Meida Errors

September 8, 2009

While many people contend that the mainstream media is biased, I’m always been content to assert that by and large they are just stupid and lazy.  Case in point, this CNN.com article on “czars,” which contains that following line:

But the positions are not subject to congressional oversight or Senate confirmation, which rankles critics of the administration.

As the point below explains, this is just WRONG, WRONG, WRONG, and WRONG again.  Czars are just as subject to congressional oversight as any other position in the government.  I have no idea where this idea originated, but I’d like to dispel it as quickly as possible.  There is nothing that a czar can, should, or could do that is beyond the scope of congressional oversight.  The only thing that stops congressional oversight is congressional will to conduct it or lack of political importance in an issue.  Legally, there is no barrier to oversight of a “czar.”  If you don’t simply take my word for it, consider these pronouncements from the United States Supreme Court:

According to the Supreme Court Congress’s oversight power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress. See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Barnblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135 (1927).  In Eastland v. United States Serviceman’s Fund, for instance, the Court stated that the “scope of its power of inquiry…is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).   Also, in Watkins v. United States, the Court emphasized that the “power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” See 354 U.S. at 187.  The Court further stressed that Congress’s power to investigate is at its peak when focusing on alleged waste, fraud, abuse, or maladministration within a government department. Specifically, the Court explained that the investigative power “comprehends probes into departments of the federal government to expose corruption, inefficiency, or waste.” Id. The Court went on to note that the first Congresses held “inquiries dealing with suspected corruption or mismanagement of government officials.”  Id. at 182. Given these factors, the Court recognized “the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.”  Id. at 200, n. 33

If that doesn’t convince folks, I’m afraid I don’t know what will.


Obama’s “Czars”: The Media Created Issue That Isn’t

September 5, 2009

Can someone please tell me what is the deal with all the media reports about the Administration’s Czars?  Even as one who generally is supportive of less Presidential power and more legislative based government, I can’ t seem to figure out what exactly about this issue is driving some people so crazy.

First, who exactly are we talking about?  Well, there have been a number of high profile people given jobs in the Executive Branch that the media has called “czars.”  We’ve had the “auto czar,” the “climate czar,” the “health policy czar,” the “compensation czar,” the “cyber-security czar,” and of course there is the “drug czar” just to name a few.   All in all, by some counts there are over 30 “czars” currently employed by the Obama Administration.  Okay, so what?  Every President since Nixon, Republican and Democrat has sought to organize the White House operation in such a way that suits their own decision making style and, to be perfectly honest, brings executive policy making inside the White House where it can  better be controlled.  This isn’t a new phenomena at all.  What does seem to be new is the proliferation of the term “czar” and that may be what is feeding the frenzy.  For lack of a better term “czar” is what is being used to describe a whole bunch of different positions inside the Executive Branch.  In other words, not all the “czars” have the same job description, some aren’t even inside the White House.  Most of the them do not report to the President directly, but rather to Cabinet officials or other high-ranking people inside the Administration.  In short, the term is misleading, and it is giving a lot of people the wrong impression about how the White House and executive branch decision making in general can and should work.

For starters, let’s dispel the myth that Obama is creating all of these positions out of whole cloth.  Not true.  Several of the media termed “czar” positions are actually created by Acts of Congress.  I’ll use two examples.  First is the “drug czar” whose actual title is the Director of the Office of National Drug Control Policy, which was created by act of Congress back in the Reagan Administration.  A second and more recent example is the “compensation czar,” which is an office inside the Department of Treasury that was created by the legislation authorizing the Troubled Asset Relief Program or TARP.

Other “czars,” however, have been created by Executive Order, but so what?  As I stated before, the President has a lot of implied authority and flexibility under the Constitution, specifically under his duty to “take care that the laws are faithfully executed,” to structure the White House the way he wants. Assuming that he doesn’t terminate or reassign functions that are statutorily assigned to specific persons or departments, the President can bring in advisers and other actors as he deems necessary and has the funds available to pay their salaries.

