November 18, 2014

"Defining constitutional deviancy down."

From the new David Brooks column titled "Obama in Winter":
Usually presidents at the end of their terms get less partisan, not more... Usually presidents with a new Congressional majority try to figure out if there is anything that the two branches can do together... But the White House has not privately engaged with Congress on the legislative areas where there could be agreement. Instead, the president has been superaggressive on the one topic sure to blow everything up: the executive order to rewrite the nation’s immigration laws.... Instead of a nation of laws, we could slowly devolve into a nation of diktats, with each president relying on and revoking different measures on the basis of unilateral power — creating unstable swings from one presidency to the next. If President Obama enacts this order on the transparently flimsy basis of 'prosecutorial discretion,' he’s inviting future presidents to use similarly flimsy criteria. Talk about defining constitutional deviancy down.
"Defining deviancy down" is a famous alliterative phrase — less alliterative with Brooks's extra word "constitutional" thrown in. It was coined by Daniel Patrick Moynihan in a 1993 article titled "Defining deviancy down," which, as Mickey Kaus once put it, "blames the left for treating mental illness and single motherhood as acceptable 'life styles.'" The deviancy in question was the private citizen's deviancy from social norms. It's a catchy way to decry the lowering of standards (similar to Bush's "soft bigotry of low expectations").

It's interesting to transfer "defining deviancy down" to the context of the behavior of Presidents within a constitutional system, and in fact the behavior of Presidents does influence the way courts later interpret the power of the President. As Justice Felix Frankfurter wrote long ago in a very significant case:
The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by § 1 of Art. II.
That proposition was warmly embraced in Justice Breyer's opinion for a majority of the Supreme Court in last term's case about the President's power to make recess appointments:
[T]e longstanding “practice of the government”...  can inform our determination of “what the law is”...

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases... show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).
So Presidents really can define constitutional deviancy down. They can acquire power by claiming and using it, especially if Congress doesn't put up much of a fight.

70 comments:

Laslo Spatula said...

Putting all the eggs in one basket.

It is easier to assassinate one president than hundreds of Congressmen and women.

Postfounding practice, that.

Rusty said...

Hence the 2nd.

rhhardin said...

Some judge characterized opposition to gay marriage as having no rational basis and based on hate, finding that a thousands of years old tradition violated the Constitutional penumbras.

Usually it's novelty that gets subjected to rational basis.

Did Frankfurter have anything to say about that.

rhhardin said...

The thing is that Obama isn't even a good con man.

He fools women and children only.

David said...

It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by § 1 of Art. II.

Like public prayer? Maybe that's a little less glossy. Gloss or dross? Depends on the point of view, eh?

tim in vermont said...

Can't get past the fact that this guy thought that fashion (a crease in the pants) was the most important thing in a president.

traditionalguy said...
This comment has been removed by the author.
traditionalguy said...

Does Brooks' sudden realization that Obama is a foreigner makes him into a Birther? At the least it make him into a "You lied!" Joe Wilsonite who is no longer impressed by B. Husseins's noble pants creases.

Swifty Quick said...

Brooks being who Brooks is, what he's really worried about is that, with Obama setting the precedent, future Republican presidents can also wield their phones and their pens to unilaterally implement their agendas.

Mark said...

Well then, looks like the next Congress is formally invited to smack down Obama's imperial overreach as heavily as it can.

Hagar said...

I still say that McConnell and Boehner should just state they believe his actions to be illegal and that they are working on a comprehensive immigration reform plan that will be presented in the next session of Congress.
Then do that - and I hope it will be something that makes sense - and let him veto it.
Then just say OK, but it will be re-introduced in 2017 with a Republican president, so conduct yourself accordingly

PB said...

I think Obama's course at UofC Law School (and it really was only on the 14th amendment) must have been titled "Constitutional Perversity in Chicago".

My apologies to David Mamet.

Quaestor said...

According to Brooks "President Obama has racked up some impressive foreign-policy accomplishments."

I can't think of a single one.

