What is Orthodox Republicanism?

What does Republicanism mean?  This is the burning question for the Republican Party today with
Steve Bannon declaring war on his party enemies and the likes of Senators Flake and Corker opting to resign because they are outcasts likely unable to win their nominations in the party that Donald Trump remade.  And the answer will have fateful consequences not only for the GOP but the health of the American Democracy.  Contrary to the hopes of Democrats, there needs to be a responsible Republican Party that has a soul.
The Republican Party today is not the party of Lincoln and civil rights.  It is not the environmental party of Teddy Roosevelt, and it is not the party of Nelson Rockefeller and Jacob Javits from New York where I grew up.  Back then it would not have been farfetched to argue of the two New York senators–Republican Javits and Democrat Bobby Kennedy–the former was more liberal.  Nor is this the Republican Party of Ronald Reagan that worked across the aisle with Tip O’Neill, or the Party of George H.W. Bush who signed the American with Disabilities Act,  supported tax increases because it was in interest of the nation, and forged international alliances to  liberate Kuwait.  And it is not the Party of George W. Bush who supported immigration reform.
The Republican Party today is an ugly, selfish, and mean party.  It is a Party premised on the  anger, resentment, intolerance, and nastiness.  It is a party that does not want government to work, one that tolerates a president referring to women as pussy, immigrants as rapists, Muslims as terrorists.  It is a party that looks at someone like Jeff Flake–a pro free trade, internationalist who believes in a strong US international presence while also endorsing tax cuts and small government –as a RINO (Republican in Name Only). 
The same is true of Bob Corker, Susan Collins, and John McCain.  All traditional Republicans, but none of them find a place in the Party of Bannon and Trump.  It is not enough to support some principles of Republicanism, it is an ideological purity test demanding 100% loyalty. Bannon and Trump have become the Grand Inquisitor and Joe McCarthy of the Republican Party, and when Flake or Corker step into the role of Joseph Welch, asking of them “Have You No Sense of Decency,?" few within the Republican Party are willing to support them.  The new orthodoxy overrides principle, integrity, and what is right for the party and the county.
George Washington warned in his farewell address of the dangers of parties, seeing in them how they encouraged “the community with ill-founded jealousies and false alarms, [and] kindles the animosity of one part against another.  He thought we would be better as a nation without them.  Perhaps, but they day is long since past.  Parties are a reality and the task as political scientists such as E.E. Schattschneider said, is to make them responsible.  Parties make governance possible, they make American democracy possible by mobilizing voters, checking the opposition, and articulating a vision for the public good.
The Republican Party of Bannon and Trump does not do that.  It is a party of nihilism, consuming itself and American democracy with it.  There is a need for a Republican Party to speak for the Constitution, Bill of Rights, free speech, and freedom of religion.  It is a party that needs to respect the right of people to kneel at football games, to acknowledge that scientific facts and that alternative facts are not facts but lies.  It needs to say that conspiring with a foreign government to  influence an election is treason, that conflating personal wealth and self-interest with the public good is wrong, and that remaining silent in the hope that it will advance a party agenda is wrong. 
There was time in my lifetime during Watergate when the likes of Howard Baker, William Ruckelhaus, and Elliot Richardson put the good of the nation ahead of party and did the right thing in opposing  Richard Nixon.  They were heroes, and Republicans, and no one tried to oust or outcast them.  The Republican Party needs people like this, as does the country, and we need a Republican Party and an American public that will support people like this.  This is what orthodox Republicanism once was, and it needs to be that again.

Law, Ethics, and Syria: What Should We Do?

Law matters.  But the law is the not sum total of what matters when it comes to asking the question “What is the right thing to do?,” be that in our personal or professional lives.  Often obedience to the law–asking if doing something is legal–is the starting point for evaluating conduct.  But there is a long lineage of people from St. Augustine, Henry David Thoreau, to Martin Luther King, Jr. Who would point out that unjust laws are not morally binding and that in some cases disobeying them is the right thing to do.  Conversely, mere conformity to the letter of the law also does not necessarily mean one is acting ethically or that following the rule is the right thing to do. More is required.  This is also true when it come to the decision by President Obama to take military action against Syria.