Ah, the astute among you may ask, don’t Presidental appointees have to get the “advice and consent” of the Senate?  No, not all of them do.  The appointments clause to the Constitution applies only to “officers of the United States,” which has been interpreted by the Supreme Court to include only those people who operationally execute the laws of the United States.  In other words, the position has to be afforded some type of executive function for “advice and consent” to be required.  Thus, cabinet and sub-cabinet level officials who actually implement and execute law and policy are required to go through confirmation, but mere advisers are not.  Inferior officers, or high ranking officials who report to “officers” must be appointed either by the President, without “advice and consent” or by the heads of departments.  Thus, the Secretary of Treasury, as an officer of the United States can appoint and supervise the “compensation czar” who would be an “inferior officer” and thus not required to get the “advice and consent” of the Senate.  Admittedly, I’m oversimplifying some of this, as this is a blog and the details are tremendous, but suffice it to say, as long as these “czars” are not operational, and provided that they must get the permission of an “officer of the United States” they can be appointed and hold their jobs without being confirmed by the Senate. Based on what is publicly available, most of the administration created “czars” appear to be advisory in nature.  Many, in fact, are housed and report directly to Cabinet officials or people inside the White House who have been confirmed by the Senate, such as the Director of OMB.  Thus, for now, the lack of Senate confirmations is not overly troubling.

Opponents may  nonetheless stammer, but if they aren’t subject to Senate confirmation that means they are operating without congressional oversight.  WRONG, WRONG, WRONG.  Senate confirmation does not have anything at all to do with Congress’s ability to conduct oversight.  From my point of view, and legally speaking, there is NOTHING that an administration does that is beyond the scope of congressional oversight.  (One can certainly argue that there may be things that “should” or “ought” to be outside the scope of congressional oversight, but that’s a policy argument not a legal one.  I’m more than happy to have the debate, as I’m pretty confident that I’m right, seeing as how it’s my job.) Phrased another way, the only thing that stands in the way of congressional oversight is Congress itself.  A popular question at confirmation hearings is whether the appointee will make themselves available to the committee in the future for oversight purposes.  Everyone answers yes, because that is what the Senate wants to hear before voting to confirm.  At most, however, this creates a political obligation on the part of the appointee to appear when asked.  It does not create a legal obligation, and the failure of a person in the administration to make that pledge does not render them immune from congressional oversight.  In fact, if Congress wanted to, the very day after a “czar” is appointed and beings work in the White House, a committee of jurisdiction could send a letter to the “czar” asking that they appear before the committee to answer questions about their job description, policy positions, salary, and anything else the committee wants to know.  If the “czar” refuses, well then the committee can issue a subpoena ad testificatum and fight out the battle with the White House.  Congress will win the fight to do oversight of the “czars” every time if it would simply put its gloves on and step into the ring.

So the “czars” aren’t illegally appointed, aren’t immune from oversight and aren’t really operational, but merely advisory.  What again I ask is the problem?  As I mentioned above, this is not a new concept.  Henry Kissinger served as both National Security Adviser, a non-advice and consent position by the way, and Secretary of State at the same time, didn’t that make him the “foreign policy czar” of his time?  Tom Ridge, before becoming the first Secretary of Homeland Security, served as President Bush’s Homeland Security coordinator inside the White House and without advice and consent.  Wouldn’t he be called the “Homeland Security czar” today?  In fact, the position of Homeland Security coordinator remained inside the Bush White House even after the creation of the department, and no one ever said anything about that, so far as I can recall.  Those are just the couple of examples the popped into my head as I was typing this, but I’m confident that if I stopped to think for 10 minutes I could come up with many other high-profile powerful people inside various White Houses that could easily be called “czars” had the media decided to.

My defense of the “czars” should not be mistaken for agreement with the decisions of the President to go this route, or with Congress’s seemingly acquiescence of the growth of policy control within the White House.  There are some serious organizational and decision making implications of these types of positions that should be looked into in a thoughtful and deliberative manner.  True, many of the issues that have “czars” are cross-cutting, involve multiple agencies in several cabinet departments (health care, climate change), and are exceedingly complex such that at some level a coordinator of sorts might not be such a bad idea.  That case, if it’s available needs to be made to Congress and to people who are questioning these positions.  Thus far, it hasn’t been done, at least not consistently or effectively.

