The Trivial Constitutionalism of the New Right

We’re often treated, these days, to points of political principle that, judging by conservative standards, apply only to Democratic presidents and legislators. For example, the individual mandate, in the hands of a Democrat, is socialism, and somehow Weimar Germany come again; but in the hands of a Republican, it’s part of a market-based solution that harnesses to bring costs down while keeping the insurance industry safe. Nuance!

The latest is the autopen, a neat little device that can sign the President’s name for him, on his say-so, therefore turning bill into law even in the President’s absence from the Oval Office. Under President Bush, per the OLC, the device was perfectly constitutional, as the President still causes the bill to be signed, thereby discharging his constitutional role. But is it still constitutional under Obama? Of course not!

These are the concerns that occupy the new right; and were it not already resolved, it might be somewhat interesting. The trend in legal practice is away from requiring true signatures — “/s/ Attorney Name” suffices, more often than not. Similarly, executives ancient and medieval could issue edicts or orders under their seal, duplicates of which were often held by trusted lieutenants. Such expediences are especially important where, as here, absent the executive’s signature, important national security- or military-related matters would go unsigned.

But where there’s a chance to wound President Obama, of course form matters over function, national interests be damned.

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72 comments

  1. “These are the concerns that occupy the new right..”

    So here is the question: How many Republicans, elected or otherwise, have to raise a fuss about something in order for it to be linked to the entire right side of American politics? What I see is ONE Congressman asking questions about the Autopen and you implying that the entire American Right is concerned with the same triviality. I did a Google search and i can’t find a single other person, elected or otherwise, that is talking about this being problematic. If you can document more please let me know.

    I would love to be able to tar the entire American Left with every kooky idea that came from a single person on their side of the aisle. Is that your standard now?

    1. Oh, I meant that this was representative, not that it’s shared by every member of the right.

      1. It’s not even representative unless your standard is a sample of one.

  2. Yeah, perhaps the brush got a bit too broad there.

    But what I’d really like to know is whether Rep. Graves also thinks the President should walk down Pennsylvania Avenue with every bill he wants to veto and hand it back in person.

  3. oneiroi · ·

    Another example, which you’ve written about before, is the whole Czar debacle

    http://acandidworld.com/2009/09/17/the-unconstitutionality-of-limiting-czars-whither-the-unitary-executive/

    1. In 2007 Biden claimed he would seek to impeach President Bush if he bombed Iran without Congressional approval. Ironically, no longer an issue with regards to Libya.

      So…is that a representative sample of the Left?

  4. Oneiroi gets it. My argument was that this is representative of the little, trivial, and internally contradictory points they decide to fight about.

    1. Define ‘they’.

    2. oneiroi · ·

      The whole conservative wheel.

      From what I have picked up about the czar issue (http://www.factcheck.org/2009/09/czar-search/), it started when Beck brought it up and posted something on his website. This went around in conservative circles, Karl Rove and others furthered it, until 6 Republican senators sent in a letter to Obama with their concern over the constitutionality of his czars, which then led to an anti-czar bill in the house with 100 cosponsors.

      So generally…those people decide to fight over this stuff.

      1. And this kind of stuff never happens on the Left. You were around for the Bush years, right?

      2. oneiroi · ·

        I don’t think anyone was talking about it not ever happening on the left.

        And what are we specifically discussing? Things that were okay for a relatively long swath of history, that suddenly become constitutional crises when the opposite party does it, that becomes a big issue within the party. Something like that, right?

        So then, are you comparing, challenging what Rumsfield, Yoo, and Gonzalez have done, with the terms Czar, auto-pens, or light bulbs? Or which part of Bush’s administration exactly?

        I mean, in some way, I still have the caricature of the parties as being, the Republicans who impeached the president on a blow job, but scoffed when discussing the legality of suspending habeas corpus, torture, & wiretaps. I do think there are odd levels of outrage that don’t necessarily fit with the weight of what’s going on. And I don’t think those things get quite as much traction with Democrats in power.

        1. Have you noticed how liberals always trivialize the concerns of the Right? For example, the truth is that President was sued for sexual harassment and lied under oath in his testimony. This lead to his impeachment. You boil it down to, “He was impeached for a blowjob” which is both factually inaccurate and an over-simplication of events.

          Likewise, the czar thing is kind of a big deal. It’s not trivial and probably should be reviewed.

          It seems like your whole argument is that any attempt by conservatives to fix a specific issue is partisanship if they ever ignored the issue when they themselves were in power. If that is your criteria then neither side ever has the right to press for reform.

          1. …the truth is that President was sued for sexual harassment and lied under oath in his testimony.

            Um. Did you miss the part where he was acquitted of that?

            1. Acquitted of what? If you’re talking about lying under oath then I disagree. He was disbarred and paid a large fine to avoid federal perjury charges.

              1. Yes, exactly, he was disbarred as part of an agreement, with no charges filed. And he was acquitted at the impeachment. So in the absence of a verdict, by definition he did not commit perjury. Presumption of innocence and all that.

                1. So we’re going to pretend he didn’t commit perjury? While we’re at it, how about we talk about how OJ didn’t kill anyone?

