The State of the Union: Strong But Unsatisfactory

Later today, President Barack Obama will deliver his final State of the Union Address, filled with the typical pomp and circumstance. Following the pattern of virtually every speech given by each of his predecessors in the Modern Era, Obama will declare the State of our Union is “strong” or something to that effect. Democrats certainly will hope voters feel exactly that way in November as they try to retain the White House for a third straight term, a feat they have not accomplished since President Truman. However, the leading Republican candidate, Donald Trump, has a campaign slogan (Make America Great Again) that could be taken to imply the state of our union is not strong.

So cutting through the partisan spin; what really is the state of the union? I would argue it is strong but unsatisfactory. The fact is that America is the best positioned nation in the world, but there is still much work to be done. In this sense, both sides have valid points to be made; our situation is not necessarily as dire as republicans campaigning suggest while there are greater risks to our future than the President has conceded.

To be frank, the fact we are strong is not really an accomplishment for the President. While we were in deep recession in 2009 when Obama assumed Office, America was still the strongest nation on earth. While our banking system had been crippled by the Housing Crisis and Lehman failure, requiring the Bush Administration to launch widespread bailouts to avert Depression, the worst of the financial crisis had passed by January 20, 2009, and depression was off the table. America was still the center of innovation with the best technology firms in the world residing here, mainly in California. We were the clear global hegemon economically and militarily.

Today, I would argue that last sentence still rings true. Yes, GDP growth has been undeniably sluggish, but our economy is far larger than any other, and it adds far more value than export-driven China, which has run into significant problems of its own of late. The official unemployment rate is down to 5%, and even if we adjust for some of the cyclical weakness in the labor force participant rate, unemployment would be 6.5-7%, which is neither great nor horrible. Yes, China is saber-rattling in the South China Sea, and Putin has caused problems in Syria and Eastern Europe, but our military and naval wherewithal is without rival.

China’s military might is entirely regional, and Putin lacks the economic power to exert influence much beyond his own borders and Syria. Given his nuclear arsenal, we cannot force him to do anything, but he can’t force other nations to do much either. He and China are undoubtedly challenging the U.S. Security Order with limited successes, but the fact remains, there is nary a region in the world where we are not a key (if not the key) player. America is the lone indispensable nation on the face of the earth. The setbacks and loss of influence in the Middle East, parts of Eastern Europe, and select spots in South Asia are not markers of inevitable decline but rather missteps quickly reversible under new, more assertive American leadership.

Consider the following questions. Is there a nation you would rather be today than the United States? Would you trade America’s future for that of another nation? Is there a more dynamic economy on earth? Would you swap our military power for that of another country? Is there a nation where you can enjoy more political freedoms or economic potential than here?

Chances are you would answer “no” to all (or at least most) of those questions. How then, can one say the state of our union is anything but strong? Again, the same was true in 2008, and it is a testament to just how well positioned America is and how dynamic the American people are that these statements are almost taken as a given. Being “strong” is really not an accomplishment of the President; the accomplishment is not torpedoing that strength, something almost no President could manage to do. That is why the American people rightly demand more than a strong state of the union.

Now, Obama has some indisputable accomplishments. The economy is stronger than in 2008, but it is not strong enough. GDP growth of around 2-2.5% has been positive but not spectacular. Real median income is lower than in 2000; the typical worker has not felt this recovery. This has been a problem for 15 years and is a serious challenge neither party has done a good job of addressing. We need to make structural reforms, restructure our tax code, and improve education to build a stronger economy from the bottom-up to grease the tracks of upward mobility. A poverty rate of 15% continues to be a stain on this country, and our programs need to focus more on lifting people from poverty rather than simply making poverty more comfortable. We need to reform, and yes cut, entitlements like Medicare and Social Security to ensure they will be solvent for those of us who really need them in our later years. Is our economy strong? Yes. Satisfactory? No.

Beyond economics, we have unsatisfactory progress in other areas. Race relations are not where they should be, and in too many communities, police-community (particularly in black precincts) relations are not where they should be. Many parties (from a media that generalizes every story to bad cops to self-aggrandizing community leaders) share the blame, but we need to take steps in local communities to rebuild trust. Gun violence is too high, and this nation does not handle mental illness as well as it could. There are no easy answers, and the gun issue is too often politicized. The scourge of violence is real though. Is our culture strong? Yes. Satisfactory? No.

