional hearing. A national political convention is not one of them. But, in context of a retired general who has just spoken as a party convention, it comes across as a warning that the military would be disloyal if a president of the wrong party were elected. This could lead to a calamitous state of affairs.

Meanwhile, Flynn not only spoke at the Republican convention but was purportedly on the short list to be Trump’s running mate. Even though he was not selected for the ticket, he has taken on an attack dog role, even carrying the fight to Twitter where, in what one hopes was a newbie’s incompetence, he enthusiastically retweeted an anti-Semitic attack on Clinton. That is, to say the least, not a good look.

Flynn, who retired as the three-star head of the Defense Intelligence Agency just shy of two years ago, has been an active opponent of the Obama White House almost from the moment he hung up his uniform. He declared last year that, “The people in the United States have lost respect and confidence in their government to be able to solve the problems that we face now and in the future.” Feaver warned at the time that Flynn’s aggressive criticism could undermine policymakers’ confidence in the brass: “If they suspect ‘this guy’s going to retire and then go on MSNBC and bash me,’ [they might decide] ‘let’s not have that person in the room when we’re really discussing the issues.’” That would be both understandable and catastrophic.

It is technically true, as Richard Swain argues, that “retired officers remain members of the armed forces by law and regulation” and it is therefore reasonable to assume that “they remain at least ethically obliged to observe the limitations imposed by commissioned service.” But there has been little precedent for holding them to that standard. Nor is it reasonable to expect, for example, a retired lieutenant colonel, who already rendered at least two decades of service, to continue to abstain from the full rights and privileges of citizenship for the remainder of his life.

Still, we can nonetheless formalize professional norms for retired generals and admirals. Don Snider, a retired Army colonel and longtime scholar of the profession, argues:

While retirement from active duty does make each one a newly nonpracticing professional, in the world of public perceptions they still act and speak, and are seen and heard, as an esteemed member of the military profession.

As such, they continue to have an obligation to ensure that officership is perceived as “a real profession as opposed to just another governmental bureaucracy.” Otherwise, they undermine the confidence of the civilian leadership, the American public, and rank-and-file soldiers.

We can begin with the distinction that holds for active duty officers and, to a lesser extent, civilian employees of the Defense Department between partisan politicking and issue advocacy. It’s perfectly reasonable and likely valuable for retired officers to weigh in on public debates on controversial issues, like gender integration or proposed military action, where it would be inappropriate or difficult for serving generals to weigh in where their civilian masters have spoken.  (Although, here, the rule may well be the opposite as that for partisan endorsements: the longer the officer has been out of uniform, the less valuable his expertise.)

At the same time, it’s clearly inappropriate for retired generals and admirals to endorse or oppose the re-election of officials they’ve recently served or worked alongside. It simply smacks of disloyalty and brings into retrospective question the advice they rendered while in uniform. Further, it gives the impression, true or otherwise, that their views are shared by their successors — especially those who were protégées. Relatedly, if the endorser is later appointed to a plum post in the administration, as Crowe was, then it looks very much like the imprimatur of the military profession has been auctioned off for advancement.

We already impose a statutory moratorium on certain senior officers from lobbying or accepting a contract from their former agency for two years after retirement. Adding a ban on using their title in partisan political activity for, say, five years would serve the same purpose — removing the appearance of impropriety — without permanently taking them out of the arena. This wouldn’t solve the problem entirely but would put some space between an individual’s time in uniform and partially mitigate the impression that they are speaking for those with whom they recently served.

In an ideal world, retired generals and admirals would simply refuse, as non-practicing members of the profession of arms, to refrain from endorsing political candidates or otherwise engaging in partisan activity.  A Flynn or Allen could still speak out on national security issues that concern them, including those that are part of an ongoing campaign, without explicitly endorsing candidates or appearing at a party convention.  Few would criticize them if they had instead appeared at a think tank or before Congress arguing for a more aggressive approach to fighting ISIL, warning of the dangers to embracing torture, or abandoning protections for non-combatants.

It is essential that our generals and admirals are perceived as loyal to the Constitution, not a political party. A commander-in-chief should have every confidence that they are receiving the best military advice from the chairman, the service chiefs, combatant commanders, and other senior military leaders. Otherwise, it would absolutely be appropriate for the next president to look for “Clinton generals” or “Trump admirals” to fill the top billets. And we clearly do not want that to happen.

