Andrew C. McCarthy's Blog, page 33

Obama Skirts the Democratic Process

President Obama has fulfilled a second Tom Friedman fantasy -- the first being that he is, in fact, President Obama. “I have fantasized#...#that, what if we could just be China for a day,” the New York Times star columnist gushed for his ponderous fellow travelers on Meet the Press. “I mean where we could actually, you know, authorize the right solutions.”

It was May 2010, not long after Obama and a Congress dominated by Democrats had rammed through Obamacare, the most sweeping government usurpation of private industry and individual liberty in American history. Soon they’d be adding Dodd-Frank’s paralyzing intrusion into the financial sector. Yet, despite the shock and awe of hope and change, here was the Progressive Poobah, grousing that “my democracy” was failing “to work with the same authority, focus and stick-to-itiveness” as a totalitarian Communist dictatorship. After all, unburdened by our remnants of free-market competition, by the gridlock and sausage-making of two-party politics, the Chicoms produce trade and budget surpluses, state-of-the-art airports, and enviro-friendly high-speed rail. All we can manage, “on everything from the economy to environment,” Friedman complained, are “suboptimal solutions” -- apparently not to be confused with the optimal Chinese menu of forced abortions, religious repression, secret police, kangaroo courts, and air you could cut with a chopstick.

#ad#Friedman is surely smiling today. So, we can assume, are other leftists, such as Peter Orszag, Obama’s former budget-overrun director, and Bev Perdue, the governor of North Carolina. Right after the midterm shellacking that swept Republicans into control of the House -- a roadblock that has stymied some, but by no means all, of Obama’s transformational agenda -- they said aloud what other Democrats were thinking: America’s problem is too much democracy. This week, the president solved that problem, shoving another page of the suboptimal Constitution through his made-in-China shredder.

In sum, Obama dissolved the separation of powers, the framers’ ingenious bulwark against any government branch’s seizure of supreme power -- and thus the Constitution’s bulwark against tyranny. The president claims the power to appoint federal officers without the Senate’s constitutionally mandated advice and consent. He does so by claiming unilateral powers to dictate when the Senate is in session, a power the Constitution assigns to Congress, and to decree that an ongoing session is actually a recess. This sheer ukase, he says, triggers the part of the Constitution we’re keeping because he likes it -- viz., the executive power to fill vacancies without any vetting by the people’s representatives.

Mind you, a president is the only government official constitutionally required to swear that he will “preserve, protect and defend” that Constitution. We are talking here not just about Obama’s characteristically breathtaking arrogance. These are profound violations of his oath and of our fundamental law. But rest assured he will get away with them. For that, Republicans can thank themselves and their surrender to statism.

Obama is hot to move forward on two fronts. The first is the Consumer Financial Protection Bureau. The CFPB is the monstrous Dodd-Frank’s crown jewel. Congress unconstitutionally delegated to it virtually unreviewable power to “dictate credit allocation in the U.S. economy,” as C. Boyden Gray put it. Not just bank lending -- the law invests dictatorial power in a single CFPB director over thousands of American businesses. The CFPB is not just part of Obama’s design to splay the government’s tentacles throughout the private economy; it is also key to his reelection narrative: Leviathan, no longer shyly creeping but heroically swashbuckling through predatory capitalists to rescue the noble “99 percent.”

By law, however, the CFPB cannot operate until its director has been confirmed. Before the midterms, Senate Republicans lacked the votes necessary to stop the CFPB from being enacted, but they now have the numbers needed to block confirmations -- or, in this instance, to extract concessions in exchange for confirmations. In our constitutional republic, this is what is known as politics. That is not a dirty word. Indeed, it is the very horse-trading that leftists and their media cheerleaders indignantly demand to be afforded even when they don’t have the numbers to force their opposition’s hand.

#page#So Republicans have declined to confirm Obama’s nominee, Richard Cordray (Ohio’s former attorney general, beloved of the trial lawyers). But being Republicans, they are not, of course, demanding repeal of this despotic CFPB coup -- just as they have no real desire to slash any of the bulging administrative behemoth. Yes, they talk about slashing it, but what they actually want is to control it. So their bold pitch is to make the CFPB marginally more accountable and, as night follows day, bigger: to subject it to Congress’s appropriations process (as if that will give the public a real say in how it operates); to have bank regulators check its likely excesses (playing into Obama’s narrative about protecting Wall Street at the expense of Main Street); and to expand its leadership to several board members rather than a single unelected technocrat (because creating more patronage slots has been so effective in reining in the EPA and the rest of the bureaucratic maze).