In foreign affairs, we do not have a clear strategy to permanently roll back ISIS from Iraq and Syria and its outposts in Libya and elsewhere, though our military certainly has the capability to defeat the terrorist organization. We have ceded influence to Iran in the Middle East. Our Eastern European allies are on edge as NATO seems ambivalent about a bellicose Putin, and we are not investing sufficiently in a 21st century Navy that can guarantee freedom of navigation in the South China Sea. We have the tools to address these international challenges; it is just a matter of gathering the will and thinking in years not weeks when budgeting and planning. Is our international standing strong? Yes. Satisfactory? No.

The President is right to say the state of our union is strong, and America continues to be the world’s best positioned nation—the world’s only superpower. That said, republicans are right to say we can do a lot to make America even stronger and build an economy that works better for everyday citizens. GOP candidates need to refine their rhetoric and avoid doom and gloom, which is not in sync with reality.

The genius of America is that we are always striving to make the country better because the pursuit of happiness and liberty is an unending effort. We are never satisfied with the state of the union. The GOP should offer clear contrasts with and criticisms of current policy but must maintain optimism. We are an optimistic people, and the optimism is entirely justified.

After all, how else should we feel about the strongest, most morally just nation on earth that serves as a beacon of hope for oppressed people the world over?

Advertisements

Trump Isn’t the Problem; He’s the Symptom

On Monday afternoon, Donald Trump announced a plan to ban Muslims from entering the United States, sending shockwaves through the political universe. The plan drew condemnation from most of the chattering class and his fellow candidates, though undoubtedly, many of his supporters were on board with the thrust of the plan, even though Trump suggested even American citizens, who happen to be Muslim, will be banned from re-entering the country. To be frank, this plan is abhorrent and repulsive to our constitutional ideals and merits unequivocal rejection. It is now easy to cast Trump as a problem (and for the GOP’s electoral chances in 2016, I would argue everyday he dominates the news cycle is problematic), but in reality, Trump is merely the symptom and not the problem itself.

Focusing on the plan first, it manages a perfect trifecta: unconstitutional, irrational, and unworkable. Working backwards, it is unworkable because it is absolutely impractical to know for certain whether or not a foreigner, seeking to enter the country as a tourist, is a Muslim. Are we going to ask for religious documentation? How do we know that a Radical Islamic terrorist isn’t merely pretending to be a Christian? Proving a negative (ie that one is not secretly a Muslim) is a dead end. Immigration would ground to a total halt. Plus in many of the most dangerous places, verification is an impossibility, hence the House plan to temporarily pause the Syrian refugee program.

It is also irrational because it misplaces the threat. Do we feel better about a businessman from Vancouver, who happens to be Muslim, visiting family in Seattle or a self-declared non-Muslim from Raqqa, Syria coming to the country? Under the religion-only test, the Syrian gets through and Canadian gets blocked. Does that seem rational? Clearly, radical Islam is a serious problem, but not all of Islam is. Any ban should focus on specific countries not religions.

Trump understands that Americans are scared, and he is right that we need to button-up our immigration policies; he just does so in an ineffective way. The fact is the threat to this country comes from ISIS-controlled territory in Iraq, Syria, and Libya or al-Qaeda controlled territory in Yemen and Afghanistan as well as portions of North Africa (or from Westerners who travelled and were trained in these places). The rational policy is tighten policies for all people, who either live in or have visited those countries, irrespective of their faith. That means suspending the refugee program until verification concerns noted by Obama’s FBI Director James Comey and others have been rectified. It also means altering our visa waiver program (the bipartisan Feinstein-Flake bill is a very good start) whereby a French citizen can go to Syria, develop skills to launch an attack, go back to France, and then come to the US without a visa to launch an attack here. Anyone visiting a hotbed of Islamic terror should be required to get a visa, irrespective of what country they are from and what their faith is. These policies would do far more to keep the bad guys out while avoiding the clear moral issues of blindly banning all Muslims.

Where the Trump plan totally goes off the rails is its treatment of US citizens who happen to be Muslim. Entering the country is a clear, fundamental right that Trump is depriving based on one’s religion without any probable cause. That is a blatant violation of the First Amendment right to freedom of religion. Attacking people for their faith is the domain of the left, as evidenced by their attacks on the Sisters of the Poor and Christian florists. Trump also suggested “closing” parts of the internet up. To those who would protest about freedom of speech in the first amendment, he would call them “foolish people.”

