"The only two candidates that speak clearly are the ones they call the kooks"

Former Barry Goldwater speechwriter Victor Gold has this to say about the next election (Via Andrew Sullivan):

"The only two candidates that speak clearly, you see, are the ones they call the kooks. On the Democratic side they ask Mike Gravel a question and he goes, "Do you think Ameri-- English should be the official language?" He said, "Yes." And the rest of them say, "No, not the official language, the national language." I said, "Well, what the devil is the national lang"-- I mean, why don't you just say "no"? And on the Republican side you have Ron Paul, who was the only candidate who is antiwar and pro-civil liberties. That is he opposes what this administration is doing in terms of civil liberties. And they call him a kook. That's the closest thing you can get [to Barry Goldwater]. So you can imagine Senator Goldwater, if he were-- he'd probably throw up his hands at the whole process and not run."

Of course, I seem to recall Dave Barry saying something along the lines that Goldwater lost because, at the time, he appeared too crazy to trust with a toaster, let alone a nuclear arsenal.

Weekend Roundup

Here are some interesting stories from this weekend. The first is from the Times (London):

ZIMBABWE’S leading cleric has called on Britan to invade the country and topple President Robert Mugabe. Pius Ncube, the Archbishop of Bulawayo, warned that millions were facing death from famine, unable to survive amid inflation believed to have soared to 15,000%.

Mugabe, 83, had proved intransigent despite the “massive risk to life”, said Ncube, the head of Zimbabwe’s 1m Catholics. “I think it is justified for Britain to raid Zimbabwe and remove Mugabe,” he said. “We should do it ourselves but there’s too much fear. I’m ready to lead the people, guns blazing, but the people are not ready.”

Some parts of Zimbabwe have seen 95% of crops fail, leaving families with only two or three weeks’ food supply to last a year. Prices in the shops are more than doubling every week and Christopher Dell, the American ambassador, predicts that by the end of the year inflation could hit 1.5m%.

Yes, that's when you know things are bad: when people actually want an invasion. The second article is a Guardian report on the sad situation of Alan Johnston, kidnapped by Jaish al-Islam in the Gaza Strip:

The arrest of two militants from the radical group holding BBC correspondent Alan Johnston hostage has put the journalist's life in great danger, according to sources in Gaza and within the group itself. Johnston, who was kidnapped on 12 March, today endures his 111th day in captivity. On Monday a video of him wearing what seemed to be an explosives vest was released by his captors.
...

Hamas security forces snatched two members of Jaish al-Islam on their way from dawn prayers on Tuesday and held them at the former Fatah military intelligence HQ. According to a Jaish member, one of the arrested men was given a mobile phone to call his comrades as a start of negotiations to swap them for Johnston, but instead the man told them not to bargain for their freedom.
...

Moderates in the Dogmosh family say that Jaish al-Islam, while always devoutly religious, has become more radicalised and closer to al-Qaeda in the past year with the arrival of veterans of wars in Chechnya and Iraq, and they fear their relative Mumtaz has fallen under the sway of al-Qaeda's brand of global jihad, rather than resisting Israeli operations and occupation. These new members have brought with them experience, both military and religious. It also explains demands for the release of Islamic militants not linked to the Israeli-Palestinian conflict.

You also know things are bad when there's a hostage situation and Hamas is your best hope. Third, check out this article from the Economist:

A NEW disease is abroad in eastern Germany: Frauenmangel, lack of women. In some towns there are only 75 young women for every 100 young men. In one or two there are as few as 40. The effects are worrying, not only because populations may shrink but also because of the existence of a growing underclass of young men who are partnerless, underqualified and jobless.
...

The few women who stay prefer single parenthood to hitching themselves to useless partners—benefits for single mothers are generous. It is women who are now masters of their destinies. The study, which combines reportage with figures, tells of frustrated gangs of youths drinking outside supermarkets and sleeping on their loading ramps.

Thank goodness I attend a small liberal arts college, where the girls outnumber the men! Finally, an article from the Los Angeles Times entitled "In Iowa, 6 GOP hopefuls, 1 party line":

One by one, half a dozen Republican presidential hopefuls auditioned Saturday before an Iowa audience of economic and social conservatives, pledging lower taxes, tougher border enforcement and a tighter-fisted approach to federal spending.

The candidates also echoed one another in reiterating their opposition to abortion and to legalizing same-sex marriage.

"One man. One woman. Lifetime relationship," said former Arkansas Gov. Mike Huckabee, who joined former Massachusetts Gov. Mitt Romney in advocating a constitutional amendment spelling out that domestic arrangement.

Of course, they don't support an amendment that would spell out that domestic arrangement; last time I checked, the proposed amendment didn't outlaw divorce.

That's all for now. Stay tuned!

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!