Mark Levin had a few thoughts last night to open his show. And was anything but immediately dismissive.
I was, I thought, quite circumspect in my original post on the topic — which didn’t keep some on the right from singling me out as among the hysterics concerned about an Obama power grab (while curiously failing to single out those closer to home for similar concerns more extensively articulated than mine). This despite the fact that I’d updated the post and sent out clarifying follow-up Tweets many hours before I was tut-tutted.
But be that as it may.
The problem with the EO is not necessarily that Obama revised it — though his revisions themselves should probably be more closely studied, because as I’ve discussed here over the years, a textualist approach to interpretation (and this tends to be the approach most favored by those seeking to expand power) will allow for a motivated interpreter, who in this case would have the entire force of the instrumentalities of government at his disposal, to present a reading of the document that would give him the widest possible statutory latitude for presumed authority, regardless of the intent of those who approved the original language. Just as the problem with the document is not that it is exclusive to Obama, having been around in various forms since 1950 or thereabouts.
Instead, the problem, which I believe began with Clinton’s revisions in 1994, is that the governmental authority put in place gives the government such a wide berth for determining when and why it needs be implemented — while simultaneously providing no immediate recourse for its cessation.
Obama has pressured the Constitution regularly during his presidency, be it over his power to define Senate rules, or his Administration’s decision not to defend duly passed federal law, or through attacks on individual autonomy or religious liberty. To leftist ideologues like him, the Constitution is a “flawed document” that isn’t even binding — and a hindrance to effective governance inasmuch as it throws roadblocks up at every turn to problematize the momentum of change progressives long to set in motion.
And documents like this EO (and even some of its predecessors) lay the foundation for a potential extra-Constitutional power grab of enormous and near unprecedented proportions.
So why worry about this now — and not so much when, say, Bush made his revisions, and didn’t roll back the revisions introduced by Clinton?
This is a fair question, and one for which there is an answer, regardless of how unhelpful some on the right believe it is that some of us keep pressing the issue: this President is consistently looking for ways to pressure Constitutional authority. And so it is worth looking more closely into the exact nature of the latest revisions to the EO, because many of us are concerned that, with the weather warming up, and with the OWS protests having already been through a trial run, what comes to count as the kind of domestic emergency that triggers the authority in this EO may be so vaguely defined — and intentionally so — that there exists a very real, though admittedly very remote, chance that the such authority is marshaled.
And frankly, no President should have the kind of power granted by this EO — at least, not without more specific restraints and fail safe measures attached. But particularly not this one, who — however remote you believe the possibility is (and I tend to think it very remote) — has a demonstrable history of looking to override constitutional constraints on his power.
— all of which is true regardless of whether the reason I believe it is because voices of Revolutionary-era soldiers coming from my Mason ring tell me so.
George Mason rings in my ears now and then too.
Ah, vindication. Btw Jeff, nice job in your comments at AOSHQ. I noticed that no one – especially Mr. Malor- was very anxious to come out and play.
This is all worth keeping a close eye on. Anyone here with above average knowledge of how SCOTUS conducts it’s daily business? If so, would they (you) think that this is something they would, or could, examine on their own and weigh in on if they felt it necessary?
No, no, Jeff. It’s not that you have a Reynolds Wrap porkpie and fret over flouridation. You have been chastised because you failed to ask the only relevant question when posting that story:
Does this help Romney?
They fear. They fear the progressive 20%.
But mostly they fear being seen as what they fear to be. Principled.
Well, some of us were worried about it when Clinton made his revisions — and UIM Bush’s were consequent to the Office of Homeland Security getting spun up to the level of Department, which, even some of us Reagan-Republicans-at-18 didn’t even see the point of the Office — so there may have been a distraction or two from noticing those revisions.
“. . . examine on their own and weigh in on if they felt it necessary?”
“Cases and controversies”, so no, they wouldn’t on their own.
George Orwell, I thought we agreed to not bring up Mr. Gabriel Malor, Esq.
No special knowledge here but, as a rule SCOTUS doesn’t take up any issue they’re not asked to take up. I’m unaware of them ever acting preemptively on anything.
It’s not too late to recant those earlier, less aware thoughts, McGehee. Here come the torches.
I have no comment on the Gabriel Malor, Esq., we all know and laugh at behind his back.
Those torches better be dipped in citronella, and their bearers better have brought beer.
BTW, at Ricochet for example James Delingpole notes we should not be so blithe about grand contingency plans, while the estimable James Yoo seems to have an attitude of “no big deal” because:
…the power is not being exercised here, only being delegated from the President to the Commerce and Energy Secretaries — and they cannot use the power until there is a finding made about shortages in critical materials vital for national security.
So don’t worry, no one would ever abuse those powers. You unserious, silly wingnuts.
Next thing you’ll be telling me the necessary and prudent establishment of the DHS will lead to civil servants in airports groping little girls for anal explosives. Gimme a break.
