Friction and inertia in government are frustrating necessities.
I have been amazed to hear this last week those on the left who have been attacking Senate filibuster rules. From the President during the State of the Union to Paul Krugman on “This Week” Democrats are shocked that it might actually require 60 votes to get massive and important reforms through the Senate. They seem to be apalled that the Republicans have been using the last lever of power that they can use. Now that Scott Brown has been elected in Massachusetts that is bound to change, but nonetheless the filibuster remains the most potent weapon a minority has. Our system of government is based upon the idea of the protection of the minority. Our Constitution seeks to protect those who don’t have power or are presently out of power from the powerful. While it is easy to dream about a political system is which reforms are passed overnight with a simple majority such a system would actually be terrifying. Imagine that every time a new party came to power they could rebuild the system and rewrite all the rules. Eventually one person or party would find a way to perpetuate themselves in power.
American politicians and pundits have an astoundingly short memory. Let us recall that just this last decade, when George W. Bush was in office, the Democrats were filibustering almost every court appointment the former President made. They refused to give well qualified judges an up or down vote because they knew it was the only way to stop them from getting confirmed. They somehow feel that it is acceptable to leave court appointments unfilled, but it is not acceptable to slow down debate on an issue as substantive and as significant as healthcare. While I have been never been a John McCain supporter, one great moment of leadership came when he along with other Republican and Democratic Senators refused to change Senate filibuster rules when the Republican leadership wanted to resort to the “Nuclear Option”. I’m glad that ruled wasn’t changed.
Friction and inertia in government are frustrating necessities but it is what has allowed the American Republic to stand for 220 years and it will only make us stronger.
October 02, 2009 The Olympics, Obama, and the Permanent Campaign
Chicago has lost its Olympics bid, despite Obama’s insertion into the process. People are shocked because they figured that Obama would fly in if and only if the deal was done.
But why? That assumes a typical allocation of the presidential prestige. President Obama has been anything but typical in the use of that asset. Let’s remember that this is the President who in the last nine months has appeared on both 11:30 PM talk shows. This is the President who can be seen on TBS in a spot advertising the upcoming George Lopez Show. This is the President who has had more primetime news conferences and more joint addresses to Congress than any president up to this point in his campaign tenure. This is the only President to pull a “Ginsberg” (and my guess is that he’ll set the record for that when it’s all said and done). This is the President who has gone out on the campaign trail again and again and again, even though the election is long since passed. This is the President who puts himself – and his family – on the cover of all sorts of supermarket and newsstand magazines month after month. This is the President who never hesitates to inject himself into the public consciousness for any little reason he likes.
This is the permanent campiagn. We have talked about its imminence for years. Well, now it’s here and this is what it looks like. This is what a President does in it. Previous Presidents would only put themselves out there in this kind of diplomatic situation if there was no more campaigning, lobbying, and cajoling to be done. But this President sees himself above all as the chief campaigner, lobbyist, and cajoler. That explains so many of the ways in which the Obama Presidency differs from previous administrations (Democratic and Republican alike), and it also explains why we should not be so shocked by this result. This particular campaign failed.
I, for one, am exhausted by our new permanent campaign. That might sound strange coming from somebody who runs the Horse Race Blog, but it is true. The ominpresence of the Obama campaign apparatus is, frankly, wearing me down. I can’t get away from him or it, even in my down times. Watching the Office on TBS used to be a real pleasure for me and the missus, but now we must be interrupted by the President of the United States cracking lame jokes at us in the promotion of a second-rate comedian. There is no escape.
It’s not simply because enough is enough, though that is part of it. It’s also because he is different now. He holds the executive authority of the United States within his person at this moment, and it is sobering to see the holder of such vast power on the cover of a magazine urging us to follow his fitness regime. By continuing the permanent campaign into his tenure so thoroughly, he has given new meaning to the phrase “big government.” When he is on the cover of Men’s Health telling us how to work out, in a certain sense, the federal government’s executive authority is on the cover of Men’s Health telling us how to work out.
And so it continues today. What should have been a story about Chicago – or better yet, Rio (good for you, Rio!) – is now a story about…Obama. Of course. Because just about everything in the public sphere must, must become a story about Obama. Because Obama injects himself and his campaign appartus/mindset/worldview into everything. And so, in this case, what would otherwise have been a “mere” rejection of Chicago and Mayor Daley has now become a rejection of the entire country. Why? Because of his decision to perpetuate the permanent campaign while holding the power of the executive.