Mark Caplan said...

"Defining deviancy down" takes a sideswipe at Obama's race. The other conservative NYT op-ed page columnist, Ross Douthat, recently used a different term: "creeping caudillismo" -- South American-style demagogic dictatorship -- which reminds us where the majority of undocumented workers in the U.S. hail from.

PB said...

Hey, he gave Vladimir all that flexibility...

Hagar said...

I think Putin got that message, drew his own conclusions, and is now nearly ignoring him.

Quaestor said...

Any foreign-policy "accomplishment" can be impressive, depending on one's point of view. For example, that Munich conference way back in 1938 -- that was a hell of an accomplishment.

I'm probably too hard on poor Mr. Brooks. Being Dean Baquet's tame conservative can't be a bed of roses. -- there's that dusk-to-dawn curfew and the low-protein diet, not to mention the obligatory surgery...

Quaestor said...

I wonder if, post-presidency, Mr. Obama will look back and regret that he got sucked into the very emotional maelstrom he set out to destroy.

Well, he set out to destroy something, that's for dang sure.

chickelit said...

Althouse wrote... So Presidents really can define constitutional deviancy down. They can acquire power by claiming and using it, especially if Congress doesn't put up much of a fight.

Instead of abstraction, we need a brief litany of other Presidents who flouted existing laws (especially immigration laws) and bettered the nation. That would be at least as important as a list of Presidents' eye colors.

Wilbur said...

Maybe the Congress can execute its constitutional and historic duty and - are you listening Harry Reid? - pass a budget.

Brando said...

Public opinion will make the difference in this showdown, because so long as Obama believes half the country thinks his policies are fine and the GOP is being unreasonable, he'll feel free to take executive action and dare them to escalate with shutdowns or impeachments. However, if the public opinion runs so hard against him doing this, he'll have at least a few Democratic senators and reps bail on him (especially if they have voters to face in 2012) and that may be enough to scare him off.

The GOP needs to win this with the public, in part by making it clear what an overreach it would be for him to flout the law so brazenly, and in part by announcing their own immigration proposal so it's not so much they're being "obstructionist" but that Obama won't even compromise.

And as to whether the GOP should want to pass any immigration bill at all? They certainly should--the status quo of open borders and a large illegal alien population living in a form of legal limbo is not healthy for this country. The GOP must make clear what they would do about it if they had their way.

President-Mom-Jeans said...

Althouse is all about mainstreaming deviancy.

George M. Spencer said...

He's a loony-bird dictator.

The signs were there from the beginning.

Most chose to ignore them.

A smiling monster, this Obama.



President-Mom-Jeans said...

Unless it is libertarian thought. Then she cries about it.

http://reason.com/blog/2006/12/29/grande-conservative-blogress-d

Hagar said...

For all the hoopla, Obama's Executive Order will not make any practical difference as far as the illegal aliens are concerned - for one thing, his administration will not consistently enforce even that, regardless of what might be in it.

This is all being ballyhooed for show, trying to bait the Republicans to say and do something stupid.

chickelit said...

Hagar said...

This is all being ballyhooed for show, trying to bait the Republicans to say and do something stupid.

Bingo!

(rhymes with..?)

Sebastian said...

For progressives, traditional gloss is dispositive unless it isn't.

PB said...

The ONLY things Obama cares about at this point are how much he'll make per speech after he leaves the presidency and if he can get someone else to foot the bill for a $100 million estate in Hawaii. He's NOT going back to that house in Chicago.

Michael K said...

Some of this is the fault of Newt Gingrich who was so foolish as to brag about shutting the government down if Clinton did not agree to the legislation that 1995 Congress passed. Gingrich overreached by publicly boasting of what he would do .