                2. I mean, both were acquitted. We can have our suspicions, but they’re just that.

                  1. From Clinton ‘s grand jury testimony:

                    “I have never had sexual relations with Monica Lewinsky.”

                    1. And do you recall what the charges were that were before the grand jury?

                3. “And he was acquitted at the impeachment.”

                  I re-read this one. Actually this is incorrect. The impeachment stood. He was aquitted in the Senate which meant he wasn’t removed from office. Remember: Impeachment is basically like being charged with a crime. The House found enough evidence to charge him with perjury.

                  1. So indictment is guilt, huh? I didn’t know that. If you’ll excuse me, I have to withdraw from a few criminal appeals. Those guys are screwed!!

                    1. I didn’t say that. I said that you don’t get acquitted during an impeachment.

                    2. you don’t get acquitted during an impeachment.

                      Well, you can get convicted during one (Art 2, Sec 4). And the opposite of a conviction is…?

                    3. Once you are impeached then I think impeachment ends and the trial process starts. I believe they are technically separate.

                    4. Oh, that’s what we’re talking about.

                      Fine, he was acquitted at the impeachment trial, if you really think it makes that much of a difference.

                    5. Well it does actually. Charging someone with a crime does not require quite the same level of prof as convicting them. So maybe this supports the notion that Republicans were exagerating a triviality?

                    6. Er, were NOT exagerating a triviality.

                    7. No, because as you said, getting impeached is just like getting charged with a crime, and no negative inferences can be drawn from the mere fact that a defendant has been charged. Again, presumption of innocence and all that.

                    8. So then nothing negative came from Clinton’s impeachment. Case closed.

                    9. Well, except for wasting millions of dollars on staging a political circus. But I guess you guys could afford it back then.

                    10. It’s ALL political theater AK.

                  2. Makes sense. Much more efficient. And I’m sure those DAs know what they’re doing, anyway. [/trustthesystem]

                  3. Fine, he was acquitted at trial after impeachment. Let’s move on.

          2. The czar thing collapses to the unremarkable assertion that the President employs subject matter experts as policy advisors. I realize expertise is suspect in conservative circles — what with all that thur book lernin being evil or something — but this was never controversial until this cycle.

            1. Do they only advise or do they make policy?

            2. Can you parse some meaningful difference of constitutional dimension?

              1. Yes. Government officials MAKE policy. Advisers SUGGEST policy.

              2. Yeah. So your distinction is whose signature it goes out under. The answer is always “the President’s.” So they just suggest.

                1. So then why have a Cabinet? Where is the oversight?

                2. Because… subject matter experts are good advisors to have? Are you actually debating the Czar thing on the basis of, “the Cabinet can do it all”? The modern state is a complex beast, and oversight is, un-shockingly, Cabinet level or Presidential level.

                  1. And ultimately, of course, the electorate every four years.

                  2. The Cabinet is supposed to advise the President. If he wants the government re-organized, shouldn’t he say so?

                  3. Interestingly, he has. By appointing special advisers.

                    Is your thing really that you’d prefer the President get worse advice, so long as he abide by the narrowest possible interpretation of his control over his own branch?

                    1. Then shouldn’t he close those Cabinet positions?

                      My position is that there should be Congressonal oversight over the President’s advisors, especially since he has decided he doesn’t like the traditional Cabinet structure.

                    2. “Traditional”? Just to take one example, there’s been National Security Advisors since probably the Truman administration. There’s nothing new about it at all.

                    3. For that matter, the term itself goes all the way back to FDR who had quite a lot of them, too.

                    4. Obama has a record number. Even Democrats have raised concerns.

                    5. He’s also got a chief of staff, a press secretary, an official photographer and for all I know a Presidential dog minder. Should there be Congressional oversight of those positions, too?

                      And I’m sure the Congressional desire for more oversight powers is quite bipartisan, but the point is to have a balance of powers, not just give Congress everything they point to.

                    6. I think the specific concern is that this shifts the balance of power.

                    7. That seems unlikely, since these “czars” don’t have any powers beyond what already exists in the executive branch. They still only advise the President.

                    8. I don’t think that is all they are doing. The concern is that they are making policy.

          3. oneiroi · ·

            Yes, he lied under oath, and Bush has done a myriad of things which I think are constitutionally questionable, during his expansion of executive power. And it’s like, Clinton lied about his personal life, but when Bush was wrong, he didn’t lie, he just goofed, and you can’t prove otherwise! Gotcha! But I really didn’t want to go down that historical he-said she-said .

            The point is, and partially what this whole post is about, is yes we deligitmize your concerns, especially when they seem from left field, and yes you deligitimize ours. Conservatives called us pansies for worrying about Guantanamo, while the Supreme Court declared it unconstitutional, and then they complain about the tyranny of light bulb legislation.

            Calling things you oppose a constitutional crisis, is not just reform. As it said in the post, it’s silly and it’s “trivial constitutionalism”.