It is easy to defend constitutional rights during tranquil times, but the true mettle of one’s commitment to our ideals and freedoms shows during dire times. Trump is flunking that test, promising to shred the rights of Muslim citizens, functionally blockading them from leaving and banning them from returning, in the name of protection. Again, I ask are you more concerned about a Muslim American spending a weekend in Toronto or a detached young male who is a non-Muslim American (unaffiliated with an aid group for argument’s sake) in Syria. Freedom of religion is the quintessential American right, and we as conservatives have fought hard to protect it. To quote President Ronald Reagan from 1984: “government should not make it more difficult for Christians, Jews, Muslims, or other believing people to practice their faith.” Trump would do exactly that, and that is deplorable.

It is the nature of mankind to trade some freedoms for the hopes of safety, a natural proclivity Trump is playing to. Charlatans in the past like Senator Joe McCarthy fed off this fear. Democrats are currently using this fear in an effort to strip due process rights away from some looking to buy guns. A low point in this nation’s history was the internment of Japanese citizens where our fear led us to strip fellow citizens of their rights just because of who they were. Tragically, the Supreme Court upheld this policy in Korematsu v. US. I would point you to Justice Frank Murphy’s powerful dissent, in which he declared (emphasis my own), “But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”

America does not stoop to the level of our adversaries to beat them; our constitutional ideals are meaningless if we are so fickle and weak-kneed. We punish those who themselves commit wrong, not just belong to a certain group. We mustn’t repeat the tragedies of the past, by stripping rights in the supposed effort to protect ourselves. The inclination can be strong, but we must rise above it and keep our dignity for in the words of Alexis de Tocqueville, “America is great because she is good. If America ceases to be good, America will cease to be great.” We must stand united against this irrational, ineffectual, and unconstitutional policy.

Republicans and conservatives need to stand up to Trump’s divisive rhetoric. We have worked hard for years to make clear we are at war with Radical Islam but not all of Islam; in fact, we need moderate Muslim leaders themselves to stand against radicals. Trump’s plan lumps in all Muslims, threatening to undo this work. It also makes it easier for Democrats, hobbled by slavish political correctness, to avoid the term Radical Islam. Some on the left will also undoubtedly use the Trump plan to marginalize other GOP plans on refugees (like the House bill) as racist and not as the much needed reform they are.

After clearly going past the line (if he hadn’t already), it is now easy to dismiss Trump as the problem whereas he is really the symptom of a bigger problem. An increasing portion of the American public, particularly the working class, feels disenfranchised. The whole public is scared; prior to the San Bernardino terror attack, only 33% of Americans approved of Obama’s handling of ISIS, and only 38% approved of his handling of terrorism (from CNN-ORC). Obama’s consistent dismissal of ISIS has perhaps irreversibly damaged his credibility on national security. Trump’s tough talk is reassuring, even if the underlying policies aren’t feasible.

By the same token, the Republican Party has been an abject failure when it comes to explaining how its policies will help the working class, perhaps because much of its donors are corporatist Wall Streeters. In 2012, Mitt Romney lost voters whose top issue was having a President “who cares about people like me” by a stunning 81-18% margin. He never articulated how his policies would help ordinary, working Americans. At this point, no serious Republican Presidential contender, apart from Trump, have made a serious stride in this area (though Rubio has been trying harder than others, and hopefully, Paul Ryan will be a thought leader in this area). Perhaps recognizing this country has shed 5 million manufacturing jobs in 20 years, hurting millions of Americans, Trump has pledged to go after China and Mexico. Will these policies work? Not necessarily, but he at least provides the illusion of caring.

For many Americans, the past 20 years have been hard. While Clinton oversaw an economic expansion, manufacturing sputtered in his second term and his foreign policy left us less safe. While Bush’s ability to keep us safe after 9/11 is a tremendous accomplishment, his economic policy is mixed and he is not blameless for the financial crisis. Under Obama, our record has been tepid with inequality worsening while his dithering in the Middle East has left us more unsafe. The establishment and mainstream political parties have failed many Americans, and it is no wonder they have looked elsewhere, to someone out of the political class addressing their security and economic concerns, Donald Trump.

That is why the efforts to marginalize Trump based on his egregious rhetoric have failed spectacularly. The establishment is pointing out to voters what the establishment doesn’t like, but these voters have lost faith in the establishment because it has failed to deliver for them. The only way to attack Trump is to effectively argue he, one of the world’s greatest marketers, is selling a false bill of goods and won’t deliver. Someone must also step up and detail an economic vision that re-enfranchises a middle and working class that has been left behind.