Original article

GOP Presidential Primary: Why Wild Swings Persist

Christian Science Monitor

November 3, 2015

Another day, another poll.  Friday night, IBD/TIPP released a poll showing Donald Trump leading the field by 5. Last night, NBC/WSJ showed Ben Carson up by 6. Aside from the fact that “outsiders” continue to dominate the competition, the real news is the sheer volatility of the poll numbers.

Here is the RealClearPolitics average over the last three months, the span since the first big debate of the cycle.

At first glance, there’s a remarkable consistency: Trump has dominated, Carson has been rising fast, and everyone else is far behind. But go back to points in the cycle and there are wild swings. Look at the lead changes over that period:

  • Aug. 3: Trump 22.5, Bush 12.7, and Walker 12.0.   (Walker dropped out six weeks later.)
  • Aug. 18: Trump 22.0, Bush 10.7, and Carson 9.7.
  • Aug. 28: Trump 23.5, Carson 10.3, and Bush 9.8.
  • Sept. 22: Trump 28.0, Carson 19.0, and Rubio 8.0.
  • Sept. 23: Trump 25.7, Carson 18.3, and Fiorina 9.3
  • October 10: Trump 22.9, Carson 17.7, and Rubio 9.9

Since then, those three have held as the Top 3 top, with fluctuation in their numbers and the competition among the also-rans has continued.

Wisconsin Gov. Scott Walker’s fall off the cliff is almost as interesting as Carson’s meteoric rise. Carly Fiorina, who vaulted herself from the kid’s table to the main debate after a solid debate performance and then flashed into a solid third place after a second fine showing, had a rather brief moment in the sun. She faded away for no apparent reason, having committed no obvious gaffes.

Rubio hasn’t so much risen as others have fallen off. He’s been no lower than 8.0 and no higher than 10.2 going back to mid-September.

Bush hasn’t led any national poll since July 19, when Trump exploded into first place. But he’s been holding steady for the past two-and-a-half months.

It’s been pretty clearly a two-man race for first for the last two months. We’ll see if Trump’s crazy uncle at Thanksgiving and Carson’s low talker who knows nothing at all about national politics act wears thin between now and Feb. 1, when the people of Iowa cast the first actual votes in the contest. My bet continues to be that they will, although this cycle is so unlike anything I’ve ever seen before that it defies prediction

Original article

Is Jeb Bush’s Campaign Dead?

Christian Science Monitor

October 26, 2015

While the horse race aspect of campaigning is fascinating for political junkies and the life blood of media coverage, it’s pretty much a fool’s errand a year out.

In December 2003, Howard Dean was running away with the race for the Democratic nomination while John Kerry was mortgaging one of his wife’s houses to keep his campaign afloat.

At this point in 2007, John McCain’s bid for the nomination had been pronounced dead numerous times.  He’d fired half his campaign staff, was dead broke, and changed management more than once.

At this point in 2011, Herman Cain was leading the race for the Republican nomination. By mid-December, Newt Gingrich had a sizable lead on the field. Once he fell away, Rick Santorum took the lead, winning the Iowa Caucuses and topping the national polls into late February.

With Joe Biden definitely not running and everyone tiring of both Benghazi and the e-mail scandal, it’s next to inconceivable that Hillary Clinton won’t cruise to the Democratic nomination. She’s down to two nominal challengers, Bernie Sanders and Martin O’Malley, and neither has the charisma to unseat her.

At the same time, it’s virtually inconceivable that Donald Trump, much less Ben Carson, will win the Republican nomination when all’s said and done. Neither of the major parties has nominated someone that unconventional in my lifetime (I’m knocking on the door of 50), if ever.

There’s a first time for everything, I guess. It’s possible, I suppose, that a Republican nominating electorate that chose Mitt Romney a mere three years ago and has gone with the establishment guy in every contest in living memory except 1964 – an unmitigated disaster for the party – has simply gone off the deep end. But it’s much more likely that we’re seeing a catharsis that will be out of the party’s system by time the primaries roll around.

The seeming implosion of Jeb Bush’s campaign is surprising, given both his establishment backing and his skills as a politician. But he’s failed to separate himself from the field of not-Trumps and has made the mistake Hillary Clinton did in 2008 of running a general election campaign before securing the nomination. In particular, he’s spent his considerable early fundraising advantage building a ground game in states who won’t hold primaries for months rather than concentrating on building a firewall in New Hampshire.