In response to Clinton's refusal to accede to Republican demands for steep cuts in Medicare, Medicaid, and other non-defense spending for the fiscal year 1996 budget, Gingrich threatened to prevent a vote on increasing the federal government's debt ceiling, which would have forced the U.S. into the unprecedented position of defaulting on its outstanding debt. A continuing resolution bill allowed the government to keep running. Nevertheless, the Clinton White House and Republican congressmen failed to reach agreement on the budget, and as a result the expiration of the continuing resolution on November 13, 1995 led to the closing of all non-essential government services. The shutdown lasted until November 19, when the President and Congress agreed to try to balance the budget in seven years.

Clinton outmaneuvered Gingrich with the public.

Politically speaking, President Clinton got the better of the 1995-96 government shutdown. Whereas Gingrich expected the public to side with the Republican Party during the dispute, opinion polls showed that a majority of Americans felt that the impasse had been the result of Republican obstinacy.

Clinton was a much better politician than Obama but the question is, who is a better politician on the GOP side than Gingrich ?

The TV people are all trying to get Republicans to threaten a shutdown. They should shut up about it.

Brando said...

"Clinton was a much better politician than Obama but the question is, who is a better politician on the GOP side than Gingrich ?"

One difference here is Gingrich had a very negative personal image, which can't really be said about Boehner or McConnell (much as the Left may try). Gingrich had a bit of nastiness which alienated even many of his allies, so he became easy to demonize. His complaining about where he was seated on the trip to Rabin's funeral had nothing to do with the shutdown as well, but it got painted that way--he had poor timing.

However, the GOP would still be unwise to shut down the government because they will naturally be blamed for it. Congress controls the money, so when it dries up the party that controls Congress will be blamed. Plus, the GOP is seen as the "anti-government" party so it seems that a shutdown is in their interest--ergo, they'll be blamed for it. And when Ted Cruz and his ilk keep suggesting shutdowns and saying shutdowns were good for the party and never should have been ended, then again--who's going to be blamed?

Obama doesn't have to be popular or a good politician, the GOP will get the worst of it with a shutdown.

They're better off passing budgets for him to veto, and forcing Dems to either take unpopular votes or defy their president (enabling an override of the veto). That, and work the public opinion. Otherwise, he will use his leverage as much as possible.

Michael The Magnificent said...

This is all being ballyhooed for show, trying to bait the Republicans to say and do something stupid.

Yes, like handing Obama the legislation he is asking for.

Republicans should hand Obama the legislation that we, the people, the citizens of this United States, are asking for, and let Obama veto that.

From Inwood said...

C-Span something had a program on the other night, which I came upon in the middle, about Ford's pardon of Nixon.

Ah, yes, I remember it well even now when I'm old & gray & full of sleep & nodding by the fire.

That was considered an impeachable offense by every Lib I knew or saw on the Telly.

BTW, the panelists, all of whom had some connection to the Ford or Nixon Administrations, seemed to feel that it cost Ford the Election in '76.

I agree that it didn't help, but the perpetually outraged by GOP POTUSES crowd was never gonna vote for Ford anyway.

BTW II, these same people thought Nixon's pardon of Lt. Calley was an impeachable offense also.

Now about Andy J's pardon of Bobby Lee....

And that statue of Bobby Lee in front of the Baltimore Art Museum....

traditionalguy said...

Is it a sign of deviancy or is it a sign of skill skill to set out to destroy the American dollar, the American world alliances, the American energy industry, the American borders with Central America and Mexico, the American Military leadership, and thje American system of governing by Congressional coalitions?

My money has always been on a sign of Obama's skill.

wildswan said...

I think that the question everyone is asking is what will be the impact on the parties, i.e. who do we imagine the new voters will vote for? But the question that should have asked might turn out to be: how many people lost their jobs to the newly legalized? How many hundred thousand African-Americans will suddenly lose their jobs? How many is too many? And does Obama, the man elected as a sort of tribune for the African-Americans - elected so that they would finally have someone at the top table who is for them - Has Obama even asked how many African-Americans will lose their jobs if this goes through?

Next time you drive through city streets look at the demonstrators on street corners, the people waiting in 0 degree weather to take a bus to their jobs. Demonstrating that they want to work. Why legalise 5 million competitors in one terrible blow against these demonstrators?

dbp said...

