Rahm Emanuel's attempt to defund Cheney defeated

Sadly, Rahm Emanuel's attempt to defund Dick Cheney's executive expenses (based on the logic that, hey, if he's not enough a part of the executive branch to be governed by executive branch regulations, he's not enough a part of it to receive funding, either) has gone down to defeat. From Reuters:

By a vote of 217-209, the House defeated legislation designed to rebuke Cheney for refusing, over objections by the National Archives, to comply with an executive order that set government-wide procedures for safeguarding classified national security information.

Debate on the measure also gave Democrats another chance to mock Cheney's recent contention that he was exempt from the rule on executive-branch documents because he also serves as president of the Senate, part of legislative branch. He has since stepped back from that argument.

"The vice president must know that no matter what branch of government he may consider himself a part of on any given day or week, he is not above the law," said Rep. Rahm Emanuel, the Illinois Democrat who wrote the amendment to a bill funding White House salaries and expenses next year.

Further needling Cheney, the amendment would have provided money for him to operate his office in the Senate while denying the nearly $5 million for running the vice president's office and home in Washington.

Heh. Anyway, although the voting was mostly along partisan lines, 24 Democrats voted against it. These Democratic Representatives must have felt that cutting the VP's funding was just something that Very Serious congresspeople shouldn't do, no matter how many times Dick Cheney makes a mockery of the concept of government oversight. Only two Republicans voted for the amendment. One of them, of course, was Ron Paul.

Some Musings on Affirmative Action

As I'm sure you've heard, the Supreme Court announced its decision in Parents Involved in Community Schools v. Seattle School District striking down the district's affirmative action plan. The plan sought to achieve a roughly 60-40 balance of "non-white" students to white students, to match the surrounding Seattle demographics. In other words, they wanted to avoid any of the schools in the district from becoming "the black school" or "the white school." Fair enough. I've already commented on my thoughts regarding affirmative action more broadly, and as I implied in that post, I agree with the Court's decision. I think this kind of blatant use of racial demographics is unconstitutional. A student should not be placed in a school solely because of his or her race. Indeed, Brown v. Board of Education stated rather clearly that the Equal Protection clause "prevents states from according differential treatment to American children on the basis of their color or race." At least this is the reasoning the Court uses. I'm not sure how reasonable it is to apply Brown while striking down an affirmative action plan.

After all, Brown was meant to end segregation. Affirmative action plans were one way (perhaps the only way) to achieve the goals of Brown. So, to suggest that an integration plan that would prevent de facto segregation is contrary to Brown seems rather foolish. I do not think the Justices who decided Brown would have thought that the sort of racial distribution going on in this plan is unconstitutional. But I do.

Sort of.

The interesting part of this case is Justice Kennedy's concurring opinion. He agreed with the Court that this specific plan was unconstitutional, but he was not willing to go as far as the others who seemed to suggest that race could never be used in these sorts of plans. Kennedy suggests that race can be a contributing factor in how school districts derive these plans. This is, of course, terribly vague, and the Court has used this terribly vague reasoning before. In the Michigan University cases a few years ago, Justice O'Connor argued that race can be a contributing factor for admissions offices to consider among other relevant factors. However, strict quotas are unconstitutional.

And strict "balancing acts" are unconstitutional. So, what then can school districts do to avoid de facto segregation? First of all, these plans must be "narrowly tailored" to achieve their stated ends. In this case, the Court argues, the distinction between "white" and "non-white" is not even conducive to the goals of the school district. The district requires that the racial balance fall within 10% of the 60-40 divide. So, the Court points out that a school with 50% white students and 50% Asian-American students would be "balanced" while a school with 20% white students, 30% Asian-American students, 25% African-American students, and 25% Latino students would be "unbalanced," even though the latter would be far more diverse. Thus, the "white"-"non-white" distinction cannot be shown to be an effective means of achieving the district's goals. Of course, the question then is how can districts narrowly tailor their plans? Justice Kennedy provides some assistance:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools;drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources forspecial programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

So, this sort of understanding allows for race to be a factor, but not the deciding factor. And in addition, it does not aribitrarily split children into racial groups. As Justice Kennedy points out, the Court's majority opinion seems to understand the Equal Protection clause and Brown as not allowing districts to attempt to do away with de facto segregation. In my previous post, I suggested that I agreed with this argument, but after some deep thought (indeed, it took me two days to figure out how I wanted to construct this post), it seems unbelievably foolish. To suggest that if inequality occurs naturally we can't adress it seems contrary to the goals of the Equal Protection clause and blatantly contrary to the goals of Brown. "Separate but equal" is not equal, even if that separation is "natural."

So, where do I stand? Ultimately, I agree with the Court that this plan is unconstitutional, but I recognize that it is necessary at times for race to be a factor. And there are ways of adressing the issue of de facto racial separation without explicitly splitting up the races. So, I find myself wading in the murky waters of Kennedy and O'Connor's intellectual waffling. But, you know what? Sometimes waffling is the only way to avoid unreasonable extremes. So, I'm okay with it.

David Broder sees the light on Cheney. Joshua Marshall unimpressed

The Washington Post's David Broder sees the light on Cheney:

Years ago Lamar Alexander, the senator from Tennessee, told me of a lesson he had learned as a young man on the White House staff: It is always useful for the president to have at least one aide who has had a successful career already, who does not need the job, and who therefore can offer candid advice. When he was governor of Tennessee, Alexander made sure he had such a person on his staff.

Later, when presidential candidate George W. Bush chose Dick Cheney as his running mate, I applauded the choice, thinking that Cheney would fill the role Alexander had outlined. Boy, was I wrong.

The role model for Alexander was Bryce Harlow, the diminutive, modest and universally trusted White House player in the Eisenhower and Nixon years. Cheney, as described in a breathtakingly detailed series in The Post this week by reporters Barton Gellman and Jo Becker, is something else.

What they discovered, in a year of work that reveals more about the inner workings of this
White House than any previous reporting, is a vice president who used the broad authority given him by a complaisant chief executive to bend the decision-making process to his own ends and purposes, often overriding Cabinet officers and other executive branch officials along the way.

But Joshua Marshall is less than impressed:

Yesterday David Broder wrote a column which one TPM Reader, more or less fairly, described as Broder's expression of shock, shock at just what Dick Cheney has been up to over the last six-plus years. And this is a good opportunity to say that the Post's 'Angler' series seems to be becoming the trigger for that transition moment where consensus establishment opinion goes from seeing the vice president as the powerful administration heavy with a sometimes creepy but largely comic penchant for secrecy to an altogether more nefarious force who has used his unprecedented power as vice president to advance an agenda of official secrecy, non-accountability, untrammeled executive power, legitmized torture and general degradation of the rule of law.

But this is far too easy. Because the simple fact is that we've known almost all of this for years.

Don't get me wrong. I'm not knocking the series, which is quite good. In journalism, details, the specifics are all. But the story in general has been out there for years, as well as a good number of the specifics, strewn over hundreds, probably thousands of newspaper and magazine articles, online and off.

In other words, when it comes to recognizing Cheney's profoundly damaging effect on American constitutionalism as well as his guiding role in essentially all of the administration's most disastrous policies, the train already left the station some time ago.

Sorry.

He's right. Yes, the Post's series is excellent, and it's good that the opinion of the Washington establishment has finally turned against Cheney. But it's too bad it took so long for them to realize something that was quite obvious as far back as the last presidential election.

Cheney's office backpedals from claim that Vice President isn't a part of the executive branch

From the Washington Post:

Vice President Cheney's office offered its first public written explanation yesterday for its refusal to comply with an executive order regulating the handling of classified material, arguing that the order makes clear that the vice president is not subject to the oversight system it creates for federal agencies.

In a letter to Sen. John F. Kerry (D-Mass.), Cheney Chief of Staff David S. Addington wrote that the order treats the vice president the same as the president and distinguishes them both from "agencies" subject to the oversight provisions of the executive order.

Addington did not cite specific language in the executive order supporting this view, and a Cheney spokeswoman could not point to such language last night. But spokeswoman Lee Anne McBride said the intent of the order, as expressed by White House officials in recent days, was "not for the VP to be separated from the president on this reporting requirement."