Still, he’s more likely to bounce back in the manner of Kerry, McCain, and Romney than to go away like Scott Walker. The establishment will rally against Trump and Bush is the most obvious choice for them to back. John Kasich has managed to excite the public even less and Marco Rubio simply isn’t ready for prime time.

Original article

Why Hillary Clinton Was Clear Winner in First Debate

Christian Science Monitor

October 14, 2015

My impression of the first Democratic debate of the 2016 cycle comports with that of the media accounts that I’ve read: Hillary Clinton was the clear winner and, among her challengers, only Bernie Sanders made any impact at all.

Clinton has been in the national spotlight for 23 years and nearly won the nomination eight years ago. So perhaps it’s not surprising that she was far and away the most comfortable on the debate stage. But she was ready for every question and managed to avoid looking bored or condescending.

Deprived of his adoring crowds, Sanders’ pitch fell flat. He strikes me as the Democratic Donald Trump, feeding his party’s id without the slightest regard for feasibility. He’s the Underpants Gnome candidate, who seems to think simply wanting bad things go away will make it so.

Sanders’ counterpoise is Jim Webb, the Democratic John McCain. Like the 2008 Republican nominee, he’s long taken positions that put him at odds with his own base. And, sadly, both have gotten much crankier in recent years. I half expected him to tell the other candidates to get off his lawn last night.

Lincoln Chafee is the Democratic Lindsey Graham, well qualified for the job in terms of experience but lacking the personal gravitas to be taken seriously.

My favorite of the candidates is Martin O’Malley, who’s serving as the Democratic John Kasich. As a former mayor and governor, he has tons of executive experience and his record is one that would appeal to swing voters in a general election campaign. He comes across as likeable but, alas, didn’t do anything last night likely to connect him with the voters.

Clinton is the odds-on frontrunner. Nothing last night even put a slight dent in that. And, indeed, Sanders’ seeming dismissal of the email scandal as a relevant issue may well have given her a boost.

Original article

Why Republican Presidential Re-runs are Faring Badly

Christian Science Monitor

September 1, 2015.

Historically, the Republican Party has tended to nominate the candidate whose “turn” it is. Typically, that has meant someone who made a strong run previously. Mitt Romney in 2012, John McCain in 2008, Bob Dole in 1996, George H.W. Bush in 1988, Ronald Reagan in 1980, and Richard Nixon in 1968 all fit the pattern. In the modern era, George W. Bush in 2000 has been the only exception. (The races not mentioned above all featured a sitting president.)

Thus far in the 2016 cycle, though, candidates who made a strong showing—or at least had a boomlet—in previous cycles are doing horribly. Yesterday, Rick Perry, who was briefly a frontrunner in 2012 before his campaign imploded over a series of gaffes, cut his paid campaign staff in Iowa to one. His Iowa co-chair has “has moved back to the team for presidential candidate Rick Santorum, the candidate she supported in the 2012 cycle.” Alas, Santorum, who won Iowa and finished second overall last time, isn’t faring much better than Perry this go-round.

Look at the RealClearPolitics poll aggregate:

RCP-GOP-Nomination-20160901

All the usual caveats about early polling notwithstanding, the re-runs are mere blips.

John Kasich is technically the leader among the re-runs, since he made a short-lived if not-much-remembered run in 2000. At the time, he was a mere Congressman, if the chairman of the Budget Committee. He’s now governor of a major swing state. He’s at 4.7 percent, lagging a failed tech executive whose only political experience was a 10-point loss to Barbara Boxer for Senate.

Mike Huckabee has made two reasonably successful runs, including technically finishing second to McCain in 2008 (Romney was the real runner-up but dropped out once it was clear McCain would be the nominee, while Huckabee hung around to rack up meaningless votes). He’s at a whopping 4.3 percent, good enough for 9th place.

Perry is a 1.3 and Santorum at 1.0. That puts them statistically tied with my dog Molly.

None of the top seven candidates at the moment have made a previous run for the Republican nomination. Donald Trump has flirted with several runs for president, including actually running for the Reform Party’s nod in 2000. Ben Carson never ran for anything. Jeb Bush is, of course, the son and brother of previous Republican presidents but is making his first go of it himself. Ted Cruz, Scott Walker, and Marco Rubio are all relative newcomers. Cruz came onto the national scene with his successful 2012 Senate campaign. Walker won the Wisconsin’s governor race in 2010, having failed in 2006.  Rubio also won his first major election in 2010.