As with many things, the Congress needs to get off the sidelines and begin conducting some serious oversight of this issue.  Not the gotcha type oversight we saw in the Clinton and G.W. Bush years, but some real, honest to goodness long term looks at the power of the White House the scope of executive control of policy making and the centralization of regulation at the federal level.  I don’t think very many people in Congress and elsewhere will like what they see.   My message to Congress, stop being distracted by non-issues and focus on the bigger picture.  My message to the media, be more diligent and careful in your terminology.  Your overuse of the term “czar” has rendered it meaningless and inconsequential.  Do the hard work of figuring out what these people are doing and how much power they really have instead to just taking the White House’s word for it.  We’ll all be better off if people would do their jobs instead of just sensationalizing the political talking point of the day.


Nitpicking

September 2, 2009

My good friend over at The Cranky Conservative made the following statement yesterday afternoon in the midst of a much larger post about the late Senator Kennedy and others:

The idea that someone would be a member of Congress for such extended periods of time would have flabbergasted the Framers.

I’m wondering if he’s actually correct.  Is it the length of public service that would have flabbergasted the Framers, or is it the exclusivity?  In other words, when one looks at many of our Members of Congress we see terms of 30+ years, but we also see many who have never really had any other career or occupation other than being a Member of Congress.  Vice President Biden is a good example, elected to the Senate at age 29 (he didn’t take office until after his 30th birthday so it’s all constitutional), he served exclusively in that capacity until being elected VP last year.  I don’t know what he did before that, except go to law school.  Now, personally I didn’t graduate law school until I was 25, which wouldn’t leave much time for an alternate career.  But back to the point.  I don’ t think it’s the length of service that would upset the Framers as much as the idea the one can make a life time career out of being a Member of Congress.

The notion of being a public servant wasn’t antithetical to the Framers.  In fact, many of them were career public servants, Madison, Mason, Randolph, Rutledge, Marshall, Jay, Hamilton, all spent most of their professional lives in public service, serving at the various levels of government and in various positions.  Government, however, in their time was a part-time occupation.  All of the above mentioned public figures had private jobs as well.  Many were private lawyers, writers, or farmers, who tended to those jobs when the government was not in session or their duties permitted them to be elsewhere.  None of them likely would have held themselves out to be Congressmen or Senators as their full time occupation, yet each served for many many years as elected officials.

The concept of a part time legislator at the federal level would be unheard of today.  Even if Congress wasn’t in session virtually all year around, the myriad of ethical rules, conflicts, and modern circumstances would make it nearly impossible for a Member to hold more than one profession.  Of course, many modern Members own businesses, or other positions, but they are not largely responsible for the day-to-day operations of those endeavors.  Rather, they have risen to a position of prominence that they can turn functional and operational control of those entities over to others and concentrate full time on being a Member of Congress.  The few who have come from professions, namely doctors, have had a rough go in modern times.  Sen. Frist, reportedly didn’t keep up his continuing education requirements for his physician’s license in Tennessee (this is not to be read as an indictment or criticism, but merely an example.  I think he eventually straightened this all out and, to my knowledge, he remains one of the top rated and most respected heart surgeons in the country), and Sen. Coburn has had difficultly with the Senate ethics rules regarding his ability to maintain his OB-GYN practice back in Oklahoma (I’m not sure what the final disposition of this has been).

In short, I don’t think that many, if any, of the Framers would object to the idea of people dedicating long portions of their lives to public service as elected officials.  I do, however, believe they would have a serious problem with the idea that being an elected official is a vocation in and of itself and not simply something one does in conjunction with more noble private occupations.

But then again, Cranky does have the Politics Ph.D, so what do I know.


When He’s Right He’s Right

September 1, 2009

I don’t often agree with Mark Levin, but this, from The Corner, is correct, in my opinion:

As for nation-building, there are times to be for it and times to be against it. The Marshall Plan was all about nation-building, but not in the abstract. If it serves American national-security interests, and can be coherently justified as such, then it’s prudent. Nation-building in, say, Haiti, would be ridiculous. The general test is whether doing so helps protect our country. To have a doctrinaire objection to it under all circumstances would be imprudent.