Dick Cheney's office is furiously backpedaling away from the whole "Vice President isn't enough a part of the executive branch to have to comply with executive branch regulations" argument:

Addington did not repeat a separate argument that has been previously advanced by Cheney's office: that it is not strictly an executive branch agency but also shares legislative functions because the vice president presides over the Senate. That argument has drawn ridicule in recent days from Democrats and on late-night television.

Addington suggested in his letter that it was not necessary to rehash that dispute. "Given that the executive order treats the Vice President like the President rather than like an 'agency,' " he wrote, "it is not necessary in these circumstances to address the subject of any alternative reasoning, based on the law and the legislative functions of the vice presidency. . . ."

I'm not going to get into the latest implausible excuse offered by Cheney's office. Instead, I'd like to draw your attention to this sentence:

That argument has drawn ridicule in recent days from Democrats and on late-night television.

Those are weasel words. The whole "Republicans says this, and Democrats say that" formulation is a lazy substitute for truly balanced coverage. What about the merits of the argument? Cheney's claim is presented as just another debatable issue. The fact that it has been roundly rejected by just about everyone as patently absurd is not mentioned. It's not just Democrats and the Daily Show saying that. Take Jonah Goldberg, about as true-blue a conservative as you can get, and his editorial in the LA Times:

The vice president is famously concerned with two things: restoring the prerogatives of the executive branch, lost in the wake of the Vietnam War and Watergate, and defeating our enemies in the war on terror. Both are admirable goals. But seemingly countless sources inside the Bush administration tell the Post that he has a contempt for bureaucratic and legislative consensus-building that rivals his contempt for cultivating public support through the media. As a result, he often succeeds in bulldozing policies — on enemy interrogations, etc. — all the way to the president's desk. But he's isolated when it comes time to defend these policies in Congress and the public.

Take the current argument over Cheney's self-exemption from the rules on how classified documents should be handled. Instead of getting a waiver from the president, Cheney argued that he's immune to executive orders because he's also the president of the Senate and hence a member of the legislative branch too. Not only is this a goofy argument on its face, it does nothing to restore executive authority. It's not like the vice presidency was an outpost of the legislative branch before Watergate. Cheney's argument amounts to a convenient rationalization for his own secretive style.

Read the whole thing. It's not just "Democrats and late-night television" criticizing Cheney.

UPDATE: I don't mean to pick on the Washington Post here; our whole media establishment falls into this trap with depressing regularity. The WP's recent Dick Cheney series (here, here, here, and here) is a textbook example of what good journalism should be.

On National Association of Home Builders v. Defenders of Wildlife

This case is awfully confusing, so I'll do my best to explain it, although I can't truthfully say that I understand it all. So here goes!

This case, National Association of Home Builders v. Defenders of Wildlife, tries to determine what should be done when two statutes seem to conflict. Should one win out? Should they be interpretted in such a way as to allow enforcement of both statutes? Logic tells me that the latter should be the case, but the Court held otherwise.

Perhaps I should simply quote Justice Alito here:

These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to “insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species.” The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. We conclude that it does not. The transfer of permitting authority to state authorities—who will exercise that authority undercontinuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes—was proper.

So, basically, the original statute (the CWA) laid out nine criteria for the EPA to transfer authority to a state. A later statute (the ESA) stated that all federal agencies (e.g. the EPA) must consult with pre-determined agencies to determine whether or not their actions will harm any endangered species or its habitat. This determination is not one of the nine criteria of the CWA. So, does the existence of the ESA create a tenth criterion that the EPA must meet before it can transfer authority?

Apparently not.

This confuses me, because the rather clear purpose of the ESA is to make sure that agency actions do not harm endangered species, and it seems that the CWA and the ESA can pretty easily co-exist, by creating this tenth criterion. But the Court reads the CWA's nine criteria as a strict limit, suggesting that those nine cannot later be amended by congressional statutes.

This is simply absurd. If Congress says "Here is a set of criteria," it should later be able to add on to that list. I suppose the argument is that the addition of the tenth criterion fundamentally changes the nature of the CWA, which explicitly listed nine criteria. Thus, adding a tenth would require the Court to significantly alter the CWA, which it does not want to do. But, the dissent has the better case here, I think. When two seemingly conflicting statutes can be read so as to co-exist, they should be read that way. So, since the addition of the tenth criteria does not radically change the CWA (after all, the nine criteria still need to be met before authority can be transferred), we should add it. That way, both the CWA and the ESA can be enforced.

Administrative law can be very boring, so I hope this made some sense and didn't bore you readers to death. Essentially, the idea is this: if Congress passes a law that seems to conflict with (but does not actually abandon) a previous law, the laws should be read in such a way as would allow both to be enforced (if possible, of course). Clearly here the intent of Congress was for both the CWA and the ESA to be enforceable. So, I think the dissent is clearly right to suggest that both should be enforced.

Plus, doing so might save some endangered species in the process, so let's do that.

Dr. Pork Barrel or: How I Learned to Stop Worrying and Love the Government Waste

Greetings, I'll be brief with my introduction: I am GJ, friend of DC, Sarge, and FZ. Hence, I've been given the chance to state my opinions on this tremendous political blog. However, because my knowledge of politics is about as extensive as, say, FZ's knowledge of 1980's baseball stars, I've been told to focus my articles on one specific topic I do have some passion for (which is pork barrel spending). There's nothing I enjoy more than reading over the specific parts of important bills through the Senate (for example, let's take that little bill the Dems tried to pass to get a time table on the war in Iraq) to find money allocated to be spent on the strangest projects (I'm looking at *you* Harry Reid and the four million dollars you wanted to be spent on fighting American's biggest insect threat: Mormon crickets).

Today, I'll be looking at one man's strategy to take a clear stance on pork barrel spending in an attempt to "do things the right way". I figured I'd try to write a positive article before tearing into the really insane Government waste in the weeks to come. Anyway, according to this little article, Barack Obama has decided to make public a list of specific projects he has pursued funding for in federal spending bills. Of course, there were personal motives for Obama to release the information:

In the past week, his relationship with indicted real estate developer Tony Rezco has come under increased media scrutiny, both nationally and in Chicago. Disclosing his earmark requests could allow Obama to argue that he's still above the fray of Washington and keep his reputation intact.

Fair enough. It's risky for him to put his fingers in the real estate pie. It's certainly a political pie I would not want a slice of at dinner. Now to give Obama credit, he tends to support spending on not-so-insane projects:

Road and water projects dominate the list, along with requested assistance for colleges and universities and non-profit groups that provide social services. All safe choices — which one would expect from someone seeking national office. Obama's most expensive request was $40 million for Metra, metropolitan Chicago’s commuter rail system.

See, this isn't too bad, Obama would never, ever request spending on something clearly wastef-

Perhaps the most unconventional request is also the first item on the list: $3 million for the Adler Planetarium to replace projector equipment.

Oh. Wow. Well, I really can't defend this. Maybe the planetarium has a lot of projectors for some reason. Or one that projects on a 5,000 inch screen.

Maybe there isn't a candidate out there that is completely against all irrational forms of earmark spending (Ron Paul might be an exception, but it won't matter when seven people vote for him in the primary). Sadly, pork barrel spending is one of the parts of government we all must live with. Also, it gives me an opportunity to write, so here's hoping fine people like Barack, who I agree with on many issues, will continue to want to spend millions of dollars of tax payer money on projector equipment for a Planetarium.

Concering Hein v. Freedom From Religion Foundation

As you have probably heard, President Bush, through a series of executive orders, has set up the Office of Faith-Based and Community Initiatives, making it much easier for religious organizations to apply for federal funding. Many proponents of a "high wall of separation" between religion and government, such as myself (and Thomas Jefferson, if he were still alive), were concerned regarding the constitutionality of the existence of such a program. Can federal dollars be spent to support religious organizations? I don't think so. But what can I do about it? Can I sue the executive branch? That very narrow question is what the Court ruled on yesterday in Hein v. Freedom From Religion Foundation.

And apparently the answer is no, I cannot.