It seems to me like it is Presidents, not Congress who have the most power to weaken the power of executive orders:

If Obama orders federal agencies to issue work permits or green cards to illegal aliens, the next president can just as easily revoke these same. In theory, it doesn't need to be the next president, but any one, however distant in the future. In practice, it will be come harder to do the longer the order stands.

From Inwood said...

BTW, same thing with Executive Orders & Executive Agreements.

Some Libs see no limits on thesed when a Dem is in power. When a Republican is POTUS? Imperial Presidency.

Some Libs today feel that, like Caligula reputedly with his horse, Obama could appoint his dog to an office without the consent of the Senate.

In fact, as one wag has noted, Obama is thought of as a secular version of The Trinity, with all three branches of the government subsumed into one Devine power. himself...

From Inwood said...

OOPS "these"

mccullough said...

It's interesting to see the pro-Obama fools like Brooks finally understand Obama is the lightweight ideologue many people said he was.

Brooks should resign. Why would anyone listen to someone who was so wrong about Obama?



Larry J said...

Anything is possible if you lower your standards far enough.

You can achieve a 100% high school graduation rate, if you lower the standards so that people don't have to actually attend and learn stuff.

I can fly like Peter Pan, if you lower your standard for flying to include jumping into the air.

Obama can be a great president, if you lower your standards far enough to allow for his trashing of the Constitution, his failure to work with Congress, his dismal foreign policy, his weaponizing the bureaucracies to target political opponents, his trashing of immigration laws, his abomination popularly known as ObamaCare, and so on.

Conversely, Abraham Lincoln asked, "How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg."

By that standard, Obama can never be a great president, or even a good one.

Skyler said...

Brooks is conveniently noticing the dark side of the Obama administration now that it doesn't matter and now that Hillary's camp wants control again.

Michael K said...

Interesting debate over at Ace.

One side says don't go there.

Ace of Spades’s Gabriel Malor, another man I hold in high regard, holds a similar view, often expressing excitement at the possibility that Republicans will eventually be able to take advantage of what he terms, cheerfully, “The Obama Rule.”
I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce. On the contrary: I consider the idea to be a grave and a disastrous one, and I would propose that any such change is likely to usher in chaos at first and then to incite a slow, tragic descent into the monarchy and caprice that our ancestors spent so long trying to escape.


The other side says to do the same when we get power.

Cooke is rightly concerned that Obama’s application of prosecutorial discretion on steroids turns the American system of government upside down by making enforcement of Congress’ expressed will dependent on the whims of executive branch officials.

The Obama Rule, as I have been calling it for more than a year now, is a startling change in the way the executive branch operates, and an unwelcome one. But—and here is where Cooke and I part ways on this—I think that, should Obama go through with his expected immigration plan, the next Republican president should apply the same rule to federal laws that he or she opposes.


The debate is interesting and probably futile since any other president would face impeachment whereas Obama does not because of his racial status.

One look at the preparations for rioting when the grand jury ruling is released (probably the day before Thanksgiving) suggests what would occur if the "first black president " were to be impeached even if Democrats would cooperate.

He knows this and uses it as a weapon. That is why he is defiant in defeat in the mid-terms. The hangover after he finally goes will be ugly.

bleh said...

It's in the nature of the political branches to assert themselves and to push the limits of their power, and the system is designed to exploit that tension to promote compromise or to create gridlock. But elected officials also take an oath to uphold the Constitution. Good faith adherence to the Constitution is an essential ingredient to the proper functioning of our system.

That is to say, our system works best when elected officials do their jobs zealously while at the same time acknowledging the boundaries imposed by a higher law. When presidents stop caring about the Constitution, figuring they can steal power because the political calculations say they will get away with it against a weak Congress, then the system begins to break down. We are left with something different from a constitutional democracy.

This sort of thing will only get worse the more "direct" we make presidential elections. Presidents will think their hand is stronger in these inter-branch disputes because the president will believe that "the people" are on his side.