            Syria’s use of chemical weapons raises problems for the United States.  Specifically, any use of force raises three questions: 1) presidential authority to act; 2) what is distinct about Syria; and 3) what is the end game for the US?   All three of the questions have to be answered satisfactorily before the United States takes any action.

           

Presidential Authority to Act

            Obama wants congressional approval to use force, but he still had not ruled out doing something absent their acquiescence. What constitutional authority does President Obama have to justify military action in Syria? This is not clear.  Domestically, the two sources of legal authority he can reference would be either the Commander-in-Chief clause of Article II of the Constitution, or the 1973 War Powers Act.

            It is not clear how the Commander-in-Chief clause supports this action. The constitutional framers intended for Congress to be the dominant branch when it came to military and perhaps foreign affairs. Article I textually commits to Congress the power to declare war along with a host of other powers related to the military. Here Congress has not declared war and it is unlike after 9-11 when Congress did enact the Authorization to Use Military Force that gave Bush the authority (arguably) to deploy troops in Afghanistan. At least Bush had some legal authority to wage a war on terrorism, no matter how tenuous.

            If Obama is relying on his Commander-in-Chief powers, it is hard to see how they come in. Syria  has not attacked the US, it is not threatening vital interests, and it is not otherwise doing something that directly conflicts with American national security. Instead, to contend that the Commander-in-Chief clause gives Obama unilateral authority to deploy these troops is no different or better than Bush era assertions by advisors such as John Yoo and others that the president had inherent constitutional authority to act. He does not.

            There is no extra-constitutional authority for presidents to act. This was supposedly another issue or lesson learned from Vietnam; presidents should not unilaterally drag the country into war.  LBJ and then Nixon abused their presidential powers when it came to Vietnam.  Disputes over presidential power to deploy troops were supposedly addressed by the War Powers Act in 1973. It placed limits on presidential power to deploy troops for limited purposes, subject to consultation with and notification to Congress that the Act was being invoked. Here again Obama is not invoking the Act in asking Congress to approve.  However, overall, there seems little authority for the president to act here absent congressional approval.

What is distinct about Syria?

            But even if Congress does approve, the second problem is what is distinct about Syria? Assume for now that Obama has the constitutional authority to act. Why Syria and why not Kim Jong-Il in North Korea, Iran, Sudan, or Zimbabwe?  In all of these countries we have repressive dictators or regimes abusing the rights of their people.  Should the US use force in all of these countries to oust dictators?  If mere oppression were the justification for action the US would be busy around the world acting.  Moreover, if mere oppression were enough justification, the US should have ousted Assad years ago.  Something more is required.

            First at the international level is the authority to act.  Article II, section 7 of the United Nations Charter declares: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction.”  Is not what is happening in Syria a domestic matter and none of our business?  Maybe, but the legal case for it has to be made.  The UN allows for this under international law through resolutions and Security Council action.  With a Russian veto, chances for this type of authorization are nil.  Obama appears to want to justify intervention under international law that bans the use of chemical weapons or by invoking some other principles of humanitarianism, but again the justification is not obvious.

            But even if the United States can find justification under international law to act, there is still another question:  Why should the US act, potentially alone?  Again, Syria is less of a threat to the US than Iran and Korea. From a strategic point of view it is hard to justify intervention. Korea and Zimbabwe are equally as brutal regimes. Why not them? Perhaps the difference here is that there is a popular movement to oust him and that is the reason why we are acting? Maybe the issue is about prospects of success in ousting him? All of these are possible answers yet it is difficult to see a reason or argument that principally distinguishes Syria from acting in the other countries, unless of course it is the use of chemical weapons.  Similar reasons about weapons of mass destruction led Bush into Iraq and why the US is viewed as a hypocrite when it comes to the country supporting or placating some repressive regimes.