A bit of legalese: this case is all about "standing," or whether or not someone bringing a lawsuit actually has the right to be bringing that lawsuit. Usually this requires the person bringing the suit to show some sort of specific injury. So, one of the basic questions in this case is "Are taxpayers sufficiently injured when the executive branch spends money for religious purposes to bring a claim in court?" So, just to clarify (and perhaps make this post much more boring), this case did not rule on the constitutionality of these so-called "faith-based initiatives."

On with the analysis.

First, I should explain the voting. It was 5-4, with the conservative gang in the majority and the liberals in the minority. However, the controlling opinion (written by Samuel Alito) was only joined by the Chief Justice and Anthony Kennedy; Antonin Scalia and Clarence Thomas agreed with the judgment, but wrote a concurring opinion, thus making Alito's opinion a "plurality opinion" rather than a "majority opinion." This has the effect of weakening the opinion as precedent.

So, the plurality opinion first ruled that a taxpayer is not injured by executive spending from funds generally appropriated by Congress for executive expenditures.

Generally, a taxpayer's interest in seeing that Treasury funds are spent in accordance with the Constitution is too attentuated to give rise to the kind of redressable "personal injury" required for Article III standing.

This does make sense for practical purposes; allowing any and all complaints regarding federal spending would flood the federal courts with cases in which people simply do not like the way Congress or the executive is spending money. However, we have to delve a bit deeper.

The Court has ruled that there is at least one relevant exception to such a rule. In Flast v. Cohen, the Court declared that a taxpayer would have standing to challenge the constitutionality of "exercises of congressional power under the taxing and spending clause." In other words, if Congress had passed a law creating a tax to fund or explicitly providing funds for religious purposes, a taxpayer would have standing. Apparently Congress' role in all of this is the important part.

The link between congressional action and constitutional violation
that supported taxpayer standing in Flast is missing here.

So, I can sue if Congress says "Mr. President, spend this money on religious purposes," but apparently I cannot sue if Congress says "Mr. President, spend this money as you wish," and he subsequently spends that money on religious purposes.

This is simply absurd. If Congress violates the Constitution, we can call them on it, but if the President violates the Constitution, we can't? Please, someone show me some sanity! Oh, hey, it's Justice Souter:

I see no basis for this distinction in either logic or precedent, and respectfully dissent. We held in Flast, and repeated just last Term, that the "‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion."

Thank you, Justice Souter. The point here is that Flast should be read to allow all cases challenging the explicit "extraction and spending of tax money in aid of religion." The narrow reading of Justice Alito creates a rather nonsensical distinction between congressional appropriation and executive spending.

Back to the injury matter for a moment: Souter makes clear that the expenditure of taxpayer money to fund religious causes does create injuries. Quoting James Madison, he points out:

The government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment" of religion.

Why? Because the founders considered religion to be a matter of conscience, and the right to not have one's paid taxes spent on religious purposes (which would really amount to forcing one to pay for religious purposes) is fully encompassed by the right to conscience. Thus, any expenditure of taxpayer money on religious purposes is a violation of the right to conscience, a rather large "injury," if you ask me.

So, we secularists have no recourse to rampant executive expenditures on religious causes. Perhaps we could write to our Congresspeople, asking them to make explicit that no congressionally allocated funds (whether explicitly or generally allocated) shall be spent on religious causes, but this seems very unlikely. After all, I highly doubt that Congress would ever take on religion so directly.

Of course, we can always elect someone who understands the First Amendment in 2008. I suppose that's some sort of recourse.

The best response to Cheney's "I'm not part of the executive branch!" claim

... goes to Rep. Rahm Emanuel:

If Vice President Cheney believes his office is not an "entity within the executive branch," then a House Democratic leader says taxpayers shouldn't have to finance his executive expenses.

Cheney's office has claimed his constitutional role as president of the Senate also makes him part of the legislative branch and therefore is not covered by a presidential order requiring executive branch workers to report their numbers of classified and declassified government documents.

Rep. Rahm Emanuel of Illinois, chairman of the House Democratic Caucus, said Sunday that a court should decide whether the vice president belongs to the executive or legislative branch. "The vice president needs to make a decision," he said.

But wait! Couldn't we just ask Attorney General Alberto Gonzales to rule on this issue? After all, he's the country's top lawyer! Oh wait, he already was. BrandonIsADork is all over it:

Attorney General Alberto Gonzales was asked in January to resolve the legal dispute, but he has not yet ruled on the issue.

Mr. Gonzales didn't rule on this issue? Jeez...I can't imagine him doing anything suspicious, illegal, or deteriorating to the integrity of the Judicial branch. This whole administration makes me want to bash my head off a stack of Constitution posters until it bleeds.

Wait, is Brandon impugning the ironclad integrity of our esteemed Attorney General? This is the man described by the Washington Post as

a longtime Bush confidant whom the president nicknamed "Fredo."

If that doesn't give you confidence in Gonzales, I don't know what would. Check out this Youtube video, which plays on Gonzales's classy nighttime visit to his friend John Ashcroft:

Dick Cheney claims Vice Presidency isn't part of the executive branch

What can you say to Cheney's recent assertion that he is not part of the executive branch?

Dick Cheney, who has wielded extraordinary executive power as he transformed the image of the vice presidency, is asserting that his office is not actually part of the executive branch.

In a simmering dispute with the National Archives that heated up yesterday, Cheney has long maintained that he does not have to comply with an executive order on safeguarding classified information because his office is part of the Legislature.

You can be shocked like Digby:

I had always known that Cheney was running the show, but I assumed he did it purely by using the power of the executive branch and manipulation of the presdient. I had no idea that he might have secretly carved out a previously unenumerated institution that derives its power from both the legislative and executive branches. What in the hell has really been going on in this administration?

You can attempt to rationalize it, like Glenn Reynolds:

The argument that the Vice President is a legislative official isn't inherently absurd. The Constitution gives the Vice President no executive powers: The VP's only duties are to preside over the Senate, and to become President if the serving President dies or leaves office. The Vice President really isn't an Executive official, and isn't part of the President's administration the way that other officials are -- for one thing, the VP can't be fired by the President: As an independently elected officeholder, he can be removed only by Congress, via impeachment. (In various separation of powers cases, the Supreme Court has placed a lot of weight on this who-can-fire-you test).

(Although even he is forced to admit that this is a bad argument.)

But here's the thing: Whatever executive power a VP exercises is exercised because it's delegated by the President, not because the VP has it already. So to the extent the President delegates actual power (as opposed to just taking recommendations for action) the VP is exercising executive authority delegated by the President, but unlike everyone else who does so he/she isn't subject to removal from office by the President (though the President could always withdraw the delegation, of course). However -- and here's where the claim that Cheney is really a legislative official creates problems for the White House -- it seems pretty clear that the President isn't allowed to delegate executive power to a legislative official, as that would be a separation of powers violation. So to the extent that this is what's going on, the "Cheney is a legislative official" argument is one that opens a big can of worms.

Or you can look at the Constitution (Article II, to be exact) which seems to make it pretty clear which branch of government the VP is a part of:

Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected...

UPDATE: The Daily Show treats Cheney's claim with all the respect it deserves:

What a Day at the Court: On Morse v. Frederick

The Supreme Court announced some rather important decisions today, three of which I vehemently disagree with. I will post at length about all three within the coming days, but first, I will deal with Morse v. Frederick, AKA the "BONG HiTS 4 JESUS" case.

A bit of background: During a school-sponsored event in which the Olypmic torch would pass by the high school, Morse and his cohorts unveiled a large banner that read "BONG HiTS 4 JESUS." Principal Frederick ordered the students to get rid of the banner; Morse refused; Frederick confiscated the banner and suspended Morse.

To the ruling: The ruling was 6-3, although given that Justice Stephen Breyer joined the majority's ruling, but completely and utterly disagreed with their (rather unfounded) logic, it is more rational to call it 5-4, or perhaps 5-3-1 (one with no opinion, that is). I'll explain more about that later on. First, though, the majority ruled that Frederick acted constitutionally and that she did not take away Morse's First Amendment right to free speech.