Again, it’s early. It’s possible that Kasich will emerge as the last serious candidate standing not named Bush and go on to win the thing. But the current mood of the Republican electorate is not only anti-politician, it’s anti-anyone who has run before.

Original article

Yes, Red States are Attracting Blue-State Voters. But They Don’t Stay Red

Christian Science Monitor

July 28, 2015

An unsigned American Interest article titled “Red States Eat Blue States’ Lunch” reports:

The West and the South – not California or the Northeast – are apparently the places to move these days. In a piece on Denver’s economy, the WSJ provides a list of the urban areas that have been receiving the most in-migration since 2010. Houston, Dallas, Austin, Phoenix, Denver, San Antonio, Charlotte, Atlanta, Tampa, and Orlando make the top ten. Texas, North Carolina, Arizona, Florida, and Georgia are generally red states, and though Colorado is nominally a blue state, its business climate more closely resembles that of Texas than that of California.

[...]

As Joel Kotkin has argued many times, red states are eating blue states’ lunch, stealing away talented young workers and innovative businesses by offering lower costs of living, higher qualities of life, and more favorable tax and regulatory environments than anything coastal blue citadels can offer. And this is happening despite blue cities’ attempts to remain culturally enticing.

While the coastal cities have several advantages – among which are the coasts themselves – there’s an attractive value to more space, lower housing costs, lower taxes, and less regulation. The topic is getting a lot of attention. See, for example,  “Is Life Better in America’s Red States?” in the NYT from January and “1,000 People a Day: Why Red States Are Getting Richer and Blue States Poorer” from the Heritage Foundation from June.

But here’s the thing: While the near-term political effect of this has been to increase the power of red states, the longer term impact has been to turn them into purple and even blue states. First, by definition, the in-migrants to these cities and states are from somewhere else. While some are coming from the rural areas and poorer red states, many are coming from the Rust Belt and even the coasts. That brings with it – again, by definition – more cultural diversity and less provincialism. Second, clustering of high talent, high-earning individuals brings with it an increased desire for infrastructure and regulation to accommodate the new metropolis. And, given that someone has to pay for that, increased taxes come with that.  Indeed, as Richard Florida notes in the above-linked NYT piece that “voters in four red states – Alaska, Nebraska, South Dakota, and Arkansas – supported referendums in November to raise their state minimum wage. And not just by a little. Controlling for the cost of living, they will have wage floors that are higher than those of many blue states.”

Most if not all of the cities listed in the WSJ piece (Houston, Dallas, Austin, Phoenix, Denver, San Antonio, Charlotte, Atlanta, Tampa, and Orlando) are purple if not already blue. The same holds true of many states on the list. Florida is a classic swing (purple) state, but it’s gone blue the last two cycles plus 1996 and 1976; in most cases, the margin has been thin either way. North Carolina went for Obama in 2008 (if just barely, 50 to 49) and just barely snapped back into the red column in 2012 (50 to 48). Georgia has mostly been red but went blue in 1992, 1980, and 1976 – albeit with a native son (Jimmy Carter) on the ticket in the last two. Arizona is perhaps the only true red state on the list, having voted Republican in all modern presidential elections save 1996 and has actually increased its margins in recent years.

Original article

The Domestic Side of National Security

The Hill

February 10, 2015

The Obama administration has released its long-awaited update to the “National Security Strategy.” While ostensibly a report to Congress on the president’s priorities for safeguarding U.S. interests globally, around which to base funding and procurement discussions, a fair amount of the domestic political agenda inevitably creeps in. This go-around, though, this was flipped on its head; the domestic focus predominates.

The second sentence of the report posits that, “America’s growing economic strength is the foundation of our national security and a critical source of our influence abroad,” and a remarkable amount of text that follows is related to that premise. Before any mention of external threats or challenges, we’re told that “we have created nearly 11 million new jobs during the longest private sector job growth in our history,” that “[u]nemployment has fallen to its lowest level in [six] years,” “[w]e are now the world leader in oil and gas production,” and “[w]e continue to set the pace for science, technology, and innovation in the global economy.”

Flattery abounds, with kudos given to our “young and growing workforce” and the “entrepreneurial spirit of our workers.” We’re told that “[o]ur higher education system is the finest in the world” and that “we continue to attract immigrants from every corner of the world who renew our country with their energy and entrepreneurial talents.” It shouldn’t come at all as a surprise, then, that “[o]ur economy is the largest, most open, and innovative in the world.”