What is the End game?

            The final troubling issue is the end game for Obama. What are our goals and what are we really trying to accomplish? Is it  simply to punish Assad for using chemical weapons?  Is it because he has killed 50,000 of his people?  Do we hope that military action will oust him and if so, what are we prepared to do next?   What is the definition of success and what plans does the country have to exit from intervention?  These are all important questions that need to be asked.  Even if the US merely does drone strikes or other limited action, the US needs to be clear regarding what it hopes to accomplish and prepared for what might be the result?

            During the first Gulf War General Powell espoused a doctrine that has been named after him.  The Powell doctrine, supposedly based on what we learned from Vietnam, said that US military action needed to be evaluated by asking questions regarding clearly defining what national interests are at stake, whether the goals of intervention are clear, is there international support for action, what are the alternatives and risks to military action, and then determining what the end game and exit strategies are.  Using the Powell Doctrine to evaluate the comments by Secretary of State Kerry and Obama recently, it is not clear that they have adequately answered this question.

            What to do with Syria is a difficult question.  But it is a terrific case study in decision making and in demonstrating how questions about legality are only the starting point in determining what is the right thing to do.

Obama's Paradoxical Presidency

Note:  This blog was originally published in the August 8, 2013 edition of Politics in Minnesota.

Barack Obama’s presidency is a paradox.  At no point has a president been so powerful yet so weak.  He is a brilliant orator, capable of inspiring millions, but horrible at influencing Congress. His first term legislative record was a laundry list of major accomplishments, his second term is already over.  He wanted to be a post-partisan, post-racial president, but all the polls suggest he is one of the most polarizing modern presidents.  How do we explain the president that Barack Obama became, and understand the one that many hoped he would be but failed to achieve?

            First, consider the president that everyone thought Obama would be.  He was to be the candidate of change.  He was to be the president of peace, the anti-Bush who would end the wars in Iraq and Afghanistan.  He would end torture, close Guantanamo Bay, and bring peace to the Middle East.  He would do that while consulting with allies and not going it alone.  He was also to be the president of universal health care, more alternative energies, and fixing the economy in a way that would produce more good paying jobs in the green economy of the future. 

            Obama promised a lot, and he delivered, sort of.  We sort of have universal health care with Obamacare, yet it is not clear how well it will work, whether it will save money, or really lead to a change in American health.  The economy is sort of on the mends.  Millions of new jobs have been created, but we are still years from recovering all the losses from 2008.  Wall Street has rebounded, but the gap between the rich and is at record levels.  Home values have returned for many, but for millions others their mortgages are still underwater.  Corporations have record profits, but salaries and family incomes  are flat or lower than they were before he became president.  We are officially out of Iraq and close to the same with Afghanistan, but one can hardly say that mission was really accomplished with either.  The list could go on.  Obama’s accomplishments are significant, but so many of them since incomplete or fragile.

            Conversely, who would have ever thought Obama would have been the president to deport more individuals than any other president in history.  He has prosecuted more leaks than any other president. He asserted the right to use drones to kill Americans, and he vigorously defends a vast network of NSA spying on Americans.  He bailed out the banks but did little for homeowners.  Dodd-Frank restructured Wall Street but not a lot for Main Street. His green energy economy went nowhere and most people expect will he endorse the Keystone Pipeline.  This is on the heels of him wanting to push more nuclear and “clean coal” technology.  It now even looks like he will place Larry Summers instead of Janet Yellen at the head of the Federal Reserve Board.