It has been well established that one's rights in school are not equal to one's right out of school. Given the unique school setting, administrators need to have the power to restrict certain kinds of speech, particularly speech that either works to impede the school from properly doing its job or causes a disruption. Using this logic (which I think, on its own, is completely legitimate), the five conservative Justices (Chief Justice John Roberts and Justices Scalia, Kennedy, Thomas, and Alito) make the strained argument that the banner worked against the school's goal of promoting an anti-drug message by promoting "bong hits." Given that the only "reasonable" interpretation of the banner is to either promote or celebrate marijuana use, the principal acted reasonably, given her duty to "safeguard those entrusted to [her] care from speech that can reasonably be regarded as encouraging illegal drug use."

Yes, what would these little high schoolers do if wonderful Principal Morse hadn't confiscated that banner? They'd all probably go out and become stoners and hookers and bums and terrorists.

This may have been a disruption in the sense that students (and news reporters covering the event, who Morse was actually trying to incite) said "Hey, what's that!?" but it was not a large enough disruption from the school's message to legitimize suspension. Justice Souter noted during oral argument:

It's political speech, it seems to me. I don't see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school.

Indeed, it was a political statement, perhaps of the lowest kind, but political nonetheless. It wasn't saying "Hey students, smoke marijuana!" It was saying "Look at me! I have the freedom of speech!" The kid was, to put it bluntly, an attention whore. Obnoxious? Yeah, probably, but I think it is a stretch to suggest that he was actually promoting drug use. He was promoting himself; he wanted to be on TV, for Christ's sake!

And as Justice Stevens so eloquently notes in his dissent, this suspension actually worked against the school's broader goal of creating bright, intellectually astute students.

Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views.

Indeed, "Shut up!" "Why?" "Because I said so!" is no way to create good students.

Back to Breyer for a bit of explanation. Breyer agreed with the ruling on a more technical grounds: Morse shouldn't be able to collect damages from Frederick. He argued, however, that the Court should have decided the case on that limited basis and not even touched the First Amendment issue. He points out that this ruling manages to muddy up the waters of school speech even more than they were before. Indeed, it raises a set of new questions. If schools can ban speech that promotes illegal drug use, can a group of students discussing medicinal marijuana be punished? What about if they're having a debate about the legalization of marijuana? Can the "pro" side be reasonably accused of promoting illegal drug use? These are all questions Breyer asks, so it seems pretty clear that he doesn't buy into the majority's logic, and thus including him in the majority count seems odd.

Boy oh boy, what is our world coming to when stupid high schoolers have to think twice before being stupid high schoolers? Actually, that sounds kind of nice, but that isn't the point. The First Amendment isn't supposed to make us more comfortable; it's supposed to allow controversial speech. Indeed, it exists so that the argument "this speech makes us uncomfortable" cannot be used. Of course, this sort of nonsensical "speech" may not have been what the framers had in mind when the First Amendment was drafted, but it seems clear to me that they would approve of the spirit behind that speech.

Tomorrow: My take on Hein v. Freedom from Religion Foundation.

Wednesday: My take on National Association of Homebuilders v. Defenders of Wildlife.

Ralph Nader wants to run again. (Apparently he's not happy with handing the presidency to just one Republican)

Ralph Nader is at it again:

Ralph Nader says he is seriously considering running for president in 2008 because he foresees another Tweedledum-Tweedledee election that offers little real choice to voters.
"You know the two parties are still converging -- they don't even debate the military budget anymore," Nader said in a 30-minute interview. "I really think there needs to be more competition from outside the two parties."

Little real choice for voters? Who is he kidding? The Democratic and Republican candidates offer wildly divergent positions on the Iraq War, foreign policy, immigration, health care, taxes, trade, and the environment. Want to get out of Iraq? Vote Democratic. Want an indefinite occupation? Vote Republican. Want a mulitlateral foreign policy? Vote Democratic. Want a unilateral foreign policy? Vote Republican. Want more immigration? Vote Democratic. Want less? Vote Republican. Want universal healthcare? Vote Democratic. Want to keep healthcare the way it is? Vote Republican. Want to get rid of the Bush tax cuts? Vote Democratic. Want to keep them? Vote Republican. Want more environmental protection? Vote Democratic. Want less? Vote Republican. Want to protect civil liberties? Vote Democratic. Think civil liberties just get in Jack Bauer's way? Vote Republican. Want separation of church and state? Vote Democratic. Don't want separation of church and state? Vote Republican. Want stem-cell research? Vote Democratic. Don't want it? Vote Republican. Want more liberal judges on the Supreme Court? Vote Democratic. Want more conservative judges? Vote Republican. Etc etc etc.

I'm getting a little tired of Nader's willful ignorance of the way our political system works:

And while Nader, 73, realizes he might once again be accused of being a "spoiler" candidate, he says the Democrats could win in 2008, unless they spoil things for themselves.

"Democrats have become, over the years, very good at electing very bad Republicans," Nader said.

Bold words from the man who cost Al Gore Florida and handed George Bush the presidency.

They Call This "Beating a Dead Horse" (More on Bloomberg)

Okay, I have a new theory brought about by yet another New York Times article.

Mr. Bloomberg was described as conflicted about a national run, intrigued by the possibility of winning the presidency but telling friends that he would not run unless he was certain that he could win. And he did not want to go down in history as a spoiler who contributed to the defeat of a Democrat like Senator Hillary Rodham Clinton of New York, he has told friends.

The first part here is the classic "in it to win it" line, but the second half is more interesting. Perhaps he would run if his research (or others' research - even before he announced his change in affiliation, there were already general election polls that included him) showed that he would draw more votes away from the Republican, allowing a Democrat to win. We must not forget that he was a Democrat for many years, and he only switched parties for his mayoral campaign. He is a moderate liberal at heart, and he does not want to see four or eight more years of stagnation on issues like stem cell research and gay rights.

So, what I can gather is that he doesn't want to be the Ralph Nader of 2008 (I'm referring to the fact, of course, that Mr. Nader drew enough votes away from Gore to cost him the election of 2000). But, would he be willing to be the Ross Perot of 2008 (who drew enough votes away from George H. W. Bush to cost him the election of 1992)? I think the odds of that are far more likely. However, it might be a bad idea for his future plans, given that Republicans will absolutely hate him (as many Democrats - myself included - are still angry at Ralph Nader) if he hands the election to Hillary. After all, when you want to base your career on creating bipartisan solutions and you offend half of the public, you're really shooting yourself in the foot.

Shrum on Bloomberg

Now, Bob Shrum wouldn't be my first choice for advice on how to actually win a Presidential campaign. (Career record: 0-8). But he's certainly been around enough potential candidates to know how they think, and how they decide whether or not to run. He has an article up on HuffPost about Michael Bloomberg's departure from the GOP and recent flirtations with running for president:

Michael Bloomberg's decision to leave the Republican Party, to which he never properly belonged and only used as a political rest stop, was a masterstroke of timing. The decision not only engaged the chattering class and commanded the cable outlets, but made the network news. If Bloomberg is serious about running, the toe he just stuck in the water set off a considerable wave. He won't really decide whether to run until Tsunami Tuesday, when we'll probably have both a Democratic and Republican nominee; but moving this early creates a media and political environment in which he can test a potential candidacy. You can bet that within a week or two we will see general election polls with 3-way match-ups to gauge the Bloomberg effect. And he won't even have to pay for them.

Hanging back has certainly succeeded for Fred Thompson in the scramble for the Republican nomination, and it looks like it could work out well for Bloomberg, too. Will he decide to run? As Fz has pointed out, he's given mixed signals on the matter. Shrum believes that Bloomberg doesn't want to run just for vanity's sake (apparently, he's no Ralph Nader), but only if he thinks he has a shot:

My guess is that Bloomberg will do a tough analysis of whether he could carry enough targeted states where he could win with 37, 38, 39 percent of the vote -- even states like Ohio and West Virginia, where he could never prevail in a two-way race because of his position on gun control.

The question for him may not be whether the odds are in his favor -- they're not -- but whether he has some reasonable prospect of reaching the White House. That depends too on how satisfied or dissatisfied voters are with the major party choices. 2008 will be a year of change, and if both the Democrat and Republican look like establishment choices, Bloomberg could be the clear tribune of change.