The first mention of conflict is to proclaim that “we have moved beyond the large ground wars in Iraq and Afghanistan,” followed by a nod to “a military whose might, technology, and geostrategic reach is unrivaled in human history.”

To be sure, that’s followed by serious talk about violent extremism, the terrorist threat, cybersecurity, a resurgent Russia, a nuclearizing Iran and various other honest-to-goodness national security issues. And, as I argue elsewhere, the agenda set forth for global “leadership” is unbounded by geography or time.

Still, seldom a paragraph and nary a page goes by without a sop to the American public. Indeed, the very “model of American leadership” extolled in the document is allegedly founded on “the values of the American people.” The “American exceptionalism” the president rejected early in his tenure is now enthusiastically embraced and attributed at least partly to “the grit, talent, and diversity of the American people.”

Congress, the ostensible target audience of the report, gets a few shout-outs as well, although they’re mostly either perfunctory or backhanded. We’re told that the document “serves as a compass for how this administration, in partnership with Congress, will lead the world though a shifting security landscape.” That the institution has just turned over to the opposition party, which opposes much of the agenda set forth in the document, is left unstated.

There’s an olive branch in that direction, with a note that “[m]any achievements of recent years were made possible by Democrats and Republicans,” but it’s followed by the caveat that “we face continued challenges, including political dysfunction in Washington that undermines national unity, stifles bipartisan cooperation, and ultimately erodes the perception and strength of our leadership abroad.” While it’s perhaps axiomatic that “American leadership is always most powerful when we are able to forge common ground at home around key national priorities,” it’s neither appropriate for a national security strategy nor a circumstance that occurs in a vacuum.

The economy has substantially rebounded from the Great Recession and the “National Security Strategy” mentions this fact repeatedly. It professes to build “on the progress of the last [six] years, in which our active leadership has helped the world recover from a global economic crisis and respond to an array of emerging challenges.” A couple pages later, we’re reminded, “[i]n the last [six] years alone, we arrested the worst financial crisis since the Great Depression and catalyzed a new era of economic growth.”

Despite the fact that “economy is the largest, most open, and innovative in the world” and “an engine for global economic growth and a source of stability for the international system,” the administration is “investing in a new foundation for sustained economic growth that creates good jobs and rising incomes.” In turn, this requires an impressive domestic agenda, including “expanding access to early childhood and affordable higher education,” the “further acceleration of our manufacturing revolution” to “create the next generation of high technology manufacturing jobs,” “immigration reform that combines smart and effective enforcement of the law with a pathway to citizenship,” “quality, affordable healthcare to more and more Americans,” “opening markets and leveling the playing field for American workers and businesses abroad” and a “more modern and reliable infrastructure.”

Sustaining our “competitive edge” in technology, which in turn “secures our military advantage, propels our economy, and improves the human condition” has long been part of our national security strategy, going back at least to the Manhattan Project and the “missile gap.” Still, the agenda which flows in this iteration is impressive indeed; it “requires robust Federal investments in basic and applied research”; that we somehow “strengthen science, technology, engineering, and mathematics (STEM) education to produce tomorrow’s discoverers, inventors, entrepreneurs, and high-skills workforce”; and translates into “preparation and compensation for STEM teachers, broadband connectivity and high-tech educational tools for schools, programs that inspire and provide opportunities for girls and underrepresented minorities, and support for innovation in STEM teaching and inclusion in higher education.”

In a section on homeland security, the administration posits that they “have countered terrorism and transnational organized crime” — very much traditional national security threats — “in ways that enhance commerce, travel, and tourism.” While the combination is surely desirable if true, one would think a national security strategy might focus on lives saved rather than tourists attracted as the key metric.

Climate change, legitimately a national security issue if one not amenable to traditional hard power solutions, gets 15 mentions, including inclusion among the eight “top strategic risks to our interests” that they administration will “prioritize.”

Indeed, even “improv[ing] our banking practices and forg[ing] ahead with regulatory reform” are somehow matters of national security.

No section of the report is more indicative of the predominance of U.S. domestic policy than the one entitled “Advance Equality.” We’re told that “American values are reflective of the universal values we champion all around the world.” In addition to ones that, while certainly not universal, are widely embraced at home “including the freedoms of speech, worship, and peaceful assembly; the ability to choose leaders democratically; and the right to due process and equal administration of justice,” the document declares that “[w]e will be a champion for communities that are too frequently vulnerable to violence, abuse, and neglect — such as ethnic and religious minorities; people with disabilities; Lesbian, Gay, Bisexual, and Transgender (LGBT) individuals; displaced persons; and migrant workers.”