#ad#Because the GOP establishment is statist lite, they play into the president’s hands. Removing the Dodd-Frank deadweight from a crippled economy, killing an authoritarian bureaucracy in the cradle -- that is the kind of campaign that would have stoked passion, highlighting a very different vision of a country breaking free of its regulatory chains. But no one is going to get whipped up over a few technical tweaks on the one-way road to bigger Big Government. Obama has a simple story to tell: “Obstructionist Republicans are trying to stop me from saving you.” By comparison, the Republican story -- “We’re all for statist cures, just with a Washington-style nip here and tuck there” -- makes your eyes glaze over.

The president thus saw his opening to ride roughshod over the Constitution’s requirements that the Senate give its assent before top appointees wield power, and that this approval can be dispensed with only when the Senate is in a recess. Far from shaping the battlefield for a fight over first principles, Republicans have fallen all over themselves to praise Cordray’s qualifications. They’ve made certain everyone knows they have no problem with the concept of a CFPB. Congress, moreover, has been in a de facto adjournment for weeks. To be sure, the gimmick by which the session has been kept technically alive -- a senator opening the record for a few seconds every couple of days but not doing any real business -- is not only constitutionally viable (indeed, Obama’s own Justice Department endorsed it before the Supreme Court a year ago). The ruse was actually designed by Democrats and endorsed by then-senator Barack Obama for the specific purpose of barring recess appointments -- by a Republican president.

Our community-organizer-in-chief understands the uses of lawlessness (known in the biz as “direct action”). Republicans have implicitly endorsed his CFPB and his nominee. With that, and with the media spinning the story his way, Obama is not a law-breaker but the courageous crusader for the little guy; Republicans are not liberty’s vanguard but the petty obstructers of progress.

The president’s second front is, as ever, Big Labor. He also used his supposed recess power to appoint three members to the National Labor Relations Board. This will ensure that the NLRB will not lack for the necessary quorum to do the bidding of union bosses who, in turn, keep the campaign cash and direct-action services churning for the Democratic party. Obama was even more audacious on the NLRB appointees than on Cordray: He submitted two of the three names to the Senate on December 15, right on the eve of the recess that wasn’t a recess. There is not even a fig leaf of GOP obstructionism to complain about -- the Senate was given no realistic opportunity to do background checks or hold committee hearings, much less hold an informed confirmation vote.

Again, however, Republicans have not even attempted to sound the alarm for folding up the NLRB, even after its unelected bureaucrats outrageously presumed to begin telling private businesses, like Boeing, where they would and would not be permitted to operate. The GOP is not making the overarching case for getting Americans out from under the statist thumb; they are saying they would apply the same thumb more benignly -- by slow-walking enough confirmations, they figure the 2012 election will mean vacancies filled by Republican-preferred bureaucrats.

#page#That is to say, the GOP has already surrendered on the greater constitutional transgression: the transfer of power from the people to the administrative state. To take another example, remember the Independent Payment Advisory Board? Like CFPB birthed by Dodd-Frank, the IPAB is an unaccountable, authoritarian panel created by Obamacare. It will ration health care through price controls. As Stanley Kurtz recounted in National Review, when the democracy-dissing Orszag was still working for Obama, he crowed that the IPAB is “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.” That is supposed to cheer us, since Congress has lower ratings than Keith Olbermann. But Orszag was wrong: Congress is not the sovereign; you are. It’s your control over your life that your representatives are yielding to cadres of “expert” technocrats at the IPAB, the CFPB, the NLRB, and the rest of the faceless bureaucracy that bends inevitably to the statists who create and sustain them -- a bureaucracy that coerces our besieged private sector to shift trillions of dollars from the production of value to compliance costs.