The question is, will Bloomberg be a spoiler or a contender? It's difficult to tell before he jumps in just how much of a chance he'll have. What are the risks? Shrum asks:

If Bloomberg runs and doesn't win, who does he hurt? He certainly doesn't want to help Giuliani mount the inagural platform on January 20, 2009. He probably doesn't have to worry about that, since the Republicans aren't likely to nominate a pro-choice candidate the same year the Democrats offer a presidential nominee who opposes abortion rights. But as he and his advisors crunch the numbers, he may learn that he's likely to drain votes from almost any Democrat, without gaining enough of them to win himself. Does the pro-choice, socially liberal Bloomberg really want to be responsible for electing another Supreme Court-packing, gay-bashing, gun-loving, domestic-program-slashing President?

Now, not everyone agrees that a Bloomberg candidacy would hurt the Democrats. Chuck Todd and friends over at First Read have a different opinion:

Looking at voting patterns and the strength of both parties' bases, a true three-way race may help the Democrats more than the Republicans. Why? It’s simple -- the South. The irony of a Bloomberg candidacy is that it could make the Democrats more competitive in the South because their 35% base vote in the South is made up of die-hard Democrats.

Meanwhile, Jonah Goldberg at NRO leans towards Shrum's way of thinking (that a Bloomberg candidacy would help the Republicans), but admits:

I have no idea what a Bloomberg candidacy would do to the race come the Spring. But I'm pretty sure no one else does either.

Ah, premature speculation. I love it. Because without it, we political bloggers would have nothing to do all summer!

Maybe I'm Wrong About Bloomberg

As always, I refer you to the Times. Michael Bloomberg had this to say regarding the circumstances under which he would consider running for president:

If everyone in the world was dead and I was the only one alive? Sure.

I'm questioning myself and my assertion that Bloomberg will run in 2008. This is a very powerful thing to say, and something that will be difficult to explain a few months down the road. Other candidates have said things like "I am not thinking about a presidential campaign at this time," but this seems pretty frank, and reporters (and bloggers) would have a field day if a few months down the road (with plenty of people still alive and kicking on this earth) Bloomberg announced his candidacy.

However, the claims that Bloomberg's aides are researching the potential for an independent campaign (see the Times, once again) can't be completely unfounded. And indeed, such behind the scenes research (not to mention his recent nation-wide travel) is hard to square with Bloomberg's comments. One reporter confronted him about this apparent contradiction:

A reporter asked if it was appropriate for city employees “to be on the city payroll when they’re spending a good amount of their time” researching ballot access.

The mayor was curt, as he often is when challenged: “If you’d stop asking me about presidential campagins, they wouldn’t be spending their time on them.” He said he did not know of any city-employed lawyers working on ballot access and asserted that there was “no substance to your question.”

Mr. Bloomberg defended his extensive travel around the country, saying that issues like illegal guns and domestic security that are central to New York City are also important national concerns.

So, city employees (i.e. Bloomberg aides) are researching ballot access because reporters keep asking Bloomberg about a possible campaign? Given that Bloomberg is the mayor, it seems that he, and not reporters, would dictate how his own aides spend their time. And he is travelling the country because he wants to make the world a better place? Well, that may be true, but politicians, even when they are sincere about their desire to see America improve, typically want to be rewarded for that sincerity or at least have the ambition to try to be on the forefront of bringing about those changes.

So, I don't know what to think these days. Michael Bloomberg, you are a man of mystery.

Giuliani and the Iraq Study Group

The New York Times has an article about Rudolph Giuliani's early involvement with, and subsequent departure from, the Iraq study group. Apparently Giuliani missed a number of meetings because he was beginning the early stages of his presidential campaign (i.e. giving $100,000 speeches and the like).

Mr. Giuliani left the panel after being given an ultimatum to either show up for meetings or leave the group.

His explanation for leaving? He was planning on running for president. He said,

It seemed to me that it should be apolitical. The people who were on it are all people who have had very, very distinguished careers, but none of them are actively involved in politics or considering running for office.

So, he left the group because the partisan nature of his future presidential campaign might in some way tarnish what the group was striving for? That seems questionable, especially when one thinks about how great "I was a part of the Iraq Study Group" would sound as a part of a presidential campaign. I don't know what exactly happened behind the scenes, but I don't believe for one second that Giuliani left simply to preserve the integrity of the group.

Michael Bloomberg is Now Officially an Independent

Once again, I refer you to the New York Times. New York City Mayor Michael Bloomberg released this statement:

I have filed papers with the New York City Board of Elections to change my status as a voter and register as unaffiliated with any political party. Although my plans for the future haven’t changed, I believe this brings my affiliation into alignment with how I have led and will continue to lead our city.

A nonpartisan approach has worked wonders in New York: we’ve balanced budgets, grown our economy, improved public health, reformed the school system and made the nation’s safest city even safer.

We have achieved real progress by overcoming the partisanship that too often puts narrow interests above the common good. As a political independent, I will continue to work with those in all political parties to find common ground, to put partisanship aside and to achieve real solutions to the challenges we face.

Any successful elected executive knows that real results are more important than partisan battles and that good ideas should take precedence over rigid adherence to any particular political ideology. Working together, there’s no limit to what we can do.

This fully convinces me that Bloomberg will indeed run for President as an Independent in 2008. The last three paragraphs sound more like a presidential candidate's stump speech than a simple announcement of a change in party affiliation. Especially when he says "any successful elected executive knows that real results are more important than partisan battles." This sounds like an attack on the relationship between the Bush Administration and the Democratic leadership in Congress. And it suggests that it will take an independent as President (or as the Chief "elected executive") to move beyond this sort of stalemate. And "there's no limit to what we can do?" That sounds like the kind of phony optimism you'd hear Mitt spouting at one of his campaign rallies.

Why would a mayor, two years into his second term, up and change parties? For symbolic reasons? I doubt it. This seems more like Fred Thompson's "testing the waters" BS than anything else. I imagine he will announce an Independent candidacy for President within the next few months. And while I don't think he has any chance at winning, I think it's safe to assume that he would have the best chance of any third party candidate since Ross Perot.

UPDATE: Jake Trapper over at Political Punch cites a relevant quote from Michael Bloomberg:

I have no plans to announce a candidacy because I plan to be mayor for the next nine hundred and twenty six days.

I feel like we've heard things very similar to that from now-announced candidates in the past. So, take from that what you will.

Measuring Candidates' "Face Time"

The New York Times has an interesting chart, documenting the candidates' total television face time.



Perhaps I am looking too far into it, but it seems that this chart alone can tell us quite a bit about campaign strategy. For instance, Bill Richardson is higher than one might expect; he is trying to build name recognition. John McCain is the highest; he is trying to confront all the flak he has been receiving over the past few months. I think most of the positions on the chart can be explained in a similar fashion, but I am not so sure what to make of Hillary's position. I think there are two ways of approaching it: First, given that she is the front-runner, there is simply no reason to waste time talking to people like Chris Matthews. Second, her campaign does not want to put her on these news shows out of fear that she will do something damaging to the campaign. Throughout the early stages of this campaign, she has been accused of being overly scripted and acting solely on political calculation. That sort of campaign could really clash with a Chris Matthews type host. So, perhaps her campaign, given its comfortable position in the front, has decided that it is simply not worth the risk. I think the difference between these two options is subtle (they don't need to vs. they don't want to out of fear), but I think I lean toward the latter. I think Hillary succeeds in debates and stump speeches, which are both grotesquely scripted affairs. But, I think she would have less success in a less scripted venue, and I think her campaign agrees.

Fred Thompson, Peter Pace, and the Harry Reid "Controversy"

Fred Thompson has decided to jump into the Harry Reid "controversy":

Well, you've heard by now that Senate leader Harry Reid insulted one of this country's brightest military minds, Marine Corps General Peter Pace -- calling him "incompetent."

...

But Reid's comments are not meant for logical analysis. He proclaimed the war lost some time ago, and the surge as a failure even before the additional troops were on the ground. The problem is that every one of Reid's comments I've noted here has also been reported gleefully by Al Jazeera and other anti-American media. Whether he means to or not, he’s encouraging our enemies to believe that they are winning the critical war of will.

For those of you who haven't been following this sorry Republican talking point, the gist of it is that Reid (supposedly) called Pace, the Chairman of the Joint Chiefs, incompetent in a conference call with bloggers. This is, apparently, not only hugely insulting to Pace but a boon to our enemies. So says White House spokesman Tony Snow:

Snow told reporters that he hoped what he had read about Reid is "not true, because in a time of war, for a leader of a party that says its supports the military, it seems outrageous to be issuing slanders toward the chairman of the Joint Chiefs and also the man that is responsible for the bulk of military operations in Iraq.