Didn’t Mr. Fish explain this adequately yesterday? Might makes right, and Obama can live with that. It is kind of ironic that the great fear that elections might be cancelled only comes when a Republican in in the White House.
Re: Yoo’s answer. Who makes such findings? And does the EO give the President the power to ignore those findings if he himself determines the need?
Again, I’m not a lawyer and don’t have the patience today to parse the document so closely, but it seems to me that these are questions that are worth asking, particularly if we know this thing is (always potentially) hanging over our heads like a tyrannical sword, waiting for a charging of the Visigoths.
Jeff G. and McGehee @#5. I fully agree.
“Re: Yoo’s answer. Who makes such findings? And does the EO give the President the power to ignore those findings if he himself determines the need?”
Haven’t read Yoo yet but it seems like the idea may rest on a member of the Praetorian guard deciding *Oh, the hell no, this isn’t such an emergency* whereupon to put a bullet to him.
Of course, the unplanned or poorly planned takeout can result in worse circumstances.
Establicans observe that yes, there is a thug with known malice aforethought on his mind running around town in armor all night and all week and all year and legally waving a loaded howitzer at people’s windows.
Against this there is scant defense but it’s likely he won’t actually use any of that stuff. Stuff they gave him.
Re: Yoo’s answer. Who makes such findings?
This has to be something under the purview of the executive. I assume we’re talking about findings ordered by the President, and the President can get the answer he wants.
It is annoying that a smart guy like Yoo who defended ably the Bushies over the waterboarding nonsense, has no problem with government continuing to plan consolidation of power over the citizens of the nation, even if under the excuse of “critical strategic material shortages.” Of course, gubmint grew enormously under Bush 43, so I guess Yoo is okay with a little more.
Hey, wanna bet availability and cost of medical treatment will ever be discussed seriously as a “strategic matter of national security?” Give it a decade. How far is the rhetorical step between “our medical system is in a national health crisis” and “our very medical system is an integral part of our national security?”
That. National security being sufficiently equal to costs-to-society in these our Living Constitution times. Times of linguistic signs and wonders.
Plus, free stuff! so who’s gonna complain?
George, rather than getting the answer he “wants”, I suspect Yoo would say he would have to get the answer he “must”, and only in condition of such a “must” would the Act be properly exercised. Or something like that. The Constitutional scheme, in other words, imagined a condition of necessity and instituted the strong executive powers of command in war as a solution.
Yoo’s “no big deal” might very well mean “nothing new here” more than anything else.
The fact that I haven’t read what he wrote does not keep me from expressing my opinion on it.
Well, cranky, there’s not much new, but some people I’ve read are expressing concerns that the minor changes made can, under the purview of a textualist interpretation (they didn’t say that, I’m saying that, because I always say that) and with an audacious enough claim to authority, change the very nature of the thing as it was intended to operate.
That a bunch of lawyers on all sides express their belief that this isn’t a problem because it isn’t likely to happen is not terribly reassuring.
I remember people laughing at me when I rejected tobacco settlements by noting that the government would be coming after your snack cakes and sodas next. Or forcing you to do morning Tai Chi.
And I’m not sure I wasn’t dead on about that, if you give it another 15-20 years.
See PART II Sec. 201 (3).
Bob Higgs makes an empirical or historical case of the ratchet and pawl effect of crisis and the growth of American government.
Jeff G., I share your concern about stuff like this. I think the very fact of this EO’s existence, no matter who created it originally, is suspect. The whole thing appears unconstitutional (then again, all EOs probably fall into that category).
I trust Obama about as far as I could throw Chris Christie. I think a lot of things are going to happen in the near future that haven’t happened before, and Obama will not let a crisis go to waste.
I was just commenting on Yoo’s take. I have listened to all the “Law Talk” podcasts and I’ve noted that Yoo often takes a “no worries” approach when I wouldn’t.
The fact that I’m not a lawyer, and neither are most of the rest of us, should have no bearing on how we can interpret this EO. I refuse to treat lawyers as better than any other professional class. Since they deal in language, anyone who can read well should have no trouble with reading law, beyond passing out from boredom.
I remember people laughing at me when I rejected tobacco settlements by noting that the government would be coming after your snack cakes and sodas next.
Salt, light bulbs, toilets, sugar, fitted sheets in hotels, your home’s property as judged by the EPA, plain dust, your exhalation. There’s no end to what must be managed by government, when the purpose of government is to manage all human activity… otherwise how can we create a just world?
Ahem.
This EO is small beans in the short term, but is it really necessary to surrender yet another sliver of our liberty to the State? What would the first five Presidents made of such an order? No one at this site really saw a conspiracy here, just another example of Leviathan filling in the cracks.
I’ve noted that Yoo often takes a “no worries” approach when I wouldn’t.
Epstein is better in this regard.
Epstein is a worrier. I like that about him.
That looks interesting sdferr. Even the description gives a gem:
“Yeah the waters getting warmer” says the frog,” but it ain’t nothin…”
A useful comment from that thread at Ace.
follow the money
link
I was accused of high warbling. But I think I merely offered a muted, inquisitive chirp.
high warbling in a crowded theater is sometimes justified.
goldwater ’64
Soylent Navy by EO.