#ad#Republicans have accommodated themselves to that gross distortion of constitutional governance. Realizing this, President Obama calculates that the GOP will have little difficulty swallowing this latest, lesser indignity: He no longer deigns to consult them on the staffing of a sprawling, suffocating bureaucracy over whose control they’ve already abdicated. He has taken their measure. He knows that, after a few days of huffing, puffing, and reading the editorial pages, they’ll shrug their shoulders and move on -- mumbling some drivel about how they only control one-half of one-third of the government (that would be the one-half of one-third without whose approval the beast could not be funded).

GOP frontrunner Mitt Romney’s biggest applause line is his promise to reverse Obamacare by executive proclamation: He’d unilaterally issue “waivers,” purportedly relieving states from compliance with congressional statutes -- just as Obama has assumed the power to decide which businesses have to comply. That this is implausible -- that it does nothing to repeal the law or stem the legally mandated flow of funds to Obamacare’s gigantic bureaucratic infrastructure -- is a point for another day. For now, the point is that Congress is increasingly irrelevant; the Constitution for a self-determining people is increasingly irrelevant. Neither party seems to have much of a problem with that. All that matters is who gets to wield executive power and staff the administrative state. We’re becoming Tom Friedman’s fantasy -- and we’re apt to find it suboptimal. 

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Meet the Jihadist War Criminal Obama Plans to Release from Gitmo

At AEI's blog, Marc Thiessen provides the low-down on Mullah Mohammed Fazi, one of the Taliban terrorists President Obama envisions releasing from Gitmo, in return for ... nothing -- it is the super-power's way to plead with the terrorists to please please come to the negotiating table, nothing more (although I'm certain it makes our "mediator's" day).

As Marc recounts, Fazi is still detained because the military assessed him to be a "high risk," if released, to return to the jihad and kill Americans. He is also wanted by the U.N. for war crimes, implicated in the murder of thousands of Shiites while serving as the (Sunni) Taliban's army chief of staff. Moreover, he is a narcotics trafficker; he has continued agitating against the U.S. while detained at Gitmo; he is so high up in the Taliban that he got away with threatening the organization's emir, Mullah Omar; and our military concluded that he would pose a threat to the Afghan government -- the construction of which is a large part of the reason our forces have been putting their lives on the line in Afghanistan for a decade.  

Marc includes our military's own threat assessment spelling the above out in painful detail. He also refers to a post by Michael Rubin with these important observations:

Obama has sought not only to engage the late Libyan dictator Muammar Qadhafi, current Syrian strongman Bashar al-Assad, and the Egyptian Muslim Brotherhood, but also Iranian Supreme Leader Ayatollah Ali Khamenei and Venezuelan dictator Hugo Chavez. In each case, poorly considered dialogue backfired on U.S. interests and, more often than not, on the people living under the thumbs of these dictators or Islamist groups.

Now word comes that Obama wants not only to talk to the Taliban, but also to reward it for coming to the table by releasing high-value detainees before a new round of talks even begins. Forgotten is the fact that between 1995 and 2000, the Clinton administration and its State Department undertook high-level negotiations with the same Taliban leaders who lied and stalled, hemmed and hawed, in order to protect Osama Bin Laden as he planned 9/11. Alas, just over a decade after 9/11, Obama and his aides seem intent on repeating the mistakes that led to that day.

Re: re: Reid Backs Obama

Jonah, just to be clear, I'm not certain it's unconstitutional either. Not all encroachments cross that line, and as I've said many times, the lines are intentionally not bright. The framers assumed there would be lots of tension between the political branches, and one side's play need not be unconstitutional before the other side uses its arsenal to fight back.

As far as fighting back is concerned, I am mindful of the calendar with respect to everything Obama does. But being a Republican does not necessarily mean one has to lose every one of these duels. Obama wants a lot of people appointed and things done that would be deeply unpopular if the public's consciousness were raised to them. And sometimes, traps or not, things are worth fighting over -- a category into which I would put the NLRB and the CFPB.

If you get the opportunity to pick a fight that shines an election season light on Obama's imperial administrative state, the radical czars and officials he's got running things, and the lengths to which they wish to intrude on what used to be the private sphere, that is a fight to welcome. Yes, the GOP could screw it up, but I don't think they excite voters very much by letting Obama walk all over them, either. Turnout at the polls was not particularly impressive last night -- and it may even have been down from four years ago if you subtract the Democrats and independents who voted in the GOP caucuses because the president is unopposed. It is not just the field of presidential candidates that people find less than inspiring.