Of course, Pace will only be responsible for military operation in Iraq until September 30, 2007, because Bush has essentially fired him. (Bush Defense Secretary Robert Gates advised President Bush not to renominate Pace for the job, and Bush agreed.) Pace didn't want to step down:

In his first public comments on the Bush administration's surprise decision to replace him as chairman of the Joint Chiefs of Staff, Marine Gen. Peter Pace disclosed that he had turned down an offer to voluntarily retire rather than be forced out.

Now, let's get this straight. Calling General Pace incompetent in a conference call gives aid to our enemies, but firing him doesn't? Joe Sudbay at AMERICAblog is all over the cognitive dissonance here:

If Pace is so competent, why is he losing his job as Chairman of the Joint Chiefs of Staff while we are in the middle of a war?

Is Tony Snow telling us that it's Pace's competence that has led us to where we are in Iraq? Pace is being fired as our top military commander either because he's incompetent (which is fine) or for purely political reasons (which is not fine in the middle of a war), so which one is it? Either way, Bush made the decision to get rid of the Chairman of the Joint Chiefs "in a time of war." And now that Harry Reid agrees with Bush for once, he's the bad guy? Then who is to blame for how horribly things are going in Iraq? Not Bush, apparently. And not the military commanders either, we're now being told. So does the White House blame the troops, or did some magic pixie run the war into the ground when nobody was looking?

There is nothing inherently with either criticizing or firing generals in the middle of a war. We've done it many times before in our history. As Kos puts it:

How many generals did Lincoln go through before he found Grant?

If I was in a satirical mood, I might write something like this:

"Personally, I think it was a huge mistake on Lincoln's part to fire General George McClellan in the Civil War. Not only was it insulting, but it made the Confederacy believe they were winning the war of wills. War isn't about competence and job performance, remember, it's about stick-to-it-ivness. Lincoln should have stood by McClellan through thick and thin. If only he could have turned to Tony Snow for advice, he might have learned a thing or two about leadership."

UPDATE: For more on this topic, check out the excellent Glenn Greenwald:

But beyond that obvious point, the spectacle of George Bush's press secretary lamenting attacks on military officers is just laughable. The President was re-elected following a political convention where his followers mocked John Kerry's purple hearts by waiving around band-aids. And decorated war veterans from John Murtha to Max Cleland to Wes Clark have seen their character and integrity -- not their mere competence -- publicly mauled by the President's political movement.

The Supreme Court Tackles More Traffic Issues: Brendlin v. California

I tend to blog about 5-4 decisions, whining about the majority opinion, but here we have a unanimous opinion, and one that I can agree with.

In Brendlin v. California (I'll direct you once again to the New York Times), the Court decided that a passenger in a vehicle that has been pulled over has just as much of a right to challenge the traffic stop as does the driver. This was a no-brainer (indeed, Lyle Denniston at SCOTUSblog describes this decision as "Applying a considerable dose of common sense"), for after all, when a vehicle is stopped, the passenger is restrained (or "seized" in Fourth Amendment terms) just as much as the driver is. Writing for the Court, Justice David Souter notes:

The test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave.

So, in other words, unless a passenger reasonably assumes that he can leave during a traffic stop (which would presumably never happen, as passengers need permission to exit the vehicle), he has been seized, and thus has grounds for challenging the seizure in Court.

There isn't a whole lot to say about this case; it is a pretty dull case for the most part. All of the Courts of Appeals and nearly all of the State Courts agreed with this ruling. Only a select few State Courts (one of which was California) were senseless enough to argue that the passenger is not seized in a traffic stop.

I'm glad the Court put them in their place.

Financing Judicial Elections

The New York Times has an editorial denouncing the recent increase in fund-raising in state judicial elections.

By 2004, the amount raised by candidates for states’ highest courts had reached nearly $47 million nationwide, up from $29 million in 2002. In 2006, total fund-raising decreased to $34.4 million, largely owing to a decrease in the number of contested races. But the median amount raised by individual candidates in 2006 soared to nearly $244,000 — from the 2004 median of about $202,000.

Television ads, until recently a rarity in top-level state court races, are now the norm. Such ads ran last fall in 10 of the 11 states where such judges were up for election, compared with just 4 of 18 states in 2000. Average spending on television airtime per state was also up, much of it for 15- and 30-second attack ads. In the race for Alabama’s chief justice seat, the second-most-expensive judicial race ever, 17,830 spots were run on behalf of candidates.

The idea, of course, is that money and judicial elections do not mix. This makes sense to a certain extent; the notion that judges can be "bought off" is frightening. However, this editorial seems to suggest that advertising in judicial elections is inherently bad. I do not see why; advertising is required for an informed electorate, especially when it comes to these sorts of elections. Judicial elections have long been characterized by extremely low voter turnout (most judicial elections are held either in odd years or during the spring elections, meaning that there are no Presidential, Congressional, and very few gubernatorial elections to bring out the voters), and perhaps as a consequence, many uncontested races. As a matter of democracy, this is shameful. In this light, advertising could be seen as a good thing; it "informs" (I put that in quotes because I don't know how much true information one can gather from a campaign ad) the public, hopefully inspiring them to vote.

What we're talking about here is competition. Increased spending isn't a sign of impending doom, it is a sign of increased competition, or democracy in action, if you will. Certainly, it is troubling to think that whoever raises the most money can become a judge just like that (although, the editorial does point out that the victor in fund-raising is the victor in the election in only 68% of elections), but it is even more troubling to think that someone can run unopposed and become a judge just like that.

Judicial elections are meant to secure judicial accountability. Making judicial candidates be more vocal seems to be a step toward accomplishing that. Of course, there are plenty of worthwhile arguments against judicial accountability, but such arguments would require denouncing judicial elections per se, which this editorialist seems hesitant to do. But that makes me wonder: why support judicial elections if you do not support judicial accountability? As long as judicial elections are around, I think this trend (i.e. getting more interests - yes, even business interests - involved) is a good thing. After all, if the choices are democracy with no one involved and democracy with more people involved, I'll take the latter. Of course, neither of these choices may be good as a method of choosing judges (I, for some inexplicable reason, favor executive appointment), but that's not the point. The point is that the trend we're seeing is an improvement from the previous way of going about things.

Obama, Thompson take lead in South Carolina

African-America support has pushed Barack Obama in front of Hillary Clinton, 34% to 25%, in the latest Mason-Dixon poll in South Carolina. John Edwards is in third with 12%, and 24% of respondents are undecided. (Maybe they're going to break for Mike Gravel! Don't laugh... haven't you seen his new avant-garde campaign ad?
'Nuff said.)

Meanwhile, Fred Thompson has taken the lead on the Republican side, leading Rudy Giuliani 25% to 21%, despite the fact that he has yet to officially declare his candidacy. Mitt Romney is third with 11%. McCain really does look like he's finished, polling a paltry 7%.

Univision bans Spanish at upcoming Democratic presidential debate

The Spanish-language cable network, Univision, is getting ready to host a Democratic presidential debate, where it will make all candidates promise to speak only in English. This has Senator Chris Dodd of Connecticut and former New Mexico governor Bill Richardson, both fluent Spanish speakers, all riled up. Understandably, they want a chance to show off their skills. John Aravosis at AMERICAblog thinks Univision is making a big mistake:

This is ridiculous, certainly callous on a Spanish-language network during a debate meant to reach Latinos, and borders on racist as well. I really am increasingly tired of these debates having to follow all sorts of ridiculous rules that the candidates concoct. If some of the candidates refuse to show up because Univision refused to ban Spanish, let those candidates explain that to America's 20 million Latinos.

I have to disagree. It's not that I don't like Spanish- having studied abroad in Mexico and Spain, I'm fairly proficient at it myself. It's just that if the debate is supposed to be an argument about the pros and cons of various issues, then it seems unfair for some candidates to be able to speak a language that the others do not understand. How can the non-Spanish speakers respond to a point in a language they don't speak? A debate is not just a series of soundbites delivered to the audience- the other candidates need to be able to understand the arguments being made by their opponents.