Thoughts from the penut gallery?


I wish I were more than a mere blogger

August 31, 2009

Because then I could have written this rather impressive piece on health care reform.  I don’t agree with every sentence, but on the whole it comes very, very close to my own views on how to refrom (fix) the current system.  From a self-described Democrat to boot.


The Attorney General Isn’t Independent; All Prosecutions are Political; and the So-Called “Victim’s Rights” Debate

August 31, 2009

As was expected there was a lot of writing and discussion over the weekend about the Attorney General’s decision to appoint a special prosecutor and open a preliminary investigation into certain CIA interrogations.  Three elements of this discussion, each of which arose in various forums, routinely ticked me off.  So, I figured I’d use the blog for it’s intended purpose; to rant about things that I can’t stand hearing/reading, especially from elected officials, media types, and other commentators who are supposed to know better.

First, is this idea that the Attorney General is some independent actor, which, according to some, justifies his actions because no longer is the Department of Justice a political tool of the White House.  This is wrong on so many levels that I don’t even know where to start.  The Attorney General and the Department of Justice are not independent of the White House.  To the extent that they operate as such it is because the White House has decided that is the way it is going to be.  The Attorney General serves at the pleasure of the President, he can be fired at any time for any reason, including doing things that the President does not agree with.  The fact that such action may be the “right” thing to do in a given circumstance is not enough to save an AG’s job.  Sure, some AG’s and DOJs have operated more independently than others, but that’s a political decision, not a legal requirement.  Hence, while I disapproved of many of the decisions by the Bush DOJ, there was nothing illegal or unconstitutional about how they did things.  Secret opinions, close connections to the White House Counsel’s office, end runs around the AG, all problematic to be sure, and deeply misguided, in my opinion.  None of it, however, was illegal or unconstitutional.  Note, my conclusion is limited to the how, not necessarily the what – i.e., many of the opinions of the Bush Office of Legal Counsel were, in my opinion, constitutionally suspect.

In short, at the federal level we do not have an independent law enforcement body.  Could we?  Sure, we could, but it would require either a congressional statute dramatically changing the composition of the DOJ, or amending the constitution to provide for another federally elected official.  Let’s deal with the first option.  Congress could, if it wanted to, make the DOJ more politically independent.  Congress could, for example, give the AG a fixed term of office, say 15 years.  It should be noted that that time wasn’t arbitrarily chosen.  Current law gives the Director of the FBI a 10 year term and that position reports to the AG, so naturally you would want the lead position to have a longer tenure of office.  In addition, Congress could provide statutory removal protection making it much more difficult for a President to fire an AG.  There are many other types of actions that Congress could take to make the AG more independent, but they haven’t been done, therefore, the AG still works for the President and is not an independent actor.   Moving to the second option, currently the Constitution calls for only one chief law enforcement officer, the President.  Adding a second, would require changing the text via an amendment.  In many states, the Attorney General is an elected official, and often is a stepping stone for Governor or higher office.  In fact, one can argue that in some states, such as Texas, the Attorney General is more powerful than the Governor, though not perhaps as politically relevant.  We could, if we amended the Constitution, have an election for Attorney General, just like at the state level.  Such a move would arguably make the AG independent and accountable not to the President, but to directly to the electorate.  Of course, you run the risk of having a President and an AG of different political parties, with likely different priorities, values, and goals.  This could complicate matters greatly, especially if the AG decides to spend a lot of time and resources investigating the Executive Branch, justly or unjustly, such a division of responsibility will have dramatic consequences.

Which leads directly to my second gripe.  Where did the notion come from that the investigation and prosecution of criminals is something other than a political act?  All prosecutions are political, at all levels of government. From petty theft all the way up to public corruption, bringing the full force of the government against individuals is always political, pure and simple.  The converse is also true.  Deciding not to bring criminal actions against persons is also a political act.  That’s why prosecutorial discretion is among most powerful weapons that the government has in its law enforcement arsenal.  The power not to proceed can often be more effective than proceeding with criminal cases.  It was political when the Bush Administration decided to prosecute Scotter Libby, and when it decided not to pursue cases against the CIA.   Similarly, it is political now that the Obama Administration has decided not to pursue the allegations of voter intimidation in PA, and has decided to look into the CIA.  This always cuts both ways.  Contrary to popular belief, not all people who the government knows violated the law are criminally prosecuted.  Some are “flipped” and become informants against higher ranking more powerful criminals, others are simply ignored as their crimes (simple possession of narcotics) are deemed not worth the resources required to pursue.  Either way, it’s a political decision, pretending anything else is naïve and foolish.

