Posted by Brad @ 10:57 am on April 28th 2011

Quote of the Day

We hear a lot about that evil Congress holding the government hostage to force the hand of the President. But let’s also remember that one of the biggest drivers for the implosion of the concept of civil liberties in America today is, in fact, a legislative branch that is less recalcitrant than in its entire history, and certainly less than the system was designed to not only accommodate, but to encourage.

“The three branches have been battling one another throughout our history. It’s like rock paper scissors. And it’s sort of like the scissors have decided they don’t want to play anymore.”

—Michael W. Macleod-Ball, Chief of Staff of the ACLU, D.C. Office, in an interview with Conor Friedersdorf


  1. Part of CF’s ongoing series on the issue, which ought to be required reading for any small-L libertarian…indeed, for any advocate of the US Constitution. The introductory article here.

    Comment by Rojas — 4/28/2011 @ 11:11 am

  2. I recently finished Eric Posner and Adrian Vermeule’s “The Executive Unbound” on the topic of the legislative branch checking the executive branch. Or rather, the topic of the trend in history clearly showing the failure of the legislative branch to check the executive branch in times of war or a “crisis.” A rather good review can be found here:

    It’s helped fuel part of my growing cynicism on the civil liberties and foreign affairs front. As long as there’s some sort of neoconservative/interventionist consensus among the political elite I don’t think you’re going to get meaningful shifts in government policy, regardless of the tides of elections. And I think it’s difficult to expect Congress to step up and fight if the public isn’t with them in the fight. And if the public were in support of Congress stepping up to restrain the executive on civil liberties or foreign affairs I’d expect the President’s advisers to note that ahead of time and avoid confrontations with the public. It all gets back to changing public opinion.

    Kucinich is expected to offer a resolution under the War Powers Act regarding Libya after the House returns from its Easter/Spring Break recess. It will be interesting to see how that vote develops. An earlier resolution this year on Afghanistan failed 93 to 321. A few of the liberal Yes votes have already voiced their support of the President in Libya, so the number could go south of 93 on this round. On the other hand, it could be an opportunity for Republicans to voice opposition to Obama.

    Comment by FreedomDemocrat — 4/28/2011 @ 11:56 am

  3. Your “changing public opinion” thing is, on most levels, right, of course…but it’s also decidedly unhelpful. Why yes, if a critical mass of the public agreed with all my positions, that would be the best possible outcome for me. Discussion over?

    No, I don’t think it is. For one, what public you’re talking about is unclear. The opinions of the entirety of the American population tend to be both different, more amorphous, and in a way less important, than the opinions of those that vote, and in turn those opinions are different, more amorphous, and in a way less important than those that vote with regularity and follow politics closely, which in turn are different and in a way less important than those with money, or those who are “opinion leaders”, or those with the power to make their opinions matter in a way that that first, entire set of people cannot (will not, do not).

    But secondly, I think it’s just too pat, in that it takes “public opinion” as something like the weather, and it discounts the role of leadership. Frankly, a very very small amount of people manage to change, radically, the views of the entire country on a relatively regular basis. So there’s a return on investment question – frankly I think a small but effective group of opinion-leaders in Congress who had both the belief in civil liberties and the ability to push that agenda would be worth more for its cost than an effort to “convince America”, whatever that means.

    All of which is to say, OF COURSE you have to change public opinion in a representative democracy to effect change. But that’s both a very obvious, and not particularly helpful, insight.

    Comment by Brad — 4/28/2011 @ 12:04 pm

  4. Horrible but true: the only thing that would persuade the American public that they have “skin in the game” on issues like Presidential war powers and overseas use of force would be the restoration of the draft.

    And that price, in terms of civil liberties, is simply too high.

    FD is right. Our citizens place very little value on the lives and liberties of people who aren’t them.

    Comment by Rojas — 4/28/2011 @ 1:18 pm

  5. >Why yes, if a critical mass of the public agreed with all my positions, that would be the best possible outcome for me.

