NATO efforts to help rebels oust Qaddafi in Libya have pushed events in Egypt off the front page of American papers for the moment, but Egyptians are only now beginning to do the heavy lifting of their revolution. It took enormous courage and organizational skill for the protesters of Tahrir Square to succeed in their efforts to remove Hosni Mubarak. All that and more will be necessary for them to stabilize that accomplishment so it reaps long-term rewards.
As the Egyptian news weekly al-Ahram reports, one central problem is how to resolve the fraught relationship between the current ruling organization -- calling it a government seems a little premature -- and the protest movement which swept it into power. The military officers in power have promised to end the thirty-year-old "emergency" regime which allowed so many abuses under Mubarak, but only in some vague future "before the September elections." To take the problem further, the officers recently outlawed all protests, making the organization of such a thing punishable by a year in prison.
Of course, the protests of last month were illegal, too. For those in Tahrir Square, then, the question arises: does such a law have any legitimacy? Does a loyal Egyptian citizen have any obligation to the current regime when it imposes such restrictions?
Al-Ahram says only that the laws "raised some eyebrows." I wonder whether other body parts might be raised soon.
Thursday, March 31, 2011
Friday, March 25, 2011
Obama and Executive Power
Supported by a UN resolution and urged on by Britain and France, President Obama authorized US missile attacks on Libya this week. After an initial surge of success, rebel forces fell back before a vicious and well-organized attack from the Libyan army, which remains loyal to Qaddafi. Obama said "The people of Libya must be protected, and in the absence of an immediate end to the violence against civilians our coalition is prepared to act, and to act with urgency." The initial plan, though, was to limit outside military intervention to the enforcement of a no-fly zone, but that idea gave way to more aggressive tactics for reasons never made entirely clear.
None of this is constitutional, of course. Far from being consulted on the question of US military involvement, Congress is on vacation this week and was not asked to return to Washington. Qadaffi poses no immediate threat to American security, and has been dormant as an indirect threat for at least fifteen years before two weeks ago. As a result, Obama was required by Article I section 8 and Article II section 2 to ask for Congressional authorization before he engaged US forces, even in the form of pilots.
The situation poses interesting political challenges. Democrats who opposed the invasion of Iraq on the grounds that it was a power grab now must consider their own integrity in this matter. To his credit, Senator Jim Webb of Virginia, for example, has made it clear that he does not like the president's behavior. On MSNBC the other day, he said
In contrast, Republicans would prefer to use the sitiuation against Obama, but are having a hard time figuring out how to stand behind the bizarre defense of executive power form people like John Yoo while opposing this action. (See The National Review, especially.)
I don't know whether outside military intervention is a good idea here; I don't want to see a crazy man like Qaddafi kill his own people, but the fact is that they picked a fight and they may have to finish it on their own. I do know that if the US is going to be involved, Congress has to have a role in the decision.
None of this is constitutional, of course. Far from being consulted on the question of US military involvement, Congress is on vacation this week and was not asked to return to Washington. Qadaffi poses no immediate threat to American security, and has been dormant as an indirect threat for at least fifteen years before two weeks ago. As a result, Obama was required by Article I section 8 and Article II section 2 to ask for Congressional authorization before he engaged US forces, even in the form of pilots.
The situation poses interesting political challenges. Democrats who opposed the invasion of Iraq on the grounds that it was a power grab now must consider their own integrity in this matter. To his credit, Senator Jim Webb of Virginia, for example, has made it clear that he does not like the president's behavior. On MSNBC the other day, he said
We have a military operation that's been put into play, but we do not have a clear diplomatic policy or a clear statement of foreign policy that is accompanying this military operation... We know we don't like the Gadhafi regime, but we do not have a clear picture of who the opposition movement really is. I’ve asked this repeatedly to State Department including Secretary Clinton in the last couple of weeks.
In contrast, Republicans would prefer to use the sitiuation against Obama, but are having a hard time figuring out how to stand behind the bizarre defense of executive power form people like John Yoo while opposing this action. (See The National Review, especially.)
I don't know whether outside military intervention is a good idea here; I don't want to see a crazy man like Qaddafi kill his own people, but the fact is that they picked a fight and they may have to finish it on their own. I do know that if the US is going to be involved, Congress has to have a role in the decision.
Friday, March 18, 2011
The Supreme Court's Credibilty Gap
Three days ago, the New York Times published an editorial entitled "The Court's Recusal Problem." The editors pointed out that justices do not have clear rules for when they recuse themseleves from particular cases, and that the result frequently is an appearance of impropriety, if not actual impropriety. Other federal judges must adhere to (often controversial) rules imposed by Congress, but Supreme Court justices are expected to set and meet their own standards.
Judges don't like rigid rules for recusal, for good reason. In the first place, they can limit judicial independence, placing judges at the mercy of the legislature for the very basis of their power -- jurisdiction. One concern is that strictly-applied rules might encourage judge shopping by attorneys, who would look for legalistic reasons to call forrecusal of judes they don't like. Such rules also imply that judges are incapable of being objective when they have minor involvement with the people coming before them, and judges pride themselves on their objectivity above all else.
But that's the rub. The power of the courts relies almost entirely on the perception (and the reality, of course) of their impartiality. If people believe that judges reach conclusions based on their personal predilections rather than on professional application of principle and law, no one has any reason to obey the courts. Relying on justices to judge their own cases, as it were, undermines that perception (and its corresponding reality.)