So, if the DOJ is not independent and prosecution is always political, it stands to reason that the recent decisions by the Attorney General are partisan.  No, not necessarily.  Let us not confuse political decisions with partisan decisions.  The two things can and should be separate.  One does not want a DOJ that only goes after Republicans or only pursues certain types of criminals.  That said, there is always priority setting and that can take on partisan overtones.  For example, the Bush DOJ placed a high priority on political corruption cases and, of course, terrorism related probes.  To their credit, on the political corruption front, they nabbed both Republicans and Democrats in their probes.  That said, however, the persons caught were generally outside the Executive Branch, focusing primarily on Congress and State governments for their biggest prosecutions.  Dedicating resources this way of course meant fewer prosecutions in other areas of the law.  For the Bush DOJ this meant virtually no antitrust enforcement and fewer major drug cases.  It not yet known what the full priorities of the Obama DOJ will be, but it sure looks like they are willing to go in a different direction, including being willing to prosecute people inside the Executive Branch, for legal violations.

Finally, while I’m ranting, I want to say a brief bit about “victim’s rights.”  Saying that they don’t have any goes too far, but to suggest that prosecutors ought to take certain actions for the best interest of the victim gives them far too much influence on the process.  Ever wonder why criminal cases are always called “the people of the State of X” v. Defendant.  Or, in the case of the feds, the United States v. Defendant.  It’s because the prosecutor doesn’t represent the victim, but rather the “people” as a collective whole.  Yes, a criminal has done wrong via the victim(s) of their crimes, but they have violated the laws of the state or country and it is the later transgression for which they are being punished.  Phrased another way, prosecutors vindicate societies rights, not the victims.  I know that sound harsh, but that is the way it is, has always been, and, in my opinion, always should be.  In many instances, vindicating society for the criminal act will also provide “justice” to the aggrieved victim, but other times when society requires a plea bargain, lesser sentence, or even the rare pass for “political” reasons,  victims need not get in the way with complaints, press conferences, and other demands on the prosecutor.  The prosecutor needs to be sensitive to the needs of the victim, of course, but he/she also has a duty to the “people,” which may be different than the needs of the victim or their family.  We can be compassionate, respectful, and demand justice, but to suggest that things be done to vindicate the “victim’s” rights, drives me nuts.  Prosecutors should pursue truth and justice to the fullest extent that the law and available resources permit.  It’s a hard enough job without tacking on the grief, anguish, and frequent need for vengeance that a victim might add to the equation.  Dispassionate, long term justice is always best, and victims tend to be narrowly focused and shortsighted.  Let’s let the professionals do their jobs without adding barriers and requirements that they factor into consideration things that are ultimately not helpful to the goal.

End of rant.  We have the best justice system in the world and it is not independent, but is highly political, and shouldn’t as a general rule take into account the “rights” of the victims.  Given all that and it’s other imperfections, I still wouldn’t trade it for any other system, would you?


Have Lawyers Killed the War on Terror?

August 27, 2009

Yes, says Daniel Henninger in today’s Wall Street Journal, but I’m not so sure.  Putting aside any professional bias, I just don’t think that Mr. Henninger makes the case.  He relies on three recent events.  First, the release of the convicted Lockerbie bomber Abdel Basset Ali Megrahi by Scottish officials. Second, the decision my Attorney General Holder to appoint a special investigator to look into the CIA interrogations.  Finally, the CIA Inspector General’s report generally.  Each of these, according to Mr. Henninger, are lawyer driven mistakes that “in toto” will have an undeniable chilling effect on the “war on terror” such that no person in their right mind will do anything even remotely necessary to continue its prosecution.