Unstable regions like Canada and North Dakota.
Even sober warbling is a bit visigothy, I’m guessing.
The Military-Agricultural Complex.
What could go wrong with that?
Has anybody looked into who owns these lucky vendors? Didn’t the Clintons own a chunk of Tyson Foods?
Yeah, because that would just be silly, to pay a lower price for a commodity.
But — let’s pretend there is a real adversary to debate here rather than a carved idol they’ve put whiskey and cigars next to like the primitive losers they actually are — to lead you figure out how to produce an equivalent at $2 a gallon.
Or if that is even feasible, bh. It takes the equivalent energy of a gallon of gasoline to produce a gallon of biodiesel from corn, as well as an assload of corn, so that is never going to be competitive.
I would imagine that making biodiesel from algae or chicken by-products is no more efficient.
Now, now there.
The world is strange with retards in control.
From the wiki:
Tyson Renewable Energy
Tyson’s processing plants are left with a vast supply of animal fats. In late 2006, the company created a business unit called Tyson Renewable Energy to examine ways to commercialize use of this leftover material by converting it into biofuels.[4] The unit is also examining the potential use of poultry litter to generate energy and other products.[5] On April 16, 2007, Tyson announced a joint venture with ConocoPhillips to produce roughly 175 million gallons of biodiesel a year— enough to run Tyson Foods’ truck fleet for 3.5 years.[6]
But why use it in their own trucks when the Navy will pay like fucking four times what it is worth, Dude!
mr moe good crony find. buy our chicken support our sailors.
I often wonder about that myself, B Moe. What’s the ranking of the various efficiencies after the competing technologies each reach a mature level?
Probably goes nuclear, hydrogen, natural gas, ?, ?, ?. No idea though.
That’s why we’re so lucky that the stimulus built 200 new nuclear reactors.
I think the biofuels produced locally from leftovers in animal processing have a chance to work at a reasonable cost as the big cost for biofuels in general is transporting the bulk material. If you put the biofuel plant next to the chicken processing plant, transportation costs can be reduced significantly.
Plus, animal fat is going to have a much higher energy density than corn.
However, it will always be a very minor product overall in the energy market. Oil will still be the winner. For the Navy, it would make a lot more sense to have its own oil fields ready to produce as needed, or have its own reserves somewhere ready to use.
By the way, we need to build a lot more nuclear reactors. A boatload would be a good start. A metric shit-ton would be better.
Cranky’s post at 5:56 has me picturing aircraft carriers with chicken coops hanging all over the place and a refinery stack by the tower.
It’s even stranger when the retards in control are criminal retards like the Obama Bunch.
There’s gotta be a scurvy joke here somewhere.
My instructions from Revolutionary War soldiers usually comes in through the fillings in my molars.
That being said, aren’t we supposed to be connecting the dots? At this point it would probably look like a spider web done on acid. But there are just too many data points to trust anything that comes out of this administration.
And a Friday night doc dump just begs for conspiracy theories.
That being said, aren’t we supposed to be connecting the dots? At this point it would probably look like a spider web done on acid.
Or a dollar sign, like usual.
One more coincidental data point: http://ncronline.org/blogs/ncr-today/jp-morgan-chase-closes-vatican-bank-account
In the days of wooden ships and iron men the Navy operated entirely on wind power. Some would probably prefer that we returned to those days….
Navy experiments with new “Oars and Red Bull(TM)” power plant system. News at 11:00.
I never worried much about the thousands of nukes in the U.S. arsenal.
I knew we’d never use them. First.
A line of statute on the books is just words on paper until with a guy with a gun makes you obey.
Obama’s got a lot of guns. And he’s got what precedent tells us is a law of the land that put the decision on what is, or is not, a “national emergency” in his hands. And further gives him sweeping authority – dictatorial in nature – to act.
Fundamental transformation.
Nobody ever fucking reads what the bad guys wrote they would do, now do they?
It’s hard to be surprised if you read history. Honestly surprised, at least.
Aircraft carriers are already nuclear, as are submarines. Still, they could carry the chickens and produce the fuel to power their group ships.
Still, they could carry the chickens and produce the fuel to power their group ships.
Please tell me you did not just set up a ‘chicken tenders’ joke. Please.
I didn’t even think of that, Squid.
So, I think what we’re looking at in this EO is the groundwork for an arrangement much like what was in place during WWII, with nearly all resources and production capacity directed by the federal government toward a total war effort.
Revisions would be necessary to reflect federal power grabs during the interim between iterations. For example, Nixon, say, would have had no reason to update it to reflect that all doctors operate under the direction of HHS (HEW at that time, I believe) because the feds hadn’t yet usurped that part of the economy.
Doesn’t mean I trust Obama not to invoke it or to exercise and/or relinquish the power promptly were it invoked.