To bomb or not to bomb: the administration debates starting a war with Iran

An article in the New York Times makes clear that the debate over whether to start a war with Iran is alive and well in the White House:

A year after President Bush and Secretary of State Condoleezza Rice announced a new strategy toward Iran, a behind-the-scenes debate has broken out within the administration over whether the approach has any hope of reining in Iran’s nuclear program, according to senior administration officials.

The debate has pitted Ms. Rice and her deputies, who appear to be winning so far, against the few remaining hawks inside the administration, especially those in Vice President Dick Cheney’s office who, according to some people familiar with the discussions, are pressing for greater consideration of military strikes against Iranian nuclear facilities.

...

But conservatives inside the administration have continued in private to press for a tougher line, making arguments that their allies outside government are voicing publicly. “Regime change or the use of force are the only available options to prevent Iran from getting a nuclear weapons capability, if they want it,” said John R. Bolton, the former United States ambassador to the United Nations.

Only a few weeks ago, one of Mr. Cheney’s top aides, David Wurmser, told conservative research groups and consulting firms in Washington that Mr. Cheney believed that Ms. Rice’s diplomatic strategy was failing, and that by next spring Mr. Bush might have to decide whether to take military action.

It's good to know that Condoleezza appears to be winning this debate right now. But the fact that Cheney & Co. are just itching to pull the trigger on another war is downright disturbing. Glenn Greenwald points out that we've been down this road before:

The narrative is identical, of course, to the pre-Iraq-war "debate" which the media so vocally dramatized, with Secretary Rice in the role of reluctant warrior formerly played by Colin Powell, and Dick Cheney reprising his role of unabashed warmonger. It is true that there have been some personnel changes since then (most notably, Robert Gates in the place of Donald Rumsfeld), but George W. Bush is still the Decider, and he has not exactly been ambiguous about his views on the proper resolution of such "debates." As he told a group of right-wing pundits in October 2006: "I've never been more convinced that the decisions I made are the right decisions."

I don't think Bush is willing to sacrifice Iraq to strike Iran, which starting another war would essentially entail. (It's hard to imagine the chaos that would ensure if Iran got its Iraqi Shiite allies to fight an all-out war against our troops.) But no one can deny that the similarities of the Iraq debate to the Iran debate certainly are striking, right down to Joe Lieberman falling all over himself to endorse another preemptive war:

“I think we have to be prepared to take aggressive military action against the Iranians to stop them from killing Americans in Iraq,” Lieberman said. Host Bob Schieffer followed-up: “Let’s just stop right there. Because I think you probably made some news here, Senator Lieberman. You’re saying that if the Iranians don’t let up, that the United States should take military action?” “I am,” Lieberman responded.

Now, how much does Cheney want a war with Iran? Well, check out this Washington Note article from May 27:

Multiple sources have reported that a senior aide on Vice President Cheney's national security team has been meeting with policy hands of the American Enterprise Institute, one other think tank, and more than one national security consulting house and explicitly stating that Vice President Cheney does not support President Bush's tack towards Condoleezza Rice's diplomatic efforts and fears that the President is taking diplomacy with Iran too seriously.

This White House official has stated to several Washington insiders that Cheney is planning to deploy an "end run strategy" around the President if he and his team lose the policy argument.

The thinking on Cheney's team is to collude with Israel, nudging Israel at some key moment in the ongoing standoff between Iran's nuclear activities and international frustration over this to mount a small-scale conventional strike against Natanz using cruise missiles (i.e., not ballistic missiles).

...

The zinger of this information is the admission by this Cheney aide that Cheney himself is frustrated with President Bush and believes, much like Richard Perle, that Bush is making a disastrous mistake by aligning himself with the policy course that Condoleezza Rice, Bob Gates, Michael Hayden and McConnell have sculpted.

According to this official, Cheney believes that Bush can not be counted on to make the "right decision" when it comes to dealing with Iran and thus Cheney believes that he must tie the President's hands.

At least this supports the notion that President Bush is leaning towards the diplomatic option (aka the "not insane" option). But the rest of it is chilling to say the least. I think the lesson from all this is that it's not enough to just concentrate on the election in 2008. It's clear that the Republican administration has more than enough time left in office to make a gigantic mistake, like start another war.

Rudy Giuliani: Fear Monger

Rudy Giuliani recently announced his "Twelve Commitments to the American People." Take a look, there are some interesting things, but I only want to comment on the first: "I will keep America on offense in the Terrorists’ War on Us."

"War on Us?" Well, that doesn't sound as happy-go-lucky. Indeed, it sounds rather like, what's that phrase I'm thinking of? Oh yeah... fear mongering. Maybe I'm naive, and maybe I have too much faith in the American people, but six years after 9/11, I think the power of fear mongering has faded. And Rudy shouldn't be allowed to get away with it just because he was there. If I were Bill Maher, I would say, "New Rule: Rudy Giuliani has to get off the 9/11 train. We get it, you were there, you said some nice things to comfort some people, but honestly, any halfway decent mayor would have done just as good of a job. And let's face it, 9/11 is the only reason that you're politically relevant these days. You were lucky, Rudy. You're the Ringo Starr of the presidential race. So, stop pointing out that you're here for a really bad reason and just hope that no one catches on."

Bill Maher's funnier than I am. Oh well.

On a slightly different note, I was watching a Mitt ad, and something struck me.

When Republicans candidates talk about wasteful spending, they have to be talking about President Bush. So, when the Republican crowds cheer for these Republican candidates, they're really cheering against their Republican president, whom they probably still "strongly support" in polls. Perhaps this (i.e. suggesting that we need some rather vauge notiong of change) is the closest any of the Republicans will come to attacking Bush. We shall see.

A Quick Response Regarding the Second Amendment

Below, DC points out an argument made in a comment regarding my interpretation of the Second Amendment. I felt the need to respond.

I quote the argument again:

If the first amendment read, "a well informed electorate, being necessary to a free people, the right of the people to free speech shall not be infringed," would you suggest that the right of free speech was a collective right existing only to voters and only as to political speech? I doubt it. Beyond that, the militia was at the time of the founding of the Constition, all freemen capable of bearing arms, and in fact by federal law is all males between the ages of 18 and 45 and all female members of the National Guard, with some minor exceptions, so your National Guard theory is wrong as a matter of fact. Moreover, not one legal scholar ever embraced this restrictive view of the amendment prior to the 1930s. The evidence is overwhelming that the amendment was intended to protect private ownership of arms, otherwise it would have essentially gutted the federal government's powers to arm and control the organized militia set forth in Article 1, Section 8. You need to actually read the militia clauses to understand this.

First, if the First Amendment read as the commenter suggests, I would have a more restrictive view of free speech, at least constitutionally. As it stands, the First Amendment protects all speech (or almost all, for practical purposes). However, under the commenter's hypothetical amendment, if there is some form of speech that is clearly not directed toward political discourse, it could be outlawed (e.g. the recent "BONG HITS 4 JESUS" case would be a no-brainer). Of course, I would have major problems with such a rule and I would question the wisdom of the framers of the Constitution if they did that, but I would indeed recognize that it does not protect all speech.

Second, I do not argue that the Amendment did not protect private ownership at the time of ratification. As commenter points out, private ownership had to exist in order for Congress to "provide for organizing, arming, and disciplining, the militia." As a matter of fact, this seems indisputable. However, given that a broad understanding of "the militia" no longer exists, and Congress is not organizing, arming, and disciplining this non-existant militia, not allowing private ownership would no longer detract from Congress' Article 1, Section 8 powers as a practical matter.

I've never been a proponent of Originalism or Textualism or any other of those jurisprudential theories that masquerade as "judicial self-restraint." I think that the Constitution is an organic document, so to speak. In order for it to be relevant in modern times, we need to make it relevant. And given that the understanding of the word "militia" has drastically changed since 1787, I think it is foolish to interpret the Second Amendment in 2007 based on a 1787 definition.

