Is Presidential Power At Its Lowest Ebb Today?

The president is correct that there have been many national emergency declarations in recent decades (17 by Bill Clinton, 12 by George W. Bush, 13 by Barack Obama).  But none of them seized money appropriated by Congress for other purposes.  A Supreme Court case from the Korean War era shows why presidential power is at its “lowest ebb” today.  Reacting to the possibility of a labor strike at steel mills during that war, President Truman seized the output of mills, provoking the Youngstown Sheet and Tube case, decided in 1952.  The majority opinion rebuked Truman, but the words of the concurring opinion by Justice Robert Jackson (an FDR appointee and author of one of the most fascinating insider accounts of the FDR presidency, That Man) gave the most memorable explanation of the Court’s reasoning on balancing legislative against executive authority. Jackson wrote: The Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity….When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate….When the President acts in absence of either a congressional grant or denial of authority…there is a zone of twilight….When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”  There you have a blueprint for the Supreme Court.  I don’t have any sense of whether the Supreme Court, 67 years after Justice Robert Jackson’s Youngstown concurring opinion, will find a way to uphold the current president’s overreach–but Jackson laid out the way the Constitution ought to be interpreted.


“We Have Never Been Held Together By Blood Or Background”

So said former President George W. Bush at the memorial service in Dallas, Texas today for the five police officers killed last week. George W. Bush should be–though he is sometimes not–credited with scrupulous avoidance of anti-Muslim rhetoric after September 11, 2001. President Obama also addressed the memorial in a realistic and uplifting spirit.

We are burdened as a country this year with a presidential candidate who has, through insinuations and barely coded messages of exclusion if not through outright bigotry, has almost succeeded in normalizing white nationalist rhetoric. He, Donald Trump, has been abetted by our mainstream media’s addiction to false equivalence, as if politics was purely tactical and completely separated from morality and ethics.

George W. Bush’s words today did not, of course, mention his party’s nominee, but his comments stand as an implicit rebuke to the fantasy of restoring our lost greatness by building a giant wall to keep out otherness. We have had just one non-churched president, Abraham Lincoln. Trump would be our first openly, frankly heathen president.

Is President Obama Mature Enough For Harold And The Purple Crayon?

The Obamas got out to a fine bookstore on upper Connecticut Avenue today, Politics and Prose. He bought 21 books on Small Business Saturday, for “every age from 5 to 52,” he said. In his sixth year as President, George W. Bush, against type, said he was reading Albert Camus‘ The Stranger. Could Barack Obama, at 52 and at almost the same stage of presidenthood, be capable of drawing inspiration from Harold And The Purple Crayon? This could be a good omen for the healthcare website, as Harold models a fruitful integration of imaginative and managerial capabilities.

Who You Calling “Abducted by Imperialism”?

I am not sure if the President of Bolivia was forced to land in Vienna, longtime crossroads of spies, because of French and/or Portugese compliance with American imperial pressure. I am not sure if the Austrian search of the plane was contrary to international law. I do not know if Tom Hanks has already signed up to for his role in The Terminal Episode 2. I do not know if Air Force One smuggled George W. Bush, or Dick Cheney, or anyone else accused by anyone of being a war criminal, aboard its flight from Tanzania back to Andrews Air Force Base yesterday, or whether any nation attempted to deny Air Force One the use of its airspace. I do not know the plot of John Le Carre‘s next novel. I do not know how upset the French and Germans are that the NSA is bugging them in a big way. I do not know if Rand Paul will keep fighting for free trade with Ecuador and Bolivia so we can keep getting cheap flowers and cocaine.

I do know–or so says Google’s doodle–that Franz Kafka was born 130 years ago today.

Justice Roberts Guilty of Disorderly Conduct

The first draft, so to speak, of the opinion that “immobilized” (footnote 1 of Justice Ginsburg‘s dissent) section 5 of the Voting Rights Act came from Edward Blum of the so-called Project for Fair Representation, who celebrated the “return of constitutional order” today. Justice Roberts took his cue from Blum, stressing over and over the “equal sovereignty” of the states and the extraordinary deviance from that supposed Constitutional norm required by the VRA. Roberts did not hide his contempt for the 2006 reauthorization for an utterly unacceptable 25 more years–when it had so clearly been overdue for destruction by Roberts’ sophomore or junior year in college circa 1974. No matter that those reauthorizers included the President who nominated him, George W. Bush, as well as every single Senator who voted to confirm him (or not to confirm him–the VRA passed 98-0). Gutless fools, every one of them! The 2006 extension, wrote Roberts today, was based “on 40-year old facts having no logical relation to the present day.” Never mind the thousands of pages of testimony and documentation Congress considered, or Shelby County’s actual history of discrimination, which made it not only ineligible for the time being to bail out of the preclearance requirement but should have made it ineligible to bring a “facial challenge” to the VRA at all. Not to mention the numerous recent examples of clear racial discrimination Ginsburg cites against the majority’s willful amnesia. In Roberts’ remarkably bland and potted history of voting in the United States, he acknowledges (quoting from an earlier Court opinion) that the first century of “Congressional enforcement (of the 15th Amendment) can only be regarded as a failure,” but glosses over the nitty-gritty of racial subjugation and terrorism to hurry on to his main theme: the time for Second Reconstruction is up, now we move on the glorious new constitutional order, in which Texas and Mississippi and other states have already–yes, today–moved to do whatever the hell they feel like doing. An opinion, in sum, that is legally disorderly; and morally empty and blind.

Justice Ginsburg reads her Constitution and her history differently. Roberts picked at her arguments repeatedly, perhaps rattled at the prospect that her arguments might find 5 or more votes while he still sits on the Court, but he barely began to come to terms with the implications of her dissent. Ginsburg proclaimed doom and judgment on today’s majority: “the sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective” (36). The underlying reason for that failure, I would say, is the majority’s inappropriate sense of time scale. Their fantasy of a lost constitutional order restored puts some judicial issues in a more helpful perspective some of the time, but the United States Constitution, with us since 1787 or so, has provided a just, orderly framework for, say, blacks in Alabama for what percentage of the 226 years so far? Whose inconvenience and unaccommodation has really been more disorderly over the last 226 years? We should go back at least another 170 years though, should we not? Are you starting to feel like a man in unseemly and disorderly haste, Mr. Chief Justice?