Reid Backs Obama on Recess Appointments

Iain (here and here) and Dan (here) are right to be outraged at President Obama's brazenness (if not lawlessness) on the recess appointments, but it is not like he lacks accomplices. Senate Majority Leader Harry Reid has backed the president's play, according to the Hill. Senate Democrats will no doubt echo that support.

The hypocrisy here is blatant, even by congressional standards. In 2007, Reid kept the senate in pro forma session in order to block President Bush from making recess appointments -- particularly, the eminently qualified Steve Bradbury's appointment to head DOJ's Office of Legal Counsel. "I had to keep the Senate in pro forma session to block the Bradbury appointment," Reid recounted in 2008. "That necessarily meant no recess appointments could be made.

The Senate has similarly been holding pro forma sessions over the current holiday recess to keep the session technically ongoing, thus blocking -- or at least they thought they were blocking -- Obama, just as Bush was blocked. But Obama ignored the move, reasoning that such brief sessions (held roughly every three days and lasting only seconds) should not count. Despite the position he took during the Bush years, Reid today said, "I support President Obama's decision." His rationale, if you can call it that, is that while he was just trying to block recess appointments, Republicans are blocking such appointments for the specific purpose of re-legislating the Dodd-Frank law.

The theory of separation of powers is that the respective branches have a powerful incentive to protect their turf and will therefore police each other's encroachments. Apparently ... not so much. In any event, since the president is in the hardball business, he can only be stopped (or at least discouraged) if Congress uses its constitutional tools in kind. It is worth remembering that the government cannot function if the House declines to raise and spend money, and Obama cannot get anyone appointed from here on out unless the Senate, once it is in session, can muster 60 votes. So my question is: are Republicans just going to grouse about this, or are they actually going to do something about it? 

Report: Government Vastly Overstating Immigration Enforcement

This is remarkable. A just-released Syracuse University study indicates that the government is overstating its enforcement of the immigration laws by a staggering amount.

According to TRAC, Syracuse's Transactional Records Access Clearinghouse, the Immigration and Customs Enforcement agency (ICE) has overstated the number of immigration law violators apprehended by a 5:1 ratio. And that's the good news. Deportations were overstated by 24:1 and detentions by 34:1.

TRAC says that ICE has represented, not only in press releases but in congressional testimony, that in 2005 it apprehended 102,034. The records it produced, however, show only 21,339. It further claimed 166,075 deportations but documented only 6,906; and said it had detained 233,417 when the paperwork shows only 6,778.

TRAC notes that the Obama administration delayed complying with its FOIA request for nearly two years (it was submitted in May 2010). TRAC argues that ICE has either geometrically inflated its performance or grossly violated FOIA in withholding information. ICE, according to TRAC, has also attempted to obstruct compliance with FOIA by claiming that Syracuse University is not an academic institution, by insisting that previously provided statistical data was suddenly considered "unavailable," and by charging over a half-million dollars in processing fees.

More here.

The WSJ's Taxing Arguments

I'm trying to understand the Wall Street Journal editorial's comparison this morning between Romney and Santorum on corporate taxes. The editors take Rick to task for "rarely talk[ing] about his larger economic agenda, other than to stress his desire to 'revive manufacturing.'" This, the editors imply, compares unfavorably to Mitt's emphasis on the economy -- notwithstanding that the Journal is singularly unimpressed by Mitt's overall timidity, his lack of "ambition" when it comes to growth, his "trivia" ridden 59-point jobs plan, and "his refusal to rule out a value-added-tax[.]"  

But what seems really confusing is the Journal's argument on corporate taxes. The editors are down on Santorum's disparate treatment between manufacturing and other sectors -- from the current punitive 35% rate, he'd cut the former's rate to zero and the latter's "only to 17.5%." Now I admit to sympathizing: in my mind, there should be no corporate tax since it only gets passed along to consumers anyway, and I'm instinctively averse to government central plans that rig the playing field in favor of some producers over others. But that said, the Journal does not mention Romney's position on corporate tax, so you're left to wonder how he compares. According to this Forbes op-ed by Paul Hoffmeister, though, Romney's plan is to cut the corporate rate by only 10% (i.e., to 25%) for all businesses.

