Monthly Archives: September 2005

A War Powers Amendment?

Stirling Newberry, whose ideas I often like, has penned an odd one. I think I sort of like the idea behind it, but the execution leaves the lawyer in me very unsatisfied. Here’s his proposal for a War Powers Amendment:

Article 1

It shall require a three fifths vote of the whole of both houses to declare war, or authorize the use of war powers. Congress may revoke a declaration of war, or of any specific war power, by three fifths vote of the whole of both houses, to take effect not less than 30 days from the date of the vote.

Article 2

The authorization for the use of war powers shall expire thirty days from the beginning of a new Congress, unless reauthorized by a majority of the whole of both houses.

Article 3

Should the President use force or fraud directed at the Congress for the purpose of attaining a declaration of war or war powers, he shall be removed following a vote of a three fifths of the Senate, if impeached by the House. The President may appeal this removal to the Supreme Court.

Well.

Art. 1 runs into the problem that we have lots of non-war wars. Also “war powers” – while there is an overly-vague war powers resolution, “war powers” is not a term with a constitutional definition. Are you going to trust courts to define it? Endless wrangles, and always while bullets and worse are flying. The executive will win.

Art. 2 is to me the most interesting, but would only work with a much more robust definition of what uses of force are war powers and what are not (is UN peacekeeping ‘war powers’? Responding to a security council request for troops? Emergency rescue of US citizens in a war zone? Shipping supplies to an ally engaged in a fight? Spying?)

But whatever one thinks of 1 & 2 the third article is a big mistake. Any time you have two procedures for something you have the possibility of people getting into procedural wrangles about which applies, how they differ, etc. If we want to impeach a President, better to have him out than have wrangles and pretenders to the throne. Second, you shouldn’t give the Supreme Court a standardless power of review. According to what standard is this review – de novo? abuse of discretion? What sorts of claims lie – denial of due process? ex parte communications? And having original jurisdiction in the Supreme Court creates some (surmountable but real) difficulties if there is a need to take testimony; the absence of a process for that might lead some to think the review was deferential, like the review of an administrative agency on its own record, or even more deferential than that.

Trying to stop things like the Tonkin Gulf Resolution or the even more open-ended and disasterous Iraq resolution is certainly a good idea, maybe even a great idea. But count this as just a first draft of a long drafting process.

Posted in Law: Constitutional Law | 8 Comments

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The Strategy: How the GOP Will Relaunch the Culture War With its Next Supreme Court Appointment

There are a lot of people who think that George Bush’s political weakness will result in a more moderate appointment to replace Justice O’Conner to the Supreme Court.

They are deluding themselves. In fact, it’s worse than wishful thinking: it’s exactly backwards.

The weaker Bush gets, the more certain it is that he (or Cheney or Rove) will appoint someone certain to reverse Roe v. Wade.

Do the math. The one thing that this crew is any good at is electoral strategy. And the weaker they are, the greater the danger to the GOP ticket in congressional elections next year, not to mention the Presidential election in 2008. The Bush-Rove strategy for winning elections is simple and well-understood: it’s to fire up ‘the base’ with culture war stuff, to distract from the environment, economic and health issues, all issues that as an abstract matter the majority of the electorate actually prefers the Democratic position to the Republican one.

Currently Cheney and Rove face two problems.

First, the failure to cope with Katerina Katrina and the issues of rebuilding will dominate the public agenda for some time. It is a debate which already shows signs of derailing additional tax cuts that only a month ago were due to be enacted by a compliant congress that treats fiscal discipline the way we used to treat levees. Only something major can displace Katerina Katrina from public consciousness — and even Iraq isn’t big enough.

Second, Cheney and Rove are deprived of their accustomed freedom to maneuver legislatively, as Congress becomes less and less willing to enact the “Bush agenda”.

These problems have, however, an obvious solution.

The only effective way to retake control of the public debate and distract from Katerina Katrina is to reignite the culture war, a move which would give the GOP a reasonable shot at controlling the debate for the next election. And the best way to do that is to appoint an anti-abortion Justice such as Patricia Priscilla Owen shortly after Roberts is confirmed. Far better to have the next election be about abortion than competence, Iraq, or indeed anything to do with the way the nation has recently been governed.