    My point is that in today’s partisan world you’re not going to get Congress or the Supreme Court to care about due process or separation of powers if the Presidency is expanding its powers to do things that members of Congress and the Supreme Court individually agree with. I think we’re fighting up a flawed Beltway Consensus.

    To bring up some ancient history go back to the 1830s. When Andrew Jackson vetoed the renewal of the national bank he was loved by states rights advocates across the South. This was a shift from a few years before when many were critical of his stance against South Carolina’s nullification of the tariff. Later, many of these same so-called limited government activists probably cheered him on when he ignored the Supreme Court and kicked out various Native American tribes in the Southeast. Because people aren’t always consistent. But surprisingly a number of them split with Jackson when he attempted to withdraw the federal government’s reserves from the national bank without Congressional approval before the bank’s charter had expired. Were they anti-bank? Certainly. But they actually felt that respect for the rule of law and the separation of powers was more important than expanding the Presidency’s powers in a war against the national bank. This faction later formed one of the pillars of the Whig Party and produced the decidedly un-Hamiltonian/un-nationalist John Tyler as the first accidental President.

    That was then, this is now. Can you really see a push of members of Congress who support intervention in Libya but care deeply, very deeply about getting Congress to approve action first? People who support Obama on Libya are, generally, avoiding the issue of going to war without Congressional input. I feel the same is generally true with civil liberties. People who support the war on terror in the big picture aren’t going to quibble with how we go about it in the details.

    Comment by FreedomDemocrat — 4/28/2011 @ 2:27 pm

  6. Back to Conor’s series:

    What’s sort of F’d up is I’ve never considered myself a single issue or litmus test voter, and indeed tend to frown on those who are (in my experience, usually either gun control folks or abortion opponents). I’m very much inclined to judge candidates on a spectrum, with strategic considerations in play as well. My voting record looks like this:

    1996: Bob Dole, although I wasn’t really opposed to Clinton too much.
    2000: John McCain (primary), Harry Browne (LP) (general), although I wasn’t really opposed to either Gore or Bush too much.
    2004: John Kerry (general)
    2008: Ron Paul (primary), Barack Obama (general).

    Which I think, at the very least, would indicate that I’m not an absolutist on any one thing – or if I am, I can’t think of what the one thing in question would be.

    Yet I have developed a few just very basic disqualifiers for a candidate, which I don’t take to be absolutist so much as a yardstick for just a bare minimum level of acceptability. The main one: any candidate that advocates torture, for instance, is automatically disqualified from my vote. Any candidate that believes that due process and the entire paradigm and tradition of American jurisprudence does not apply to any subset of the American citizenry is another.

    To my ears, those don’t sound like absolutist stances on political questions – i.e. I don’t take those as “here is a question on which there is room for debate, over which reasonable people might disagree, and I am going to out-of-hand discount the entire spectrum of rational people who disagree with me.” Rather, they strike me as minimal job requirements – like the “Are you registered to work in the United States?” check box on job applications. It never even really occurred to me that I would even have to SAY that “explicitly advocating the torture of American prisoners” is a disqualifier, any more than I feel I have to say that a candidate for President who makes explicit his desire to disband Congress via executive order once in office disqualifies him.

    To my mind, for instance, there were many political reasons to vote against George W. Bush in 2004, and I was perfectly happy to argue them, but it wasn’t even really an open question that I could never cast my ballot for him because he had proven himself to be, literally and by definition, unfit for the office. Again, not in a “I don’t like the guy” way, but in a “he is actively opposed to and destructive towards the basic foundations of America’s system of government” way.

    And here I sit heading into 2012, and what had began as just unspoken assumptions about the foundations of American democracy, and then were forced to be explicitly stated minimum standards for disqualification from the office, have now become questions that are not only political, but are, in fact, politically moot, in that they are now more or less settled among the candidates who might compete for my vote. Such that my very basic minimum standard now automatically disqualifies practically the entire field.