Until then, we are destined to hear this self-aggrandizing candidate offer more unserious if not offensive plans while his poll numbers likely stay high. Trump’s anti-Muslim ban runs counter to the values we espouse and would be a dangerous degradation of constitutional rights. This has to be the impetus for other candidates to actually offer plans that will bring the middle and working classes into the fold. Unless someone else offers a compelling vision to these voters, the Trump phenomenon isn’t going away, no matter what he says.

Post Paris: Ashamed of our President

NB:

In the days following the heartbreaking, cold-blooded terror attacks in Paris, I have opted not to post anything in this forum because my thoughts have been very harsh (I feared overly so). In times of strong emotion, one can say something they later regret, and I did not want to fall into this trap, stretch my arguments, or offer commentary I would later wish I hadn’t. Instead, I have pored over my words to be as precise as possible and ruminated over my thoughts so that I could articulate exactly as I feel without writing anything regrettable. I am saying this upfront because what follows is (for me at least) a very strongly-worded condemnation of not only our President’s policies but of our President himself as well. Personal attacks are quickly tiresome and rarely justified, and I attempt to avoid them. However after several days of thought, I have come to a clear conclusion: President Obama’s policies are making us less safe, likely because he has succumbed to delusion over fact, and he is undermining our moral authority on the world stage, which is the gravest of offensives. I am ashamed of our President, words I have never previously uttered—these words still feel foreign to me. Below are my views on these two points (the first is policy-driven, the second point houses my more severe criticisms for those who prefer to skip ahead); I hope you consider reading this worth your while, regardless of whether you agree with my conclusions.

  1. President Obama is in a State of Delusion

Friday marked a clear turning point in the war against the Islamic State (ISIS). First, it bombed a Russian airliner, then it perpetrated a massive suicide attack outside Beirut, and it culminated with the devastating, extremely well-planned, coordinated attack in Paris Friday night (additionally, on Tuesday, Germany was forced to cancel a soccer match and concert in Hannover due to “concrete evidence” of an impending attack). ISIS has morphed from a powerful conventional ground force into a terrorist organization with al-Qaeda-like capacity to launch terrorist attacks in the Western world. This is a deeply disturbing development that makes ISIS a clear and present danger to the United States and our European allies.

We can engage in counterfactuals all day to assign the blame of ISIS’s rise. Many on the Left say if Bush hadn’t invaded Iraq, ISIS would not be here, and there is some truth in that point (not that Saddam was a saint). On the right, we can point to the fact Obama pigheadedly refused to negotiate a status of force agreement to ensure a stable transition because he wanted to win the political points associated with a rapid withdrawal. Fair-minded individuals can see that a lot of people share the blame for the conditions that allowed ISIS to form. However, the blame clearly shifts to Obama as the question turns to gains ISIS has made in terms of its capabilities and territory, taking control of half of Syria and Iraq, a landmass larger than at least 13 states.

Yet while speaking at the G-20 summit on Monday (after the Paris attacks), President Obama reiterated, “We haven’t underestimated their abilities.” Well, I hate to see how dangerous ISIS could be if we had underestimated them. While being dismissed as a JV-team, ISIS was racking up conquests in Ramadi, Fallujah, and Mosul while we seemingly assumed they had the staying power of the pet rock. Yet, here we are 18+ months later, ISIS has barely lost territory, likely has tens of million (probably north of $100 million) in the bank, and has developed the ability to launch outward attacks of terror. We are left with two possibilities: the President is a bald-faced liar, pretending his strategy is working to avoid losing political standing, or alternatively, he is in a state of delusion. Neither option is a flattering one.

Considering the Administration is doctoring its own intelligence reports to better fit their narrative, reality be damned, I find myself in the delusion camp. A further sign of delusion is that the Administration seems hell-bent on continuing with the same, failing strategy (if Obama were lying to the public, I like to think he would change things behind the scenes). Ben Rhodes, the deputy national security advisor, promises a mere “intensification” of the current strategy, comments Obama has since echoed. However, the underlying strategy is misguided.