Even if Mr. Henninger is correct in his assessment – and I’m not sure he is – the problem, it seems to me, rests not with the lawyers, but rather with the law itself.  Even more accurately, the problem rests with the fact that the needs in the war on terror arose faster than the law could adapt to meet them.  This is not a problem unique to the war on terror, nor is a particularly new phenomena. The law typically lags behind all sorts of things, technological advancement being the most prevalent example.  Of course, it didn’t have to be this way.

One of the many legitimate criticisms that can be levied against those that were on the front legal and political lines in the early days of the war on terror is that they failed to seek systematic changes to the law in a timely manner.  In other words, they knew, or quickly should have discovered that the law as it existed, and to a large degree still exists today, is not well suited for the type of battle that we are currently fighting.  Rather than take the time and expend the political capital to change and modernize the laws, many of those individuals sought to merely reinterpret and re-implement the existing law broadly, so that it would provide cover to those taking what they thought were the necessary and justified actions on the ground.  This worked in the short-term, but now, years later, we are discovering that many of those interpretations were inaccurate, not well conceived, poorly reasoned, and ultimately can not withstand even the slightest bit of scrutiny.  As a consequence, some of the actions of the current administration can be legally justified.  Note, this is not to say that the contemplated actions (i.e., criminal prosecution) should be taken, that’s in large part a political judgment, as not everyone who can be investigated and ultimately criminally prosecuted should be.  Rather, it is merely to point out that the actions have a basis in the law as it currently stands.

For example, take the release of convicted Lockerbie bomber Abdel Basset Ali Megrahi by Scottish officials.  I’m by no means an expert on Scottish law (for that we need Sen Specter (D-Pa)), but the concept of “compassionate release” has been around for centuries and can be rather easily defended on its own merits.  Had the Scottish wanted to exclude terrorists from the law’s application they most certainly could have, and many will argue they should have.  They haven’t, and consequently the events of the last few days have unfolded.  I don’t know enough to say for sure, but even if the decision was purely discretionary, it can be defended as consistent with the law and previous application of the doctrine of “compassionate release.”  It is more than likely that there were competing precedents, persons who may have qualified on medical grounds but whose crimes were so heinous that release simply wasn’t justified.  Maybe the law in Scotland hasn’t encountered a similar situation before, or maybe it was simply a close call that went against the wishes of the United States and the victims families.  Either way, the result was avoidable by simply taking the option away from the Minister and removing his discretion when it came to people convicted of terrorist acts.  Relying solely on executive officials to always make the right policy decision is what led to this situation, not the law itself, which could easily have been changed.

Similarly, the previous administration relied heavily on administrative interpretations and discretionary legal opinions to advance it’s policies regarding the prosecution in the war on terror.  The problem with this approach is precisely what we are seeing now.  Administration opinions and discretions change with the political and philosophical direction of the President.  New President, new interpretations.  There’s nothing new, nefarious, or surprising about this, it’s been happening since 1801 when Thomas Jefferson and the Democratic-Republicans assumed control of the White House from John Adams and the Federalists.  Jack Goldsmith’s book The Terror Presidency: Law and Judgment Inside the Bush Administration is excellent on this point with respect to many of the previous Administration’s decisions.  Mr. Goldsmith is politically and philosophically in favor of many of the policies implemented, but he forcefully, and I think persuasively, argues that they should have been achieved by legislating changes in the law, not by administrative interpretation.

In sum, if the war on terror is ending, it’s not because of its being overlawyered.  The problems idenfied in the op-ed exist because the law still hasn’t been adequately adapted to suit the war’s needs.  Executive officials like the Attorney General are charged with implementing the law, not making it.  It may be the case that the implementation of these laws as they currently stand will have an unwanted and unnecessary chilling effect on our ability to fight the war on terror.  I remain dubious of that proposition, but if it’s true, the answer lies not in faulting the lawyers who are currently making the implementation judgments (though if they make poor ones, they are of course accountable), but with those who decided to take the easy way out and not seek the kind of long-term, permanent changes that were, and may still be, necessary for success in this fight.


Follow

Get every new post delivered to your Inbox.