            To his defenders many argue that Obama is still cleaning up Bush’s mess.  To liberals he has done no more than warm over Bush era policies.  To conservatives, he is a detested socialist.  To watch Obama now one gets the sense that he has given up on his presidency and that his second term is already over.  He still offers lofty rhetoric about the economy and jobs but no one thinks he can deliver because of Republicans in Congress.  True they have fought him all the way but Obama has yet to learn how to negotiate with them.  He does not scare them and he cannot seem to beat a dysfunctional and unpopular Republican Party that has fallen out of the ideological mainstream for most Americans.  And now it is also clear that eight months into his second term, he has lost the support of his own party.  Democrats want Yellen not Summers, they are critical of the NSA but Obama will not budge.  His party does not want to negotiate away Social Security and other entitlement programs, Obama seems almost eager to put them on the table to get a grand budget deal. Obama looks increasingly irrelevant politically. 

            So how did it all happen? Why has Obama always cast his eyes to the side when he looks history or destiny in the eye?  Richard Neustadt once said that the power of the presidency is the power to persuade.  This power is a combination of many things, including party support, electoral  majorities, public opinion, and a host of other factors.  But the presidency is more than the formal powers of Article II of the Constitution.  It is also a product of the person who is he president.  More particularly, presidencies are defined in part by the character of the person who is president.

            In  Presidential Character, political scientist James David Barber sought to construct a means to describe and categorize presidents.  The basic problem we all face is to make an accurate guess to what type of president a candidate will be.  According to Barber, a person's personality, psychology, or "character" shapes performance and thus knowing something about a president's character will tell us about possible future performance.  In effect, the psychological character of the president melds with the formal office of the presidency to determine governing style.

            What types of presidential characters are there?  Barber thinks we can make that assessment along two dimensions.  There is activity-passivity:  How much energy will a person invest in the Presidency?  Second there is a positive-negative affect:  How does one feel about what one does? Thus, these two dimensions allow for four different types of presidents each having specific examples.   Early in his presidency Obama was an active-positive.  This is the type of president John Kennedy, Franklin Roosevelt, and Thomas Jefferson were. These are presidents as doers–they are results-orientated, flexible, and demonstrate a sense of growth and happiness in their job.  This is less the Obama we now see.  He displays more the rigidity of active-negative presidents such as Richard Nixon, or the withdrawn passive-negative dimension of Calvin Coolidge, or maybe even the passive-positive of Warren Harding, a president unwilling or unable to act or make decisions.

            It is not clear how to classify the current Obama as president but he certainly is not the active-positive one he once was.  Moreover, his lack of legislative and administrative experience prior to being president is showing, and his refusal to consult but a handful or close advisors has prevented him from changing his governing style.  Whatever energy or character he does have, the clock of his presidency continues to tick, pushing him further and further into a second term lame duck status.  Obama’s legacy now is almost beyond his control and absent a surprise, he will leave office a paradox for what he did, could have done, and what he became as president.

Obama's Constitution

            Barack Obama’s constitutionalism is not quite what anyone would have expected.  Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.

            Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights.  One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda.  As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.

            Such expectations were nurtured by presidential candidate Obama.  He sharply criticized the Bush administration for its support of torture and disregard for international law.  He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor.  Yet Obama has not turned out to be a constitutional liberal.

            To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against.  He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility.  But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees.  But even accepting both as excuses, Obama’s constitutionalism is surprising.

            The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program.  Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions  about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture.  Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.

            His administration justifies the killing of American citizens without proof of guilt in court.  There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions.  His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment.  His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment.  And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.

            But additionally the Obama administration has rode roughshod over many other parts of the Constitution.  Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration?  Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?

            But his constitutional contempt is matched by timidity.  Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject.  It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement.  The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law.  Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.

            Even with the Affordable Care Act–his signature issue–he has failed to act boldly.  His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected.   In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill.  It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.

            Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.

            Obama’s Constitution is hardly liberal.  It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act.  It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy.  It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.

The Obama Judicial Revolution that Wasn't

Obama’s legacy is largely written because second presidential terms are usually disappointing.  But in assessing his legacy, one needs to look at how successful Obama  has been in remaking the federal courts with his appointees.  By that score he has squandered an Obama judicial revolution.