Here is what Obama said hours before the Paris attacks: “Well, no, I don’t think they’re gaining strength. What is true is that from the start our goal has been first to contain, and we have contained them.” It is truly stunning how badly Obama could misread ISIS to think we had contained them. Even if, simply for the sake of argument, we concede that ISIS has been territorially contained, that is not success—it is an undeniable failure. Iraq has been ravaged, and what remains is quickly descending into an Iranian-proxy state. Similarly, Assad is merely a puppet for Iran and Russia. The status quo makes it easier for Iran, with Russia by its side, to become the regional hegemon, controlling the capitals of Iraq, Lebanon, Yemen, and Syria. That tilts the balance of power in the region decisively against us, and nuclear deal or not, it is impossible to label a Russia-Iran axis as friendly to democracy or our interests (I’ve written about this very issue weeks ago).

By definition, a policy of containment cedes its current territory to ISIS. In this territory, ISIS can train and build the capacity to launch outward attacks, for which it has just proven a stunning proficiency. Was the policy of “containing” al-Qaeda to Afghanistan particularly wise in the 1990s? Obviously, not. Controlling territory gave it free rein to plan and execute the 9/11 attack. Should it surprise anyone that giving ISIS the same set-up allowed it to execute attacks of its own? All the while, ISIS has built cash reserves, trained a revolving door of foreign fighters who have returned home to the West, and entrenched itself in its territory, ensuring removal will be costlier and bloodier than necessary. The policy of containment has been disastrous at every level. Obama has allowed Iran to gain influence, Assad to hang on, and ISIS to develop al-Qaeda-like capacity.

Not since Richard Nixon thought he could survive Watergate, has a President been so detached from reality. Nixon’s delusions put the nation in a constitutional crisis, and Obama’s threaten a security crisis. This crisis is even more acute for Europe, which has faced a tsunami of migrants entering without any vetting. Plus, its Schengen area policy of open borders has allowed these migrants to travel to any member state with minimal if any tracking, making it impossible for any government to know who is in their country at any given time. Each European nation is only as safe as the nation with the weakest borders, in this case Greece (austerity to deal with its budget debacle has crippled its ability to police borders and hold migrants). This migrant crisis, coupled with returned foreign fighters, exacerbates Europe’s security situation. Amazingly even though his own FBI director has expressed concerns about our vetting, Obama wants to accept at least 10,000 Syrian refugees and has suggested anyone who opposes him is a bigot (I would note the presumed head of Senate Democrats, Chuck Schumer, happens to have reservations about the current system). Obama has avoided policy debate and simply attacked the character of those who oppose him on this issue. The rational decision is to suspend the program for 3 months, ensure all vetting is done to acceptable standards, and then if concerns are dealt with, reopen the program.

For 18 months, we have watched ISIS grow like a cancer as Obama underestimated them and then employed a wrongheaded policy of containment. He touts launching 8,000 airstrikes, though this amounts to ~20/day, less than 1/5 the pace of Bill Clinton’s strikes in Serbia. On Monday, Obama had the gall to say, “We have been fully aware of the potential capabilities of them carrying out a terrorist attack. That’s precisely why we have been mounting a very aggressive strategy to go after them.” That is indisputably untrue; our bombing campaign has been anything but aggressive. These strikes barely manage to slow the advance of ISIS but do nothing to roll back its capacity. Our President’s policies are that of an inveterate invertebrate. He fecklessly dithers, leaving us in a situation where there are no easy options. In 2013, we should have enforced a no-fly zone and aided the Free Syrian Army in their fight against Assad, but Obama backed away from his own red-line.

Now, Russia is propping up Assad, moderate rebels have been squeezed from both sides, and ISIS has a serious foothold. A full no-fly zone risks confrontation with Putin. Considering how Obama backed down to Assad and Putin in Crimea, it is hard to see Putin taking our no-fly zone seriously. The temptation to partner with him is tantalizing, put aside the Assad question now, deal with ISIS, and then work on Assad. Aligning with Putin is like sleeping with the devil, fun at first not so good in the long run. If we deal with ISIS together, there is no pressure for Putin to support removing Assad (except to replace him with another crony—any crony will do!).

Instead, the US must significantly intensify our airstrikes, encourage rather than discourage France to invoke Article 5 of NATO, and build a Western coalition to systematically roll back ISIS. This means directly arming the Kurds, whom we have long-standing relations with and who are adept fighters. US troops embedded with the Kurds and FSA, Gulf partners providing ground troops, and NATO air-strikes and some ground troops can decisively roll back ISIS. Simultaneously, we need to create safe zones where refugees can go in Syria and Jordan, financed by the West, to keep refugees from flooding Europe. We, both Western and Muslim states, then need to maintain a presence to help new governments in Iraq and Syria build the institutions and structural strength to endure. This is a battle among civilizations, and we need to treat it as such.