I think it's important to make changes to strip some of the political character from the office of the president. Give a president one six-year term and be done with it. I think that would solve a lot of problems.

Beldar said...

Yes, like the computer-enabled fly-by-wire systems used in the F-16 and later aircraft which are dynamically unstable — which won't just glide, even for a minute or two, if the pilot lifts his hands from the yoke — the Constitution envisions constant dynamic feedback and pushback from perpetually opposing forces designed and set up in opposition to one another.

American government has always been described as a three-legged stool, but gravity isn't the only force operating on it; the legs push against one another. If one of them stops, the stool collapses.

richard mcenroe said...

Right now Congress on both sides is being paid very good money by the Chamber of Commerce and various crony capitalists to redefine deviancy to allow the admission of several million welfare voters and dollar-an-hour 'tech workers'. Is this a "gloss" or more of a "gilding"?

richard mcenroe said...

St. George:

"He's a loony-bird dictator."

Yeah, but he wears blank white shirts so we have no idea what his real message is, do we?

chillblaine said...

Obama dreams "things that never were and say(s), why not?"

Congress needs to check this abuse by sending Obama budgets, and making Obama veto them and shut down the government.

Michael said...

I am cool with this new approach, knowing that a Republican will some day sit in the White House and by fiat lower my taxes, reduce the transfer of payments to the slothful, eliminate bureaucratic burdens by the yottabyte and generally avoid the messy back and forth of what used to be the legislative process.

Obama is a small man with small ideas, always thinking of the political edge when he could be thinking of epic shifts. History will shrug at him.

Hagar said...

I think some version of Chicago '68 is being planned for Ferguson, MO, and I think it is being orchestrated from the White House with assistance from the DoJ Civil Rights Division.
And, of course, Al Sharpton.

And they are being obvious about it with official photos of Sharpton at the White House with Holder and the President and everything.

This is quite something to see.

Birkel said...

And nobody will have standing to sue when they lose their jobs to the newly, unlawfully "legalized" foreigners.

I expect the foreigners will balk at paying America's high taxes, by the way. They'll gladly take public assistance while continuing to work "in the shadows" thereby creating a double-whammy on the fisc.

Good times.

Hagar said...

This is probably intended to be some kind of a show rather than a real riot, but I think they are playing with fire in a gas station.

Skeptical Voter said...

Well that explains it. Our putative "Con Law Professor" Obama is a constitutional deviant!

Who knew?

Does he even understand the Constitution and the role of, and limits on, the Presidency?

Does he care? (You all know the answer to the last two questions where our narcissist in chief, Emperor Obozo the First, is involved.)

Brando said...

If Democrats can go from "the filibuster is a longstanding mechanism to protect the rights of the political minority" to "the filibuster is just a cynical tool for an obstructionist minority to prevent the will of the people" in just ten years, then why would anyone be surprised that they would balk at a GOP president using executive orders to do an end run around Congress at the next opportunity?

Anonymous said...

Consider me on the side of those who believe a President Ted Cruz ought to do the same sorts of things.

If President Obama gets away with this, then it's meant to be. And it means future Democrat Presidents will feel more and more justified in doing it.

If Republican Presidents refuse to use this new power they are given, then we've lost without even trying. It's no use saying, "Well, this is terrible for the Republic!"

It's even more terrible if Democrats get away with it and Republicans refuse to use the power based on principle.

Richard Dolan said...

It's an old dispute and arose initially in a different context. Catholic teaching focuses on both scripture (text) and church tradition (gloss derived from practice). In that regard, Catholics borrowed heavily from Jewish sources. In contrast, the protestant reformation largely rejected the authority of church tradition, and looked instead only to scripture, with an attempt to understand it as it was understood by the gospel writers who wrote it.

Those two approaches work better in tandem than standing alone, each correcting the excesses of the other, and in that sense are more complementary than contradictory despite the efforts of some to cast it otherwise.

Nothing really different when the same discussion takes place about broad constitutional provisions.