            The czar thing does not need looking in to. First off, “Czars” don’t exist, it’s just a media term. Most that are dubbed Czars either approved by congress, or have no real power except in brainstorming. It’s also the Executive branches job to implement policy, if they want to hire people to help think of how to do that, that’s well within their constitutional rights.

            And I was thinking you wanted to point out this happening on the left when Bush was in power, since you asked if I remembered…?

            1. And Biden said Bush should be impeached if he bombed Iran without Congressional approval but has been silent when we do the same to Libya. Gitmo was terrible under Bush and indefinite torture was given a more solid legal standing under Obama. The individual mandate was a necessary component of HC reform under Bush and unconstitutional under Obama. Both sides have selectively short memories and contradict themselves.

              Maybe the largest point to be made is that ALL of our elected officials are drama queens and in a 24/7 media cycle you have to scream ‘Constituional Crisis’ to be heard. The solution is probably that we should stop giving them an audience.

              1. There’s a very long tradition for that. For the Jeffersonian Democrat-Republicans before 1801, the judicial branch were the essential guardians of The People’s liberties against the Federalist government. After 1801, of course, they suddenly turned into a Federalist-infested “judicial stronghold” who stood in the way of true democracy and The People’s will. So it goes.

                1. I suppose it’s old age but personally i’m just getting tired of the whole process. Ron Paul 2012!

                2. Ron Paul: the choice when it’s just all too confusing!

                  1. I prefer to call him the choice when you’re tired of establishment bullshit.

                    1. As long as you’re ok with spending your vote on making that statement, rather than getting to influence who gets elected.

                  2. Influencing who gets elected seems to do little to demonstrate who one actually gets as a President. Ames will of course give Obama a pass but I know more than a few Democrats who would like to have their vote back. What you see is rarely what you actually get.

                    1. oneiroi · ·

                      I don’t think I’ve met a Democrat who wishes they voted for McCain.

                      I’ve voted for Nader before, I was in Texas, it didn’t really matter, but I still feel “eh” about that voting decision.

                    2. I think most of the ones I have talked to that regret their vote would have preferred Hillary.

  5. Why is an autopen even necessary? This is the TWENTY-FIRST CENTURY! I realize that it hasn’t delivered on promises like flying cars and self-cleaning clothes (damn you, Back to the Future, for raising my hopes!), but there’s these little things called “ftp” and “e-mail attachments” and “printers” that have been around for awhile, or hell, even this half-century-old technology called a “fax machine”. Couldn’t they have used one of those technologies to produce a physical copy of the enrolled bill at President Bushbama’s physical location for him to physically sign?

    Even if you weren’t going that route, wouldn’t need a duplicate of the President’s signature by a machine, if you ask me. A signature “Random Human Executive Branch Employee, by order and on behalf of Georack Walkein Bushbama, POTUS” would satisfy me under my borgdrone conception of the metaphysical unitary executive.

  6. Mike, you don’t get it. They can’t “make law” without the President’s say-so. That’s not the way the branch works.

    This, by the way, is a perfect example of what I was talking about.

    1. “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States.”
      – Sen. Barack Obama, March 31, 2008

    2. “As presidential assistants and advisers, these White House staffers are not accountable for their actions to the Congress, to cabinet officials, or to virtually anyone but the president.They rarely testify before congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege. In too many instances, White House staff have been allowed to inhibit openness and transparency, and reduce accountability.”

      – Letter to President Obama, Sen. Robert Byrd, February 2009

  7. Yeah, now you’re bringing up unrelated points. There’s a difference between the President’s power qua other branches/the world, and his power qua his advisors. Czars implicate only the latter.

    1. “The Constitution mandates that the Senate confirm Cabinet-level department heads and other appointees in positions of authority — known as “principal officers.” This gives Congress — elected by the people — the power to compel executive decision-makers to testify and be held accountable by someone other than the president. It also ensures that key appointees cannot claim executive privilege when subpoenaed to come before Congress.”

      – Rep. Eric Cantor, July 2009

      1. Okay, that seems like total nonsense. Congress’s subpoena power doesn’t come from the advice and consent power, it’s part of the general legislative power. Otherwise only the Senate would have subpoena power.

        On the other hand, surely Cabinet members can claim executive privilege as well, so I’m not sure where he’s going with that, either.

        1. And by the way I was under the impression that the President is “elected by the people” as well, so that seems like a slightly odd thing to bring up, too.

          1. Erik J · ·

            I think you’re forgetting that ACORN and the Black Panthers stole the 2008 election.

      2. If Cantor believes that’s where congressional subpoena powers come from, he can’t be considered any kind of reliable Constitutional authority.

  8. Ah, but Diebold stole the 2004 election, and the Supreme Court stole the 2000 election (but only after a bunch of Floridian imbeciles who were clearly too stupid to have any business living, let alone voting, fucked up their votes because their feeble brains couldn’t grasp the non-existent complexities of a butterfly ballot), and Richard Daley stole the 1960 election, and and and and… FRAUD!

    The rules aren’t the best (although our system of allocating votes is still “as sound as it was when that shipload of mentally defective orangutans washed ashore and designed it”), but I think America’s pretty damn good about following them.

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