The idea containment would ever work is a pure fallacy, perpetrated by an administration unable to deal with ISIS and unwilling to admit its mistakes. Despite all the evidence to the contrary, Obama continues to delude himself into believing the strategy is working. If we continue on this course, the threat ISIS poses to the Western world will only grow. I fear a world in which Paris is not an anomaly but the beginning of a long string of attacks, apparently we barely avoided another in Germany Tuesday. Simply containing ISIS allows them more time and space to develop their capabilities and export there terror. We need to get tough now; to do otherwise is to gamble the security of our homeland and that of our allies.

  1. President Obama Has Shamed this Nation

This (briefer) section pivots away from my policy critique and focuses instead on the character of our President. While I have never been a fan of his simplistic and pessimistic policy platform, I have long considered President Obama to be a good man and have defended him to fellow conservatives as such (at the expense of being dubbed a RINO occasionally). As his administration progressed, this has been a tougher argument to make, particularly after he blatantly lied about his healthcare plan (you can keep your doctor…). However, there is a difference between telling a lie and shaming the nation, or at the very least, there needs to be a very high standard when it comes to saying someone has shamed the nation (Nixon is the lone President whom I had previously put in this basket in the post-WWII era). Monday that changed.

While on the Sunday shows, Rhodes suggested Paris was a “setback.” People do misspeak or overstate their case, particularly on talk shows, and I aim to give all the benefit of the doubt, despite the callousness of that remark. Then on Monday, we were presented with dueling remarks from French President Hollande and Obama. Hollande powerfully declared to his nation: “France is at war. No barbarians will prevent us from living how we have decided to live. To live fully. Terrorism will never destroy the republic, because the republic will destroy terrorism.” Hollande understands the stakes of this battle. We are dealing with suicidal maniacs who want the world to burn, and we need to pulverize them. Hollande is seizing the gravity of this moment to eradicate a great evil from this earth.

Our President could not match this rhetoric. Instead, Obama doubled down on Rhodes line, saying, “The terrible events in Paris were a terrible and sickening setback.” Setback was not an off-the-cuff remark, it was clearly chosen in advance by our President to describe the Paris attack after being test-run by Rhodes Sunday. Our oldest ally has just suffered its worst terrorist attack since World War II, and that is all Obama has to offer. Families were destroyed, innocent civilians murdered, and children’s lives and sense of safety have been forever destroyed. This is not a mere setback; Friday we saw the face of evil. Even Orwellian newspeak cannot contemplate such emotionless verbiage.

Our President takes no issue calling his political opponents immature racists who are helping ISIS recruit (he did so earlier this evening!), yet he has no moral outrage to show psychopathic terrorists? Meanwhile, his Secretary of State suggests we shouldn’t be so shocked about the Charlie Hebdo shooting from earlier this year as though you make yourself a target merely by engaging in political discourse. That is anathema to the founding principles of this country, and the Western world.

Our President demeans fellow republicans with alarming ease but is incapable of calling out true evil on the world stage. Is he afraid of offending ISIS? There is no rationale for this cowardice. America is the world’s moral beacon, and as such, we have a responsibility, no a duty, to stand with allies and call out evil, yet we paper over a vicious action that has rocked France to its very core. In doing so, Obama is abdicating the moral authority of his office, and undermining our position in the world. We are seeing a stunning, virtually unprecedented, absence of leadership. How can we rally the world against evil when our President is all but unwilling to acknowledge its existence?

Obama’s remarks in the aftermath of Paris are unfathomable and show a moral compass gone haywire. The slaughtering of over 100 civilians is not a setback; that language is disgraceful, particularly when contrasted with the language he uses to demonize republicans. I shudder at a President who shrugs off allied civilian mass murders. We have a responsibility to lead the world, and Obama is throwing away our moral authority, which is particularly astonishing since he went on an apology tour over our supposed sins to restore it.

This is disgusting. Decency and a love for humanity demands anger, pain, and condemnation when discussing Paris or any terrorist attack. Hollande understands this; virtually all civilized people do. Yet, our President is so busy playing politics, he can see it as a mere setback in his strategy. Tell that to the families of the murdered.

President Obama has been disgraceful in the aftermath of these attacks, and I feel ashamed he is our representative to the world.