I was hesitant to place a bet on the outcome of the health care debates, but I’ll place one here. Sooner or later, the American people are going to say, “Enough is enough” with this constant, incessant politicking that is inevitably built around the specialness of Barack Obama. This is not the way past presidents have behaved, and I believe for good reason: the old way is the way the people like it. If this President continues to inject himself into every little thing – such as he did with this Olympian blunder – at some point he is going to exhaust the country, thereby losing the goodwill of his fellow citizens that he still enjoys today.
Mr. Obama: please remember that you’re just the President. It’s a big deal, but it’s not that big of a deal. Chester Arthur was President. For goodness sake, Warren Harding was President, and his share of the vote was much larger than yours. Thomas Jefferson’s tombstone doesn’t even mention his eight years as President. Your current office isn’t discussed until Article TWO of the Constitution. Take the hint, and tone it down!
The following is adapted from a lecture delivered on June 5, 2009, in Washington, D.C., in the “First Principles on First Fridays” lecture series sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship.
“WOULD WE be far wrong,” President Lincoln asked in a special message to Congress in 1861, “if we defined [sovereignty] as a political community without a political superior?” Maybe that’s not exhaustive, but it comes on good authority. And notice that for Lincoln, sovereignty is a political or legal concept. It’s not about power. Lincoln didn’t say that the sovereign is the one with the most troops. He was making a point about rightful authority.
By contrast, sovereignty wasn’t an issue in the ancient world. Cicero notes that the ancient Romans had the same word for “stranger” as for “enemy.” In the ancient world, people didn’t interact with foreigners enough to think about their relation to them except insofar as it meant war. Nor was sovereignty an issue in medieval Europe, since the defining character of that period was overlapping authority and a lot of confusion about which authority had primary claims. No one had to think about defining national boundaries. This became an issue only in the modern era, when interaction between different peoples increased.
The first important writer to address sovereignty was Jean Bodin, a French jurist of the late 16th century. In his work, Six Books of the Republic, Bodin set out an understanding of sovereignty whereby the King of France represented an independent political authority rather than owing allegiance to the Holy Roman Emperor or to the Pope. In the course of developing this argument, Bodin also advocated religious toleration and insisted that a monarch can neither seize property except by law nor raise taxes except by the consent of a representative body. He was in favor of free trade, and he insisted on the monarch’s general obligation to respect the law of nature and the law of God. His main practical point was that the government must be strong enough to protect the people’s rights, yet restrained enough not to do more than that. Subsequently, I might add, Bodin wrote a book about witchcraft—which he very much opposed. Witches are people who think they can make an end run around the laws of nature and of God using magical spells, and Bodin saw them as a menace.
It was not until the 17th century that the word “sovereignty” became common. This was also when people first came to think of representative assemblies as legislatures. Indeed, the word “legislature” is itself a 17th century term reflecting the modern emphasis on law as an act of governing will rather than impersonal custom. It is therefore related to the modern notion of government by consent. Significantly, it was also in this same era that professional armies came into being. Before the 17th century, for instance, there was no such thing as standard military uniforms. Uniforms indicate that soldiers have a distinct status and serve distinct governments. They reflect a kind of seriousness about defense.
The 17th century is also the period when people began thinking in a systematic way about what we now call international law or the law of nations—a law governing the relation of sovereign nations. The American Declaration of Independence refers to such a law in its first sentence: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . . .” The Declaration assumes here that nations have rights, just as individuals do.
The Sovereign Constitution
Returning to Lincoln, his understanding was that in an important sense American sovereignty rested in the Constitution. Article 7 of the Constitution declares that it will go into effect when it is ratified by nine states, for those nine states. And once ratified—once the people of those states have entered into the “more perfect Union’’ described in its Preamble—the Constitution is irrevocable. Unlike a treaty, it represents a commitment that cannot be renegotiated. Thus it describes itself unambiguously as “the supreme Law of the Land”—even making a point of adding, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Constitution provides for treaties, and even specifies that treaties will be “the supreme Law of the Land”; that is, that they will be binding on the states. But from 1787 on, it has been recognized that for a treaty to be valid, it must be consistent with the Constitution—that the Constitution is a higher authority than treaties. And what is it that allows us to judge whether a treaty is consistent with the Constitution? Alexander Hamilton explained this in a pamphlet early on: “A treaty cannot change the frame of the government.” And he gave a very logical reason: It is the Constitution that authorizes us to make treaties. If a treaty violates the Constitution, it would be like an agent betraying his principal or authority. And as I said, there has been a consensus on this in the past that few ever questioned.