HoodlumDoodlum said...

It's an interesting concept, though, almost a sort of easement by acquiescence over governmental power; if the Congress doesn't stop the President from doing certain things and those things become customary/traditional, why should the Court later decide those customs are invaild? It's almost like a laches defense (by the Pres), saying the time to have opposed that custom was when it started and now it's too established to change. One complication is that the parties involved are new--new citizens, new Pres, new Congresscritters, so it's not like you can say the current Congress should be estopped (from arguing the Pres' conduct is unConstitutional) due to the actions of a previous (or many previous) Congress'--they're the same Office but not really the same parties.
All the more reason to forcefully defend one's rights and powers against actual usurption, of course.

Michael K said...

"It's even more terrible if Democrats get away with it and Republicans refuse to use the power based on principle."

We have had 50 years of Republicans standing on principle and Democrats taking advantage of that ethical position by cheating. Talk about vote fraud, for example. Still, it is the tactic of despair to adopt the policies of the cheaters and liars.

Remember that the French rule by the Girondin Ministry began the Revolution but was overthrown by the radicals and Robespierre. They were guillotined.

The crisis came in March 1793. The Girondists, who had a majority in the Convention, controlled the executive council and filled the ministries, believed themselves invincible. Their orators had no serious rivals in the hostile camp; their system was established in the purest reason. But the Montagnards made up by their fanatical, or desperate, energy and boldness for what they lacked in talent or in numbers. This was especially fruitful because while the largest groups in the convention were the Jacobins and Brissotins, uncommitted delegates accounted for almost half the total number. The more radical Jacobins' rhetoric had behind them the revolutionary Commune, the Sections (mass assemblies in districts) and the National Guard of Paris, and they had gained control of the Jacobin club, where Brissot, absorbed in departmental work, had been superseded by Robespierre.

Riding the tiger may be possible but it has consequences if you want to get off.

William said...

Frankfurter was a progressive. He enunciated the policy of judicial restraint while on the Supreme Court. Nowadays this is a cnservative position, but in his day, when the Supreme Court was ruling certain New Deal laws unconstitutional, such a position was progressive. I think his overriding principle was not the balance of powers but the advancement of progressive causes......I looked him up on Wiki. At one time he was a hero of progressives, but apparently they're embarrassed by some of his decisions nowadays, and he is no longer revered.......Wiki doesn't cite it, but I have the vague memory that he took it upon himself to be FDR's lobbyist and spy on Supreme Court activities while serving as a justice. He's not the go to guy when it comes to separation of powers.......He does, however, offer the American public another chance to make Weiner jokes. This dirty water Frankfurter believed in the innocence of Sacco & Vanzetti and the promise of the Soviet Union. There were a lot of unpalatable pig parts and filler in Franfurter's progressivism.

Michael K said...

"Frankfurter was a progressive."

He was a bit more than that.

During this period, Frankfurter read Herbert Croly's book The Promise of American Life, and became a supporter of the New Nationalism and of Theodore Roosevelt. In 1911, President William Howard Taft appointed Stimson as his Secretary of War, and Stimson appointed Frankfurter as law officer of the Bureau of Insular Affairs. Frankfurter worked directly for Stimson as his assistant and confidant. His government position restricted his ability to publicly voice his Progressive views, though he expressed his opinions privately to friends such as Judge Learned Hand.

He was a political activist.

He came to sympathize with labor issues, arguing that "unsatisfactory, remediable social conditions, if unattended, give rise to radical movements far transcending the original impulse." His activities led the public to view him as a radical lawyer and supporter of radical principles.[16] Former President Theodore Roosevelt accused him of being "engaged in excusing men precisely like the Bolsheviki in Russia."[18]

Just another Democrat Supreme Court Justice.

Anonymous said...

"We have had 50 years of Republicans standing on principle and Democrats taking advantage of that ethical position by cheating. Talk about vote fraud, for example. Still, it is the tactic of despair to adopt the policies of the cheaters and liars."