            Second term presidents including Obama,  confront declining political capital.  Obama is already a lame duck, facing a hostile Republican Congress and a Senate lacking a filibuster-proof Democratic majority.  A president’s party generally lose seats in the second term midterm elections and in 2014 Democrats will have to defend 20 seats compared to 13 for Republicans.  Obama’s agenda is packed with guns, immigration, global warming, and fiscal and economic issues.  The president has too much too do, too little time, and too little support.

            One area where presidents have a chance to leave a mark beyond their term is with their judges.  With appointments to the bench, federal judges that include district and appellate courts and justices to the Supreme Court, can influence the fate of a president’s agenda decades after he leaves office.   The federal courts have become a powerful third branch of the federal government, called upon to determine the constitutionality of many issues, and resolve controversies ranging from who will be elected president in 2000 to the fate of Obamacare.

            Franklin Roosevelt’s New Deal was held up by a hostile Supreme Court and it was not until after he attempted to pack it in 1937 that the president got his way and many of his reforms were upheld.  Eisenhower, in reflecting on his presidency, conceded that he made two mistakes, Earl Warren and William Brennan, and they were both sitting on the Supreme Court.  Court appointments matter.  There is significant evidence that federal judicial appointments  generally decide consistent with the philosophies of the presidents who appointment them. Warren and  Brennan notwithstanding, surprises are the exception to the rule.

            President Clinton filled 370 judgeships during his presidency, including two Supreme Court Justices, 62 for the Court of Appeals and 306 at the district Court level.  By the time he left office in 2000 nearly 44% of the judges were Clinton appointees. George Bush was almost as successful, with 2 Supreme Court, 59 Court of Appeals, and 261 district court appointments.  His 322 appointments constituted  37% of federal judges.

            Obama’s judicial record so far is weak. Unlike Ronald Reagan and his staff who took office with a clear plan to locate and fill judicial appointments quickly, Obama was slow in grasping the importance of judicial selection.  This was especially odd being a former law professor.  He was often criticized for being slow in nominating judges, even when the Senate had a filibuster-proof majority.  After the 2010 elections judicial confirmation slowed to a trickle as Republicans held  up confirmations in hopes of retaking the White House in 2012.

            As of the start of Obama’s second term he has placed 173 judges on the federal bench–approximately 20% of the total.  That includes two Supreme Court Justices, 30 for the court of appeals, and 141 district court judges.  Few are real liberals. There are currently 87 vacancies at the court of appeals and  district court levels.  Obama is unlikely to achieve the numbers that Clinton had, let alone Bush, even if he fills the current vacancies and those anticipated.  He will fined it increasingly more difficult to  secure Senate confirmation of his nominees even if the Democrats hold the chamber, and if Republicans take over in 2014, expect little or no action on them in the last two years of his term.  Obama has perhaps 18 months left to make his mark on the federal courts, and the crowded agenda  his second inaugural speech pronounced suggests that judicial nominations are not high on his list.

            Yes Obama has replaced Justices Souter and Stevens with Sotomayor and Kagan, but that has not shifted the balance of the Supreme Court.  Obama may get a chance to replace one or two more Justices in his second term, but it is not clear that the conservatives on the bench will be leaving. He may replace Ginsburg and perhaps Breyer.  Do not expect Scalia or Thomas to step down in the next four years.  If Kennedy, a swing vote on many issues, steps down, that may be Obama’s best chance to alter the Court’s direction.  But no guarantee here.

            Obama has squandered a chance to remake the federal courts. One need only look to the recent decision striking down his recess appointments as proof of that.  The three judges were appointed by Reagan , George W. Bush, and George H.W.  Bush. Obama’s  major pyrrhic victory on the Supreme Court, upholding Obamacare, came courtesy of Bush appointee Chief Justice Roberts in a 5-4 vote that also drew future limits to the use of the Commerce clause to sustain federal laws.  This June Reagan appointee Justice Kennedy, a Reagan appointee, will probably lead a 5-4 majority striking down some bans on same-sex marriage.  But in terms of Obama redoing the federal courts, he has underperformed on perhaps his most important task.