Now, I happen to think that’s a noble sentiment. But, given the fact that we’re simply not going to place a premium on LGBT rights in our negotiations with our closest allies, let alone our adversaries and frenemies in less savory cultures, there’s simply no reason but domestic politics to include these platitudes in a national security strategy. While they may be aspirational, publicizing them in this manner is likely counterproductive in the actual conduct of U.S. foreign relations.

Similarly, the document makes repeated references to “the political and economic participation of women and girls — who are too often denied their inalienable rights and face substantial barriers to opportunity in too many places.” That focusing on the particular plight of women and girls is critical to development efforts is supported by years of social science research. The administration has, to its credit, made this a point of emphasis from the outset, notably during Hillary Clinton’s time at the helm in Foggy Bottom. But, again, the intended audience here are American voters, not the heads of government in places where we routinely overlook horrific human rights abuses — much less a second-class role for women — in the furtherance of other interests.

Public-facing foreign policy documents like the “National Security Strategy” naturally have many audiences and the president’s employers, the American public, are certainly among them. Selling his national security policy — which after all requires the lion’s share of the discretionary budget — in terms that appeal to their interests, including the impact on their pocketbooks, is perfectly reasonable. But this document goes well beyond that, sending political messages at best tangentially related to security while failing to take seriously the business of prioritizing our national interests. And it seeks to score political points while poking a finger in the eye of the party that controls the purse strings, making the restoration of “the bipartisan center that has been a pillar of strength for American foreign policy in decades past” just a bit more difficult.

Original article

Did Obama Have Authority for Immigration Action? Justice Memo Raises Questions

Christian Science Monitor

November 21, 2014

The secretary of Homeland Security and the counsel to the president (OLC) directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated Nov. 19, they found he did not. On Nov. 20, he did it anyway.

Josh Gerson for Politico (“White House releases immigration legal opinion”):

The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.

33-page Justice Department legal opinion made public just hours before Obama spoke concluded that he doesn’t have the legal authority to offer broad deportation relief to parents of so-called Dreamers – people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.

“As it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion,” Justice Department attorney Karl Thompson wrote in the Office of Legal Counsel opinion.

The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama’s initial 2012 DACA program before it was enacted.

Thompson’s legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. “The Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,” Thompson wrote. “An agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”

A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were “not legally available” to the president, largely because it would be building one set of executive actions upon another.

On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.

Recommended: How much do you know about the US Constitution? A quiz.

It’s worth noting, too, that OLC – rightly in my view – found that the president does have the “authority to prioritize the removal of certain categories of aliens over others,” particularly in light of inadequate funding to pursue the removal of all of them. But it specifically found that “the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion” precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:

[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency ”‘has relied on factors which Congress had not intended it to consider’” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, “ ‘consciously and expressly adopt a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion’ ”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws – including the Constitution, which takes precedence over other forms of law”).

On the other hand, it’s more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Mr. Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:

However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama’s move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.

“We were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,” said the senior official who spoke on condition of anonymity.. “This was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be….slightly different…We thought it was important to tie it to a Congressional policy.”

The difference in the actions taken by Reagan and the elder Bush and that taken by Obama is that the former were implementing the clear intent of congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.

Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I’m not calling for the president’s impeachment. Aside from it being politically untenable, the fact that Obama’s action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected – twice – president should be removed from office for continuing a trend. But this nonetheless serves as a further and rather substantial weakening of the separation of powers.

Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama’s move will find outrageous. At that point, it’ll be too late to complain.

Some of the commentary I’ve seen on this blames congressional Republicans for forcing the president’s hand here. While they certainly deserve criticism for a lot of things, that notion doesn’t hold water. Specifically, multiple people have argued that all that needed to happen to have avoided Obama’s action was for House Republicans to pass the bill passed by the Senate. Indeed, the president himself said that in his speech. But that stands the Constitution on its head. We pass laws in this country when they’re passed by both Houses of Congress and signed by the president. The fact that the House is predisposed not to pass anything a Democratic president proposes is frustrating; that doesn’t allow the president to simply enact said proposals by executive fiat.