I certainly don't believe we ought to resort to voter fraud just because the Democrats get away with voter fraud.

But does anyone think politicians should get away with voter fraud? There is a reason it's done in secret.

On the other hand, this is being done by King Putt openly. With many in support of what he is doing.

Is it lying and cheating? Well, I'd say if it can be done so openly, so brazenly, and gotten away with, then it's a part of our system and won't be changed without a constitutional amendment. And until that time, we should use it also.

However, before taking the route, we should try and stop it and say it's not meant to be. That it isn't one of the Presidents powers.

Failing that, we ought to play by the same rules.

JackWayne said...

Richard McEnroe, I think you meant gelding.

Rockport Conservative said...

When I see the term "defining deviancy down," I always think of Bork's book "Slouching Towards Gomorrah."

DanTheMan said...

>>F-16 and later aircraft which are dynamically unstable — which won't just glide, even for a minute or two, if the pilot lifts his hands from the yoke

Just to be pedantic... The F16 will certainly fly with no input from the pilot, if it's trimmed correctly.
It will, however depart if the fly-by-wire computer lets go!
Oh, there's no "yoke", but a small side-stick.

Ken B said...

Brooks's last paragraph shows how incapable he is of even imagining he misread Obama way back when.

DanTheMan said...

Should the next president assume the same powers O has?
O "postponed" the implementation dates of a number of ACA features. No congressional vote seemed to be needed to change the law.
My "What if": President (R-2016) says "I'm suspending the collection or enforcement of personal income tax obligations for one year."

mccullough said...

Frankfurter was another useful idiot of progressivism. He was a friend and staunch defender of Alger Hiss, who was a communist spy.

Jupiter said...

"One look at the preparations for rioting when the grand jury ruling is released (probably the day before Thanksgiving) suggests what would occur if the "first black president " were to be impeached even if Democrats would cooperate."

I read that they are selling a lot of shotguns in Ferguson. Is that the "preparations for rioting" you refer to?

Heatshield said...

Pass a budget that fully funds the government but explicitly leaves out any funding for Obama's unconstitutional end run. Not a dime to print extra green cards, not a dime to process any applications. But everything else funded. If Obama vetoes it, it will be pretty clear who shut down the government and why.

Jupiter said...

It would appear that Obama's long study of the Constitution was not in vain. He has realized that the clear-eyed and unsentimental men who drafted that document had failed to consider the possibility that the electorate might become so debased that a criminal would be elected President, and would be sustained in his criminality by the Senate, with no electoral consequences at all. Of course, the document they drafted assumed that the electorate would consist solely of white men of property. The fault, then, is not in their design, but in the multiple "progressive" modifications that have been made to that design in the service of greater Democracy.

What is not widely understood, by the Ezra Kleins of this sad old World, is that the Framers regarded voting as a responsibility, and sought to select the voters as you might select a board of directors. They believed that only mature, property-owning males had the judgment and experience to manage the affairs of the government, and supposed they would vote in the public interest, even when their own interests might conflict with it.

Whether this belief was justified is certainly open to question. My point is simply that they would have been appalled to see the way modern campaigns openly and indeed proudly appeal directly to the interest of the voters. Hell, they would have been appalled to see a candidate for President make a public speech in favor of his own election.

Retired Prosecutor said...

I'm remember when Brooks was impressed with a crease in a pair of trousers -- I suppose if you start there, disillusionment cannot be far ahead.

ken in tx said...

In the military, there is such a thing as an illegal order. Under the Uniform Code of Military Justice (UCMJ), one does not have to follow an illegal order. For example a commander might order that his troops take no prisoners, but shoot those who had surrendered instead. Some people might obey these orders, some might want to obey them, but all would know that they are illegal orders. The UCMJ would protect them for disobeying such orders.

The trouble is, in the civil service, there is no UCMJ. They have no protection from being punished for not following illegal orders. In addition, Many of them would welcome such orders.

I think there is room for a remedy in reforming the federal civil service.