The Second Amendment

A commenter disagrees with the restrictive interpretation of the Second Amendment we hold here at One More Political Blog:

If the first amendment read, "a well informed electorate, being necessary to a free people, the right of the people to free speech shall not be infringed," would you suggest that the right of free speech was a collective right existing only to voters and only as to political speech? I doubt it. Beyond that, the militia was at the time of the founding of the Constition, all freemen capable of bearing arms, and in fact by federal law is all males between the ages of 18 and 45 and all female members of the National Guard, with some minor exceptions, so your National Guard theory is wrong as a matter of fact. Moreover, not one legal scholar ever embraced this restrictive view of the amendment prior to the 1930s. The evidence is overwhelming that the amendment was intended to protect private ownership of arms, otherwise it would have essentially gutted the federal government's powers to arm and control the organized militia set forth in Article 1, Section 8. You need to actually read the militia clauses to understand this.

Welcome, MyDD readers!

We're glad you decided to stop by. Take a look around. Our focus here at One More Political Blog is primarily on American politics, foreign policy, and the law. Check out some of our favorite posts, including Sarge's satirical advice for Keith Olbermann:

Anyone can see the problem with Olbermann’s assessment: he uses big words. Words like “asinine,” “caveat,” “benchmarks.” The average American feels the same way about big words as he does about illegal aliens: tolerable when they’re working for you, but a serious threat to self-complacency in all other aspects.

Fz's disillusionment with Joe Lieberman:

I think a "rank and file" Senate is a terrible thing for American politics. But, this has gone too far. This is not the action of a "moderate Democrat," which I sincerely thought Joe was. This is the action of a Republican.

And my thought experiment on which political parties would arise if the United States had a system of proportional representation (here, here, and here):

The old fault line between libertarians and social conservatives will finally crack. The libertarians will flourish in their own party, while the social conservatives will divide themselves into economic liberals (concerned with the environment and poverty as well as abortion) and Christianists obsessed with "family values" issues. A strong anti-immigration party could surprise the political establishment. Meanwhile, country-club Republicans will be relieved to be rid of the more embarrassing elements of the old Republican coalition.

Enjoy!

Gay Marriage Still Legal in Massachusetts

Perhaps I am stepping on toes, as DC is from that great state of Massachusetts, but I wanted to comment on the state's vote to block the proposed "marriage is between a man and a woman" amendment from going to referendum in 2008.

I know next to nothing about Massachusetts politics, so I will comment on the broader issue here. I have yet to hear a convincing non-religious argument for banning same-sex marriage. The overwhelming majority of gay-bashers will point to Christianity or some vague notion of "tradition" as condemning homosexuality. Oddly enough, the cultures that formed the "tradition" of Western civilization (primarily the Greeks and the Romans) hardly looked down upon homosexuality, but I suppose that is beside the point. So, people argue "the Bible defines marriage as between a man and a woman," which I'm pretty sure it doesn't, but let's go with it for the time being. For any political figure to use religion as primary reasoning for any piece of legislation is to blow a gaping hole in the "high wall of separation" that Thomas Jefferson described as existing between religion and government. Indeed, the First Amendment states, "Congress shall make no law respecting an establishment of religion." In other words, Congress cannot establish a religion or make any laws that suggest an establishment of religion (for instance, while Congress may not establish Christianity, passing a law requiring compulsive Bible-reading would clearly imply an establishment of Christianity). So, if the only source of defense for a law is the Bible, doesn't that suggest that it is establishing a religion? After all, if we ask, "Why is gay marriage still illegal in this country?" one answer would certainly be "because America is still largely populated by bigots who try to hide behind Jesus," but a more useful answer for our purposes here would be "because Christianity says so."

Hmm. A law based solely on religion (and quite possibly a skewed reading of religion). This, to me at least, seems blatantly unconstitutional (and this is without even diving into "equal protection" considerations!). I would be curious to see how a Constitutional challenge to such laws would fare in the Supreme Court. I am inclined to think that such a law would be overturned, even given the current make-up of the Court. After all, unlike Scalia and Co., Justice Kennedy is no enemy of the "homosexual agenda." After all, in Lawrence v. Texas, he authored the opinion that deemed unconstitutional a law banning homosexual sodomy. Of course, the decision did not reach as far as marriage rights, but it certainly paved the way for such a case. With the precedents in Lawrence and Loving v. Virginia (deeming unconstitutional a law banning inter-racial marriage), I simply do not see how a reasonable Court could uphold such a law.

I anticipate a case challenging the federal Defense of Marriage Act within the next few Supreme Court terms. The law does not require any state to recognize a gay marriage done in any other state. So, now that Massachusetts is allowing gay marriages, it seems fully possible that a couple married in Massachusetts will sue another state for not recognizing its marriage.

How can we explain the court's anti-gun control ruling in Parker v. District of Columbia?

I happen to agree with Fz's reading of the Second Amendment: namely, that it protects the right to bear arms purely for the purpose of establishing a well-regulated militia. So why didn't the Court of Appeals for DC follow this line of reasoning in Parker v. District of Columbia? Well, an article that ran in the New York Times a while back argued that liberal legal scholars, of all people, were the main force behind a general change in the interpretation of the Second Amendment:

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”

Clearly, the liberal legal scholars didn't intend for this to happen; but they were forced to embrace an individual-rights interpretation of the Second Amendment by their own philosophy of expansively interpreting the Constitution. Not everyone, however, is willing to give so much credit (or blame) to the liberals for this sea change in constitutional interpretation. Jack Balkin credits larger forces:

If the Supreme Court eventually holds that the Second Amendment protects an individual right, it will largely be because social and political movements changed popular opinion and influenced elite legal opinion. These changes have been coming for some time: The Bush Justice Department has already adopted the individual rights position, and so too has the D.C. Circuit in its recent Parker opinion.

And Randy Barnett at the Volokh Conspiracy thinks we're ignoring the obvious:

What the story leaves out, of course, are the prodigious efforts of those "libertarian" and "conservative" constitutional scholars who did much of the heavy lifting when it comes to the original meaning of the Second Amendment AND the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

On the Second Amendment (Inspired by Parker v. District of Columbia)

The Supreme Court may soon have a chance to decide what exactly the Second Amendment implies. Recently, in a case called Parker v. District of Columbia (more on that here), the Court of Appeals for DC struck down a strict gun control law, and the judge who authored the opinion stated that the District should appeal to the Supreme Court. Of course, there is no guarantee that the Court will accept the case, but if it does, this would be an interesting chance for it to rule on how far the right to bear arms goes, and given the current orientation of the Court, gun control advocates may not be too happy with the results.

With the facts of this specific case aside, here is my interpretation of the Second Amendment. The Amendment reads, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." So, unlike so many other constitutional rights, it gives an explanation as for why the right exists, and in my interpretation at least, it sets limits on that right.

Using only the language of the amendment as guidance, let's ask ourselves, "Why does the right to keep and bear arms exist?" It seems rather clear that the purpose of it is either to establish or to ensure the protection of "well regulated militias." As far as I know, "militias" have evolved from groups of private citizens to what we now call the state national guards. So, back in the 18th century, private gun ownership did allow for well-regulated militias to be established. However, such is not the case today.

Of course, the common argument is that even though we (aside from the national guards, of course) do not have well-regulated militias, private ownership of guns ought to be constitutionally protected in case private citizens were ever to find themselves in the position where they would have to attempt to establish a "militia" and defend against an oppressive government (this argument is enhanced by the fact that the state national guards are under the control of the President).

Despite the humor involved in such a claim (a bunch of rednecks with shotguns are going to take on the United States military?), it is foolish on other grounds: it has no basis in the Constitution. The fact of the matter is that private owners who may or may not (with the odds on the latter) have to assemble to form some sort of "militia" do not constitute a "well-regulated militia." If these private owners assembled once a month, say, and conducted drills, or at least had some sort of structure, we might be able to consider them a militia. But, as it stands, a group of unaffiliated private owners does not constitute a "well-regulated militia." Thus, I argue that the Second Amendment does not protect private ownership of guns.

Certainly, there may be other arguments to be raised regarding the usefulness of private gun ownership (e.g. guns provide protection in an inherently unsafe environment), but they do not find basis in the Constitution. If the Second Amendment simply read "the right to bear arms shall not be infringed," I would not be raising these concerns. However, it explicitly states the reason why that right ought not to be infringed. And modern private gun ownership simply does not square with the goals of the Second Amendment.