Let me give you an example of how the issue has arisen. In 1919, the United States participated in a conference to establish the International Labour Organization (ILO). The original plan was that the members of the ILO would vote on labor standards, following which the member nations would automatically adopt those standards. But the American delegation insisted that it couldn’t go along with that, because it would be contrary to the Constitution. Specifically, it would be delegating the treaty-making power to an international body, and thus surrendering America’s sovereignty as derived from the Constitution. Instead, the Americans insisted they would decide upon these standards unilaterally as they were proposed by the ILO. In the 90 years since joining this organization, I think the U.S. has adopted three of them.
Today there is no longer a consensus regarding this principle of non-delegation, and it has become a contentious issue. For instance, two years ago in the D.C. Court of Appeals, the National Resources Defense Council (NRDC), an environmental group, sued the Environmental Protection Agency (EPA), claiming that it should update its standards for a chemical that is thought to be depleting the ozone layer. There is a treaty setting this standard, and the EPA was in conformity with the treaty. But the NRDC pointed out that Congress had instructed the EPA to conform with the Montreal Protocol and its subsequent elaborations. In other words, various international conferences had called for stricter emission standards for this chemical, and Congress had told the EPA to accept these new standards as a matter of course. The response to this by the D.C. Court of Appeals was to say, in effect, that it couldn’t believe Congress had meant to do that, since Congress cannot delegate its constitutional power and responsibility to legislate for the American people to an international body. This decision wasn’t appealed, so we don’t yet have a Supreme Court comment on the issue.
The delegation of judicial power is another open question today. There’s no doubt that the U.S. can agree to arbitrations of disputes with foreign countries, as we did as early as the 1790s with the Jay Treaty. But it’s another thing altogether to say that the rights of American citizens in the U.S. can be determined by foreign courts. This would seem to be a delegation of the judicial power, which Article 3 of the Constitution says “shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” This became an issue last year in the case of Medellin v. Texas, which considered an International Court of Justice ruling that Texas could not execute a convicted murderer, because he had not been given the chance to consult the Mexican consulate before his trial, as he had the right to do under an international treaty. The Supreme Court, after much hand-wringing, concluded that it didn’t think the Senate had intended to give the International Court of Justice the power to decide these questions of American law as applied by American courts. I would go further and say that no matter what the Senate intended, this is not a power which can be delegated under the Constitution. But it is no longer clear that a majority on the Supreme Court would agree.
Or consider the Spanish judges who want to arrest American politicians if they venture into Europe, in order to try them for war crimes. This is preposterous. It is akin to piracy. And not only has our government not protested this nonsense, but it has contributed to building up an international atmosphere in which this sort of thing seems plausible—an atmosphere where the old idea of a jury of one’s peers and the idea of Americans having rights under the Constitution give way to the notion of some hazy international standard of conduct that everyone in the world can somehow agree upon and then enforce on strangers.
The Loss of Sovereignty
It is important to think about these issues regarding sovereignty today, because it is possible to lose sovereignty rather quickly. Consider the European Union. The process that led to what we see today in the EU began when six countries in 1957 signed a treaty agreeing that they would cooperate on certain economic matters. They established a court in Luxembourg—the European Court of Justice—which was to interpret disputes about the treaty. To make its interpretations authoritative, the Court decreed in the early 1960s that if the treaty came into conflict with previous acts of national parliaments, the treaty would take precedence. Shortly thereafter it declared that the treaty would also take precedence over subsequent statutes. And in the 1970s it said that even in case of conflicts between the treaty and national constitutions, the treaty would take precedence. Of course, judges can say whatever they want. What is more remarkable is that all the nations in the EU have more or less grudgingly accepted this idea that a treaty is superior to their constitutions, so that today whatever regulations are cranked out by the European Commission—which is, not to put too fine a point on it, a bureaucracy—supersede both parliamentary statutes and national constitutions. And when there was eventually a lot of clamor about protection of basic rights, the court in Luxembourg proclaimed that it would synthesize all the different rights in all the different countries and take care of that as well.
So on the one hand the European Union has constitutional sovereignty, but on the other it doesn’t have a constitution. When its bureaucrats recently attempted to write a constitution and get it adopted, a number of countries voted it down in referendums. Apart from lacking a constitution, the EU doesn’t have an army or a police force or any means of exercising common control of its borders. In effect, it claims political superiority over member states but declines to be responsible for their defense. Indeed, I think inherent in this whole enterprise of transcending nation-states through the use of international institutions is the idea that defense is not so important.