 

 

Ignoring History: The Lawlessness of Obama Executive Orders

On Tuesday, the Senate overwhelmingly passed the National Defense Authorization Act 91-3, leaving President Obama no choice but to sign it in lieu of suffering a humiliating veto override. Within the act, there is a provision banning the President from moving the enemy combatants held at Guantanamo Bay (GITMO) into the United States or third countries, thereby blocking the President from fulfilling his wrongheaded campaign promise in a stunningly bipartisan fashion.

Not to be deterred by an act of Congress (he is only an inveterate invertebrate when dealing with real enemies like Russia and Iran after all), the White House has hinted the President may use executive powers to flout popular will and bring detainees into the US anyway. Some like Senator Dianne Feinstein and others are suggesting the President could have the authority to do this under his Constitutional Powers as our Commander-in-Chief. They argue the President has essentially unlimited powers over just about any tactical decision in war-time. Funny, precisely these arguments have been made before, only to be blasted in one of the most important Supreme Court decisions you probably haven’t heard about (more on that below!).

These current arguments calling for more power to be placed in the executive are particularly rich, coming in a week when a Federal Appeals Court upheld an injunction on Obama’s executive order rewriting our nation’s immigration laws. Now, the President is turning to the Supreme Court hoping for a more receptive hearing; however, the case in favor of his order is so dubious he spent years explaining how he couldn’t “fix” immigration laws by executive fiat.

One’s view of the constitutionality of his immigration order and potential GITMO one should transcend your view of whether they are wise policy. The core issue is exactly how much power is vested in each branch of government, not whether the underlying policy is well-intentioned. While questions of process often illicit droopy eyes, its importance cannot be understated. Our founders built an intricate system of checks and balances to carefully ward off tyranny, and upsets in this balance can have long-lasting implications. We can take for granted how much of a historical (and sadly even contemporary) anomaly the peaceful transition of power we enjoy every Inauguration day is.

I’m not saying we are on the verge of despotic rule; the issue here is cut and dry so there is no need to hyperbolize. Rather, it is about ensuring that powers remain at the proper branch to avoid the tyranny of one branch over another at the expense of public’s will. Allowing power to wrongly accumulate risks an incremental, creeping tyranny. For 85 years, we have seen more power coalesce around the Presidency, primarily at the expense of the legislature, a phenomenon that has happened under both parties’ watch, to the point where congressional law at times feel like mere guidelines for the President. Here on GITMO in particular, we have a congress asserting its right, but a President looking to ignore it anyway, the public’s opinion be damned.

In actuality (where I happen to live), this is not an unprecedented situation, rather there is a specific precedent that crystallizes the illegality of such an executive order. In 1950, Harry Truman was President, and we were waging war in the Korea Peninsula. Truman faced a steelworker’s strike, which would have disrupted the supply of arms to our forces. Truman saw keeping steel mills open as a matter of national security. Now, Congress had passed two laws, the Taft-Hartley Act and the Selective Service Act (its applicability in this case can be debated), which could have been used to keep the mills operating. Instead, he circumvented the will of Congress and unilaterally seized the plants to be run under the watchful eye of the Federal Government. Believe it or not, legal calamity ensued.

In a 6 to 3 decision in Youngstown v. Sawyer, the Court delivered one of the biggest pushbacks against a Presidential power grab in the century. Truman’s argument that his war powers granted him the ability to seize private property was found sorely wanting. In his concurring opinion (which is the opinion whose influence has endured time in this case), Justice Robert Jackson explained the three tiers of Presidential power (courtesy of Findlaw, emphasis mine):

  1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
  2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Essentially, Jackson believes the Court needs to view Presidential power in three ways. In the first situation when the President is acting thanks to an act of congress, he has the most authority (both his and Congress’s combined). In the second, Congress is silent, which could lead to a fuzzy gray area over whether it is Congressional or Presidential authority. This means the President is not due the same level of deference as when Congress acts alongside him. In the third situation, the President acts against an act of Congress (either clear or implied), so his power is at the lowest ebb because the Court needs to disable Congress’s ability to legislate in that area. As such, the Court would be ruling for the President and against the Congress, threatening the balance of powers.

Incidentally, the President’s immigration executive order falls squarely into the third category where he is trying to move directly against the intent of our immigration laws. As congress indisputably has the authority to write our immigration laws, the President’s power here is non-existent, and his executive order is blatantly lawless.