For example, it did Justice Scalia and the Court no good when he went duck hunting with Vice President Cheney just before Scalia ruled on a case in which Cheney was a litigant. Of course justices have to be free to have personal relationships with politicians. After all, Scalia lives in Washington and can hardly make himself a recluse. To be as cozy as all that, however, is a problem. Justice Thomas has all kinds of simililar problems because his wife is a conservative lobbyist who argues in public for many of the people Thomas supports in his rulings.
Recusal is therefore just a part of a much bigger problem. The Court's rulings in Bush v. Gore and Citizens United look horrible. Despite all the harrumphing about stare decisis and judicial conservativism, Scalia, Thomas and Roberts -- as well as former Chief Renquist -- have been willing to pitch all precedent in opinions that look suspiciously political. If we trusted the individual members of the Court to be more impartial, we could live with the practice of allowing them to apply their own judgment in matters of recusal. Since we don't trust them in the broader sense, we don't trsut them in the narrower.
That's a big deal. It gets to the very system of government and rule of law on which the Court depends entirely. It would serve us all, and not least the members of the Court, if they would do more to earn our trust
Judges don't like rigid rules for recusal, for good reason. In the first place, they can limit judicial independence, placing judges at the mercy of the legislature for the very basis of their power -- jurisdiction. One concern is that strictly-applied rules might encourage judge shopping by attorneys, who would look for legalistic reasons to call forrecusal of judes they don't like. Such rules also imply that judges are incapable of being objective when they have minor involvement with the people coming before them, and judges pride themselves on their objectivity above all else.
But that's the rub. The power of the courts relies almost entirely on the perception (and the reality, of course) of their impartiality. If people believe that judges reach conclusions based on their personal predilections rather than on professional application of principle and law, no one has any reason to obey the courts. Relying on justices to judge their own cases, as it were, undermines that perception (and its corresponding reality.)
For example, it did Justice Scalia and the Court no good when he went duck hunting with Vice President Cheney just before Scalia ruled on a case in which Cheney was a litigant. Of course justices have to be free to have personal relationships with politicians. After all, Scalia lives in Washington and can hardly make himself a recluse. To be as cozy as all that, however, is a problem. Justice Thomas has all kinds of simililar problems because his wife is a conservative lobbyist who argues in public for many of the people Thomas supports in his rulings.
Recusal is therefore just a part of a much bigger problem. The Court's rulings in Bush v. Gore and Citizens United look horrible. Despite all the harrumphing about stare decisis and judicial conservativism, Scalia, Thomas and Roberts -- as well as former Chief Renquist -- have been willing to pitch all precedent in opinions that look suspiciously political. If we trusted the individual members of the Court to be more impartial, we could live with the practice of allowing them to apply their own judgment in matters of recusal. Since we don't trust them in the broader sense, we don't trsut them in the narrower.
That's a big deal. It gets to the very system of government and rule of law on which the Court depends entirely. It would serve us all, and not least the members of the Court, if they would do more to earn our trust
Sunday, March 13, 2011
Who's Right in Wisconisn?
For weeks now, the Republican governor and the majority of the Wisconsin legislature have fulminated in frustration (if you'll pardon the alliteration), over the states Democrats' tactics in a battle over the right of state workers to bargain collectively. Governor Scott Walker says that state workers' unions, especially the teachers' union, costs the state too much in salaries and benefits. His intention has been to remove their right to negotiate as a union.
To combat this change, the Democratic legislators fled the state so there could be no legal quorum. State law requires that all major budget statutes be made in the presence of 60% of the full house -- the equivalent, in a sense, of the federal Senate's ludicrous filibuster rule. So they all went to Chicago, where they could not be compelled by Wisconsin state police to return to the chamber.
Walker's actions also triggered massive protests in Madison, as state workers and their supporters chanted opposition to the proposed law.
I happen to think Walker's idea is foolish. Like New Jersey Governor Christie, who is slashing the state budget there, Walker thinks that deficits are the root of all economic evil. In the long run, he may have a point, in that deficits can be destructive to the whole economy. But at the moment, when employment is down and interest rates are low, governments should be spending more, not less. The state sector could actually help revive the economy by putting cash into it. To reduce salaries and benefits -- particularly health care -- for so many people is ass-backwards.
But for the Democrats to flee the capital is an act of cowardice and silliness. They may not be able to win a vote, but to entirely subvert the system when they are supposed to be upholding it is an abdication of responsibility. What Walker is doing is mean and short-sighted, but it's not unconstitutional, and the Democrats have to stand and fight it, not run away.
To combat this change, the Democratic legislators fled the state so there could be no legal quorum. State law requires that all major budget statutes be made in the presence of 60% of the full house -- the equivalent, in a sense, of the federal Senate's ludicrous filibuster rule. So they all went to Chicago, where they could not be compelled by Wisconsin state police to return to the chamber.
Walker's actions also triggered massive protests in Madison, as state workers and their supporters chanted opposition to the proposed law.
I happen to think Walker's idea is foolish. Like New Jersey Governor Christie, who is slashing the state budget there, Walker thinks that deficits are the root of all economic evil. In the long run, he may have a point, in that deficits can be destructive to the whole economy. But at the moment, when employment is down and interest rates are low, governments should be spending more, not less. The state sector could actually help revive the economy by putting cash into it. To reduce salaries and benefits -- particularly health care -- for so many people is ass-backwards.
But for the Democrats to flee the capital is an act of cowardice and silliness. They may not be able to win a vote, but to entirely subvert the system when they are supposed to be upholding it is an abdication of responsibility. What Walker is doing is mean and short-sighted, but it's not unconstitutional, and the Democrats have to stand and fight it, not run away.
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