All of this has happened in Europe in a very short period, and is the reason we should be concerned about the loss in our own country of a consensus regarding constitutional sovereignty. Think of the Kyoto Protocol on global warming, which many of our leading politicians now say we should have ratified. Doing so would have delegated the authority over huge areas of important public policy to international authorities. It would have been a clear delegation of the treaty-making power. Nevertheless, the Obama administration is aiming to negotiate a new treaty along those lines.
Of even more urgent concern is the increasing sense that human rights law transcends the laws of particular countries, even those pertaining to national defense. Of course, the idea that there should be standards that all countries respect when engaged in armed conflict is fair enough. But who is going to set the standards? And who is going to enforce them—especially against terrorists who refuse to act like uniformed professional soldiers? What we once called the “law of war” is now commonly referred to as “international humanitarian law.” Many today say that we need to follow this law as it is defined by the International Red Cross. But who makes up this organization in Geneva, Switzerland, and what gives them the authority to supersede national statutes and constitutions? Currently the International Red Cross thinks it is a violation of humanitarian standards for the U.S. to hold prisoners in Guantanamo Bay—not on the basis of any claim that these prisoners are mistreated, but based on the argument that they cannot be held indefinitely and should be put on trial in ordinary criminal courts. Even the Obama administration is not yet willing to conform to this particular standard of so-called international law, believing that holding these prisoners is vital to national defense and that the right to self- defense is morally compelling.
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Where does this trend away from the sovereignty of national constitutions lead? I do not think the danger is a world tyranny. I think that idea is fantastical. Rather what it will lead to, I think, is an undermining of the idea that national governments can protect people, with the result that people will start looking for defense elsewhere. We saw this in an extreme way in Iraq when it collapsed into chaos before the surge, and people looked for protection to various ethnic or sectarian militias. A similar phenomenon can be seen today in Europe with the formation of various separatist movements. We’re even hearing loud claims for Scottish independence. And it’s not surprising, because to the extent that Britain has surrendered its sovereignty, Britain doesn’t count for as much as it used to. So why not have your own Scotland? Why not have your own Wales? Why not have your own Catalonia in Spain? And of course the greatest example of this devolution in Europe is the movement toward Muslim separatism. While this is certainly driven to a large extent by trends in Islam, it also reflects the fact that it doesn’t mean as much to be British or to be French any more. These governments are cheerfully giving away their authority to the EU. So why should immigrants or children of immigrants take them seriously?
At the end of The Federalist Papers, Alexander Hamilton writes: “A nation, without a national government, is, in my view, an awful spectacle.” His point was that if you do not have a national government, you can’t expect to remain a nation. If we are really open to the idea of allowing more and more of our policy to be made for us at international gatherings, the U.S. government not only has less capacity, it has less moral authority. And if it has less moral authority, it has more difficulty saying to immigrants and the children of immigrants that we’re all Americans. What is left, really, to being an American if we are all simply part of some abstract humanity? People who expect to retain the benefits of sovereignty—benefits like defense and protection of rights—without constitutional discipline, or without retaining responsibility for their own legal system, are really putting all their faith in words or in the idea that as long as we say nice things about humanity, everyone will feel better and we’ll all be safe. You could even say they are hanging a lot on incantations or on some kind of witchcraft. And as I mentioned earlier, the first theorist to write about sovereignty understood witchcraft as a fundamental threat to lawful authority and so finally to liberty and property and all the other rights of individuals.
Minnesota Gov. Tim Pawlenty has been quietly assembling the blueprint of a presidential campaign and will announce Thursday the support of a group of high-level political strategists and donors, complemented by a handful of top new media consultants, POLITICO has learned.
Pawlenty, under the radar of D.C.’s political community, has locked up some of the key operatives who engineered then-President George W. Bush’s reelection campaign — a significant feat for a little-known Midwestern politician.
The moves underscore, and will lend credence to, the emerging belief among many establishment Republicans that Pawlenty is becoming the sole viable alternative to former Massachusetts Gov. Mitt Romney, a potential Republican primary rival. The Minnesota governor has even gone so far as to contact some of Romney’s former supporters.
Pawlenty, who previously has had little political infrastructure, is now being advised by a trio of GOP consultants with presidential experience: Terry Nelson, Sara Taylor and Phil Musser.