From a Rovian perspective it’s a win up and down the fight card. First Senatorial democrats can be demonized for filibustering. Then they can be shown to be wimps when muscular Cheney invokes the nuclear option and silences them. [If the filibuster should somehow survive, that’s just as good — it keeps alive the intransigence meme and explains to the base why it is so important to have more GOP Senators.] Any challenge will go before a Supreme Court with a chief justice who thinks little of congressional power and much of the executive’s and who will have, in familiar conservative doctrine, many avenues such as the political question doctrine available to leave the new status quo alone. Finally, the ensuing election can be framed as the war of law against obstreperous extremists seeking legislative and executive power to overturn the historic decision that returned the US to the blessed path of righteousness. (Quiet subtext: Katerina Katrina was divine chastening to ensure the right sort of appointment. Now that it has been made, we can relax.) The abortion issue will fire up the base like nothing else could any more, and even those doubtful about Katerina Katrina will come home when told they have a moral duty to do so. Some Democratic fringe group will undoubtedly cooperate by making an inept campaign commercial and a clip from it will become the Dean Scream of 2008.

While not guaranteeing a favorable result, this strategy plus a financial advantage at least creates a possibility of locking in GOP gains against what otherwise would be a renewed and nationally vigorous Democratic challenge.

Now if only I could figure out what we do about it…

Posted in Politics: US | 32 Comments

LA Power Outage Dims Discourse

The LA blackout seems to have taken the site down with it. Supposedly Dreamhost has an emergency backup system, but it seems to have failed completely. Probably FEMA-approved hardware…

Update: Details if you care…

Posted in Discourse.net | 1 Comment

Factchecking Bush

Wow. That didn’t take long. Bush gives a press conference this morning and says,

Question: Did they misinform you when you said that no one anticipated the breach of the levees?

President Bush: No, what I was referring to is this. When that storm came by, a lot of people said we dodged a bullet. When that storm came through at first, people said, whew. There was a sense of relaxation, and that’s what I was referring to. And I, myself, thought we had dodged a bullet. You know why? Because I was listening to people, probably over the airways, say, the bullet has been dodged. And that was what I was referring to. Of course, there were plans in case the levee had been breached. There was a sense of relaxation in the moment, a critical moment. And thank you for giving me a chance to clarify that.

In no time at all, the blogs expose this as a inconsistent with the facts we know. Or, if you prefer, a real whopper.

Posted in Unspeakably Awful (Katrina) | 10 Comments

It’s Getting Harder and Harder To Tell Truth from Fiction

Here’s a little test of your acumen. Can you tell (without clicking the links) if

A) Both I & II are true

B) Both I & II are parodies

C) I is true but II is a parody

D) I is a parody but II is true

Remember, no clicking links until you’ve picked one of the above.

I. Everyone is a Meteorologist Now

Dateline: Hollywood – ROBERTSON BLAMES HURRICANE ON CHOICE OF ELLEN DEGENERES TO HOST EMMYS: Hollywood — Pat Robertson on Sunday said that Hurricane Katrina was God’s way of expressing its anger at the Academy of Television Arts and Sciences for its selection of Ellen Degeneres to host this year’s Emmy Awards.

… Robertson added that other tragedies of the past several years can be linked to Degeneres’ growing national prominence. September, 2003, for example, is both the month that her talk show debuted and when insurgents first gained a foothold in Iraq following the successful March invasion. “Now we know why things took a turn for the worse,” he explained.

II. They’re Under the Bed Too!

There’s controvery over a planned memorial to Flight 93 — the flight hijacked 9/11 in which passengers fought back and which crashed in Pennsylvania.

A committee was formed of surviving 9/11 family members, people from the community and designers/architects. They solicited proposals for a fitting memorial to be built on the crash site and received an amazing 1100+ entries!

After several elimination rounds a winner was chosen… The stunning “Crescent of Embrace” design by Paul and Milena Murdoch, architects, of California … will feature a “Tower of Voices, containing 40 wind chimes — one for each passenger and crew member who died — and two stands of red maple trees that will line a walkway caressing the natural bowl shape of the land. Forty separate groves of red and sugar maples will be planted behind the crescent, and a black slate wall will mark the edge of the crash site, where the remains of those who died now rest,” according to the Pittsburgh Post-Gazette.

Not everyone is pleased, however: Michelle Malkin blogs to warn about the proposed design, because it’s a crescent. And bin You Know Who loves crescents.

“Is this a coincidence, an example of amazing cluelessness, or something more deliberate?” Malkin asks, approvingly quoting a blogger from Little Green Footballs. Also quoted approvingly from another source: “What next–a holocaust memorial in the shape of a swastika?”

Hints as to the answers below.

Continue reading

Posted in Politics: US | Comments Off on It’s Getting Harder and Harder To Tell Truth from Fiction