Now while Gitmo also clearly falls into the third category, it is a bit trickier constitutionally as the President definitely has more power when it comes to waging war than in domestic affairs, though this power is not absolute. In Youngstown, Jackson found Truman was in the third scenario as well—the parallel fortuitously continues. The Court did determine that Congressional laws dictating the process for dealing with strikes (that were totally ignored by Truman) were still relevant during war-time as the powers of the Commander-in-Chief are actually “cryptic” to quote Jackson contrary to what Obama’s cheering squad now suggests. Jackson goes on (emphasis mine):

He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may to some unknown extent impinge upon even command functions.

This statement clearly goes against the pre-planned argument from Obama’s allies that Congress is meddling in tactical matters. That fact is not in and of itself problematic, particularly because we are dealing in part with an internal issue where the President would be bringing enemy combatants into the United States itself. Jackson eloquently notes the danger of letting a President use his foreign powers to assert additional powers within our borders (emphasis mine):

But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture….

 

This argument holds whether we are dealing with enemy combatants or steel plants. The idea our elected representatives would be powerless over what happens within our country is abhorrent to the very essence of democracy. Moreover, this line of attack doesn’t just come from our Courts, it is directly address by our founders themselves. Jackson again (emphasis mine if you hadn’t caught on by now):

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress.

Our founders went out of their way to expressly give our Congress legislative power in a tactical matter (housing soldiers) when it occurs on our soil. Ironically, many feel like the 3rd amendment is quaint if not anachronistic, serving no purpose in a modern society such as ours. They are wrong as the wider applicability is clear. The founders did not envision a President being able to take total power, Roman dictator style, during a time of war. They went out of their way to carve a role for Congress when the matters of war are internal in nature. How often in the course of human history have we seen dictators use foreign adventures as an excuse to tighten their grip back home? That is anathema to our carefully crafted constitution, ensuring democracy and balanced powers in peace and war time alike.

Given this reasoning, it isn’t hard to see that Congressional laws in that 1952 case were relevant and that Truman over-stepped. Was Truman attempting to become a dictator? Of course not; in totality, he was still one of our finer Presidents. This was merely a case where he reached too far in a time of war, and the Supreme Court took the opportunity to draw a clear line in the sand regarding Presidential power. By the same token, one doesn’t have to think Obama is a dictator to find his executive orders to be an overreach.

If there is any cogent argument differentiating a GITMO executive order from Truman’s in Youngstown v. Sawyer, I have yet to come across it. With Obama planning to sign the NDAA that has GITMO restrictions, any executive order would clearly fall in Jackson’s third scenario (contradiction with Congress’s intent) where Presidential authority is at its weakest. Bringing detainees into the United States proper is without a doubt an internal matter, giving Congress the constitutional power to legislate on the issue. That simple fact evaporates what legs that aspect of order stands on.

What about the aspect of the law that bans the President from sending detainees to Libya, Syria, or elsewhere? Does the fact the United States proper is not involved negate the specific “internal” Congressional powers implied by the 3rd amendment? In short, no. In 2008’s Boumediene v. Bush, Justice Anthony Kennedy’s majority opinion makes clear the US has “de facto” sovereignty over GITMO, making the fundamental rights of the constitution applicable there. This ruling functionally makes GITMO “internal,” providing Congress with authority. In other words, Congress has the power to put restrictions on the closure of GITMO and transfer inmates anywhere, not just to the United States but to Libya and other third countries as well.

Looking at simple Supreme Court precedent underlines the sheer lawlessness of Obama’s plans. In Youngstown, Presidential powers are clearly delineated, and on both immigration (where Courts are already standing up) and GITMO (where an executive order may be in the works), his power is at its nadir. Plus, it now appears Democrats plan to argue that being in war gives a President absolute power (funny, it seems like just 8 years ago they argued the opposite), but this does not jive with our history or the obvious intent of our founders and is really an effort to stack powers inside an Imperial President. No matter your policy preference, this is dangerous as it takes power away from the power of the people’s representatives in Congress who are a necessary check. Our constitutional balance of power is a delicate one; we mustn’t unnecessarily tamper with it and risk breaking it for our next generation. Certainly not to score cheap political points.

Obama has been fond of shamelessly saying Republicans want a return to the 1950’s for women’s rights. Well, it appears in his zeal over studying 1950’s contraception policy, he skipped over that decade’s constitutional lessons. Ironic; he was a constitutional professor after all. Must’ve skipped those classes.