Am I missing something? Even if you don't like the unequal treatment, wouldn't we be better off (from the standpoint of competitiveness, growth, and employment) with most businesses paying only 17.5% and the rest paying zero than with every business paying 25%? Is there something in Mitt's 59-point plan that makes a better case for him on this? 

While You Were Watching Iowa, Obama Was Springing Taliban Terrorists from Gitmo

The Guardian reports that the Obama administration has "agreed in principle to release high-ranking Taliban officials from Guantanamo Bay in return for the Afghan insurgents' agreement to open a political office for peace negotiations in Qatar."

Our new favorite Muslim Brotherhood mediator, Sheikh Qaradawi, is doing great, dontcha think?

But Is He Still 'Fed Up'?

As Hans notes, Rick Perry has taken the lead in asking the federal courts to invalidate the arduous state qualification requirements that have kept him and several other GOP candidates off the ballot in Virginia. For what little it's worth, I think the Virginia requirements are too taxing -- that seems self-evident given that only Mitt Romney and Ron Paul have qualified. As a conservative, I'd like to see some conservatives in the mix, and as a citizen (albeit not of Virginia) I'd like to see all the obviously serious candidates able to compete in all the states, especially one as critical as Virginia will be come November.

But let's put aside what we'd like to see and consider what is at stake in the lawsuit. It is nothing less than the sovereign state of Virginia's power in our federalist system "to set the qualifications for those running for representative office." The phrase I've quoted comes from Fed Up: Our Fight to Save America from Washington, Governor Perry's book, which he has often touted on the campaign trail.

The book is a paean to the state's rights, particularly the Tenth Amendment, which reserves to the states and the people any powers not delegated to the national government by the Constitution. What  particularly -- and aptly, I think -- agitates Perry is the propensity of the federal courts and Congress to adopt extravagant constitutional theories that enable Washington to tell the states how to run their affairs. The governor strongly argues that our system means for the states to govern themselves with minimal interference from the federal authorities -- the central government being limited to its few enumerated powers, which are largely concerned with security against foreign powers. Perry thus lauds the framers (at p. 25) for leaving to the state legislatures such matters as determining "the time, place, and manner" of elections within the state (he mentions "congressional elections" but there is no reason to think presidential primaries should be any different), as well as the power "to set the qualifications for those running for representative office[.]"

Here is the lawsuit Gov. Perry has filed in federal court against the Virginia State Board of Elections and the Republican Party of Virginia. In it, the governor argues that federal judges should interpret the First Amendment to the Constitution, as incorporated against the states by the Fourteenth Amendment, to reason that Virginia's rules for qualifying candidates violate his right to free speech and association.

It is entirely plausible that what Perry seeks is a logical extension of precedents developed by the Supreme Court in Washington and applied by federal courts in Colorado, California, New York, Michigan, Wisconsin, Pennsylvania, and elsewhere (I don't believe the Perry suit cites any cases from federal courts in Virginia). But it seems ironic that it is Governor Perry who is making this argument. Having spent some time with federal judges, I must say it would not surprise me if this irony were to be pointed out to the governor and his lawyers.

Muslim Brotherhood to Renounce Peace Pact With Israel . . . By Referendum

Mindful of its lopsided electoral triumph in Egypt, which has been so enthusiastically welcomed by the Obama administration and top Democratic emissary John Kerry, the Muslim Brotherhood has announced plans to submit the Camp David Accords -- the treaty that has kept the peace between Egypt and Israel for over 30 years -- to a popular vote. This way, the Brotherhood ensures that Egypt renounces the treaty (a top Brotherhood priority) but can claim that it honored its commitment to "respect the treaty" -- a commitment the Obama State Department actually touted as credible. There's nothing like spring fever.

Russia: Iran Has No Nuclear Weapons Program

How's that re-set workin' out, Mr. President?

The Russians say there's no proof and the "sanctions have gone way too far." "We must push harder on the negotiating track," says Sergei Ryabkov, Don Putin's deputy foreign minister. Maybe once Sheikh Qaradawi finishes straightening out this Taliban thing, he can carve out some time between the "destroy America" sermons and the "kill all the Jews" sermons to help Obama reshape our Iran policy.