And in formally opening his political action committee, Freedom First, Thursday, Pawlenty will also announce two co-chairmen, William Strong, a Morgan Stanley vice chairman, and former Rep. Vin Weber (R-Minn.), both of whom are heavyweight GOP figures, along with a list of prominent Minnesota donors.
In addition to a high-dollar gala launch for the PAC in Minneapolis in November, Pawlenty is planning a Washington fundraiser for late October designed to acquaint the governor with the Beltway’s most influential Republicans. Helping to coordinate the governor’s GOP outreach in the nation’s capital is Sam Geduldig, a well-connected lobbyist and former senior aide to Reps. John Boehner and Roy Blunt.
Serving as the PAC’s counsel is Michael Toner, a veteran campaign lawyer in Washington. Alex Conant, a native Minnesotan and former Republican National Committee spokesman, will serve as communications director.
The governor has also inked political technology consultants Patrick Ruffini, Mindy Finn, Patrick Hynes and Liz Mair to develop what Pawlenty advisers hope will be the most sophisticated new-media presence of any Republican in the nation. Pawlenty launches a new website, http://www.timpawlenty.com, Thursday.
The second-term Minnesota governor, who is not seeking reelection next year, is focused on twin political goals, his advisers say: helping elect two Republican governors this fall from his perch as Republican Governors Association vice chairman and using his PAC to aid like-minded candidates running in next year’s midterm elections.
But Pawlenty is doing far more than that to establish his presence in the minds of Republican voters.
He is also traveling the country at a fevered clip, appearing at scores of GOP and conservative events to speak to the party faithful, and becoming a frequent national TV presence, especially on cable television, where he’s able to offer sharp critiques of President Barack Obama’s latest moves.
And behind the scenes, he’s engaged in a far more subtle campaign against another possible presidential rival.
Pawlenty has been phoning aides and advisers to Romney’s 2008 campaign, ostensibly to introduce himself and solicit their advice.
One midlevel Romney aide who got a call suggested the Minnesotan was targeting younger operatives who may be open to another candidate in 2012 should the former Massachusetts governor stock the senior levels of his next potential run with the same cast as last time.
Pawlenty also recently reached out to another well-known Romney supporter from a key early-primary state, asking questions about the state’s political dynamics.
“Not a lot of people outside of Minnesota know Gov. Pawlenty very well, and as he tries to help Republicans around the country, it makes sense for him to reach out to a lot of people,” said Conant, when asked about the forward-leaning tactics. “As he puts together a team to run the PAC with a focus on 2010, he wants the best people available.”
But such conversations have another effect, as Pawlenty and his team are well aware — they serve notice to the small community of political insiders that the governor is serious about a White House run.
There are some financial crimes and frauds that are absolutely unforgivable. Such were the actions of Wellcare Insurance, that defrauded Florida taxpayers for years. WellCare was accused of falsely and fraudulently inflating expenditure information it submitted to Florida Medicaid and Healthy Kids programs from mid-2002 through 2006.
According to a court filing, WellCare kept for itself money it received from the Florida health care programs that was supposed to be used to provide medical services. The filing said WellCare set up a wholly owned entity, Harmony Behavioral Health Inc., through which it funneled state funds. WellCare then fraudulently reported money that went to Harmony as expenditures on service, the filing said.
Yesterday it was announced that Wellcare will settle out of court and pay $80 million dollars in restitution. Even though the State of Florida has a slam dunk case against the insurer that would surely lead to a conviction they find themselves handcuffed because convicting Wellcare would mean pushing the company into bankruptcy and eliminating health coverage for thousands of low-income Floridians and thousands of children without health insurance. In essence, in Florida, Wellcare has become too big to fail, sound familiar?
Companies that are too big to fail who provide essential services like healthcare and banking present a systemic risk and vulnerability to the system. This gives these companies leeway in their wrongdoing simply because the government cannot bring those responsible to justice for fear of tanking the company. We have seen it many times this year with banks and now Wellcare is an example of how it could happen with healthcare. The government has to step in and save a company which has run itself into the ground because of wrongdoing or excessive risk.
The danger lies in creating a significant moral hazard, where a different set of rules apply for companies that reach a certain size threshold. This unfair competitive advantage leads to distortions in the marketplace but even worse it allows the taxpayer to be held hostage by companies whose wrongdoing has run them into the ground. Protections should be in place to avoid that companies become “too large to fail” especially in a marketplace that has special considerations like healthcare.