    It’s kind of like, for me, assuming “I don’t believe a candidate who is in a persistent vegetative state and thus not legally of sound mind or body can be considered a viable candidate for the Presidency”, and then having to actually say that out loud, and then having to vote in an election where, in fact, one of the candidates WAS legally brain dead and unresponsive to stimuli, and then suddenly comes the cycle when they all are. And then everyone around me is like “lighten up dude – clearly one of these coma patients is preferable to the other.” At this point, I’m even more befuddled than angry. I would no sooner find myself able to vote for a candidate who believed in – and exercised! – the power of the executive to unilaterally order the execution of an American citizen without trial than I would a foreign leader trying to run for the office, or a coma patients. It just doesn’t compute.

    So yeah, the civil liberties primary? I don’t even know that that’s an open question at this point – there are precisely two candidates who even qualify to run. And come general election, neither will be there, at which point I have to ask myself – how do you vote in an election in which no candidates are running?

    Comment by Brad — 4/29/2011 @ 11:58 am

  7. > And come general election, neither will be there, at which point I have to ask myself how do you vote in an election in which no candidates are running?

    Don’t. Or find a local/congressional/state election that’s important to you, become active, and vote in that and deliberate don’t vote in the Presidential.

    Comment by FreedomDemocrat — 4/29/2011 @ 12:12 pm

  8. Here’s a question on the power of the presidency. Does the President have the ability to unilaterally close Gitmo and determine what to do with the detainees? How would you feel if he did this? What if Congress tried to block him?

    Comment by FreedomDemocrat — 4/29/2011 @ 12:14 pm

  9. I’ll probably wind up just voting Libertarian, I suppose. My vote counts more for them than it would for either major candidate anyway.

    As to Gitmo: Congress is unable to pass such a law, as the military (and thus Gitmo) is under executive control. What they passed instead was a law not allowing any funds to be used for the transfer/trial etc. I am not enough of a legal expert to know for sure, but I am nearly certain that if the executive really wanted to, he could find a (legal) way around that. That’s more a procedural question though – I don’t view the existence of Gitmo as, itself, a disqualifer in the way I’m talking about, although it’s admittedly close. I believe the ESTABLISHMENT of it was (just as the executive unilaterally deciding to not adhere to international treaties to which we are legally signed, i.e. the Geneva Convention), but, although I am inclined to vote against on his failure of leadership and what I believe to be a lack of political will (rather than a structural inability), I am willing to for the most part place that question in the real of political dispute, rather than refusing to adhere to the basic rules of the office in the same sense as my other examples.

    Of course, I then vote against him on the matter from a political justification anyway, so it’s sort of semantically splitting hairs on that one.

    Comment by Brad — 4/29/2011 @ 12:24 pm

  10. I’ve never quite understood the legal basis of Congress’ attempt to restrict funding for the transfer of the detainees, and just assumed it was a pandering and unenforceble tactic that they would simply beat the CinC about in the press if he violated it. If the President uses military assets to effect the move, I don’t see how Congress can possilby expect to restrict that. If they can, then I would have to assume that they could micromanage the movement of every conceivable military unit, and I am pretty sure the Constitution is not set up that way. What would prevent them from using the same logic to restrict, for instance, the use of standard operational funding to move Aircraft Carrier XX from the Mediterranian to the Arabian Gulf?

    Comment by Jack — 4/29/2011 @ 2:45 pm

  11. >What would prevent them from using the same logic to restrict, for instance, the use of standard operational funding to move Aircraft Carrier XX from the Mediterranian to the Arabian Gulf?

    It would probably cause some sort of constitutional crisis. The Supreme Court would stay out of it as fundamentally political. Congress would either have to man up and impeach a President who tried to violate it or back down and admit they can’t do it.

    Comment by FreedomDemocrat — 4/29/2011 @ 3:44 pm

  12. Ill probably wind up just voting Libertarian, I suppose.

    What if Wayne Allen Root is the LP nominee?

    Comment by Rojas — 4/29/2011 @ 4:50 pm

  13. Well, the rent is too damn high.

    Comment by Brad — 4/29/2011 @ 10:58 pm

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