UPDATE: Doug Mataconis correctly notes that, contrary to speculation ahead of the speech, “the plan announced last night does not extend relief to the parents of DACA children.” It nonetheless goes well beyond existing law. As described by the lead WaPo story on the order,

Under Obama’s plan, undocumented parents of U.S. citizens and legal permanent residents would qualify only if they have lived in the country at least five years – since Jan. 1, 2010. The administration said it will be ready to begin taking applications in the spring, and that those who qualify will be granted three years of deportation relief, meaning they would be protected through the first year of Obama’s successor in 2017. It would be up to the new administration to determine whether to continue the program or eliminate it.

The new deportation protections are a year longer than they are under an existing Obama administration program, started in 2012 for younger immigrants, known as Deferred Action for Childhood Arrivals (DACA).

Officials said that the DACA program also would be revised to provide three years of relief and that they would change the date by which DACA applicants must have arrived in the United States from June 15, 2007, to Jan. 1, 2010, to conform with the program for parents.

Many of those who are granted administrative relief will be eligible to get Social Security numbers and work permits, officials said.

Administration officials also said the president’s new policies would create visas for immigrants who can show that they are investing economically in the United States and for workers in some high-tech fields.

I don’t see how this is anything other than Obama enacting essentially all of the DREAM Act by fiat.

UPDATE 2Walter Dellinger, who served as acting solicitor general under President Clinton, cites the same memo and finds no problem with Obama’s decree.

[T]he idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As theJustice Department legal analysisthat was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.

Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it.

[...]

As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do” – setting priorities for deportation enforcement.

Let’s be clear about what the administration has not done in this opinion. No one has been granted “amnesty,” either literally or functionally. And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress. On the contrary, the legal opinion rejects a second proposed exercise of discretion – deferring deportation of the parents of “Dreamers” – that Justice concluded cannot be said to carry out priorities established by Congress.

But that doesn’t address the portions of the opinion that I’ve quoted above. Obama is going well beyond simple discretion in taking action that Congress has ordered him to execute; he’s deciding to ignore portions of existing law and act as though an unpassed law had been passed. Mr. Dellinger continues:

In cases such as Heckler v. Chaney (1985), the Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the “special province of the Executive.” This is especially clear in the area of immigration. As the court recently noted in Arizona v. United States (201w), some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.

In approving the lawfulness of part of the proposed deferred action, the opinion released Thursday night from the Justice Department’s Office of Legal Counsel, or OLC, is careful to reaffirm that officials may not abdicate their statutory responsibilities. In particular, the opinion states that Congress’s endorsement of certain deferred-action programs does not mean that such programs can be extended to any class of aliens. The proposals were carefully vetted to ensure that the expansion of deferred action to the new categories was consonant with congressional policy.

But note that the portions of the OLC memo that I’ve quoted are also based on Chaney and find the opposite of what Dellinger advocates. Regardless, he argues that they were likely overly cautious:

He points us to a forthcoming posting by Marty Lederman that has since posted. It’s extensive and mostly addresses hysterical arguments about “amnesty” and “monarchy” that I’m not making. Germane to my concerns, however, he argues:

1.  It’s not “unilateral” executive action.  Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion.   See especially pages 4-5 of the opinion of the Office of Legal Counsel.  And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).  On a first read, OLC’s analysis of the scope of DHS’s statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited.  Whether or not OLC is correct in all of the particulars of its analysis, however – a question that, as mentioned above, I’ll leave to others who have greater expertise than I do – the important point is this:  What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.

But, as I’ve already noted, pages 6-7 put some rather strong caveats on that argument.

2.  It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority.  Indeed, it’s not an exercise of constitutional “executive power” at all:  The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.  (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is “rooted” in the President’s constitutional duty to take care that the law is faithfully executed:  The point of invoking the “Take Care” Clause, however, is that implementing such enforcement priority decisions is “faithful” to the laws Congress has enacted.)

But the memo likewise concludes that much of the action contemplated and some of that taken goes beyond the “Take Care” discretionary authority.

3.  It does not “cut out Congress” – indeed, it relies upon statutory authority.  Nor does it contradict what Congress has prescribed.  Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.  Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program):  Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32).

But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law – presumably, by a veto-proof supermajority – overturning his order.

Dellinger and Mr. Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That’s why I ultimately don’t support impeachment here. But I nonetheless believe Obama’s order has further weakened our system of checks and balances and, indeed, the rule of law.