July 22, 2011
Barack Obama Is Powerless Before the Majesty of the Law
Does the 14th Amendment of the Constitution trump the debt ceiling and allow the executive branch to continue borrowing past August 2nd? Oh man, if it did that would be great—Obama could just tell the Republicans to forget it, he's not going to be blackmailed into slashing Society Security and Medicare!
Sadly, Obama's lawyers have told him it doesn't, and therefore, as Obama explained at a public appearance today, that settles that:
OBAMA: Now, the gentleman asked about the 14th Amendment. There is -- there's a provision in our Constitution that speaks to making sure that the United States meets its obligations. And there have been some suggestions that a President could use that language to basically ignore this debt ceiling rule, which is a statutory rule. It’s not a constitutional rule. I have talked to my lawyers. They do not -- they are not persuaded that that is a winning argument. So the challenge for me is to make sure that we do not default, but to do so in a way that is as balanced as possible and gets us at least a down payment on solving this problem...
But I’m sympathetic to your view that this would be easier if I could do this entirely on my own. (Laughter.) It would mean all these conversations I’ve had over the last three weeks I could have been spending time with Malia and Sasha instead. But that’s not how our democracy works.
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20...
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
Of course, as people with a sophisticated understanding of the law know, there's a huge difference between ignoring the debt ceiling and bombing Libya. For instance: Obama wants to bomb Libya.
Posted at July 22, 2011 10:00 PM
I think it could be reasonably argued that the financial markets would react adversely to an unilateral supersession of relevant financial laws, which include the debt ceiling, by the executive authority, so that the consequence which it was the original intention to avoid, a seriously adverse reaction in the financial markets, would apply in any case.
The whole poitn of this exercise is to reassure the financial markets, so if that goal is not fulfilled, then the result would hardly be satisfactory.
Maybe if he would just snicker more malevolently like Bush "heh heh" lefties would be more realistic about what Obama really represents.
Not all laws are equal.
"Obama wants . . ." Ha ha ha. There isn't much of less consequence than what Obama wants, except when he wants something special whipped up from the white house kitchen.
There was a time when leftist thinkers recognized hard realities more unflinchingly than nowadays. Wall Street and the Fed and "international finance capital"--these really are powerful forces, more powerful than our namby pamby politicians of all parties. During the booms of our boom and bust cycles, Money calls all the shots because they're paying everyone so much. And during the bust of the cycles, Monday calls all the shots because nobody else has any, and everybody else is required to empty their pockets to pay tribute. The law does not have too much to do with this except in a superficial way.
What's funny to me is that a general counsel of the pentagon went along with that fine academic DOJ reading of the War Powers Act and made the President swallow after fellating the Pentagon instead of giving him cover by saying the War Powers Act was inapplicable. But no, they wouldn't even help him out with that small political favor. Too funny.
Poor Barry seems to have become the Rodney Dangerfield of Presidents. Then again, that happened to his hero Lincoln a lot more than he realizes, which goes to show the danger of leaders reading fawning rubbish by Doris Kearns Goodwin instead of something with sharp edges.
The script is practically written already. Obama will agree to the cuts and postpone any major tax hikes on the wealthy til "next year." He will then claim it as a victory of compromise, saying it was the best deal he could do. And he will be right. He will be the best deal HE can do.
Sadly, Obama's lawyers have told him it doesn't,
Ummm... he's supposedly a constitutional law genius like Glenn Greenwald.
Supposedly (in both cases).
another lead balloon
It seems to me the question here is how solid is the legal argument against using the 14th amendment to bypass the obstructionists. Is there a strong case that he CAN do this? If so, then we can reasonably request this.
The subtext in all of this is what is Obama's real agenda? Are his protestations of helplessness just the latest scam on the public? As has been made clear here, it certainly is suspicious that everything is possible when it comes to launching wars, but nothing is possible when it comes to saving "entitlements".
Of course, what Obama wants matters. To show it did not would require establishing two propositions: 1. Obama wants to do A but "powerful forces" want him to do B; and 2. Obama is coerced into doing B and not A. There is no evidence of that. On the contrary, a case can be made that a necessary condition for being president is that one's will should align with that of the powers-that-be. But that does not negate it. Voluntary agreement with a coercive force in no way diminishes the relevance of one's will: "Obama wants to do A and "powerful forces" want him to do A" does not mean that Obama's will is irrelevant. Irrelevance can only be asserted with a counterfactual involving disagreement.
NE's second mistake is to even deny the existence of a spectrum within which the president is free to roam. Take health care, for example. ObamaCare fits the needs of the health care establishment. But so does the status quo. The reason we have ObamaCare is that Obama wanted it for political reasons (pretty much in the form it came out). There is zero evidence he was coerced into it, and he could have easily postponed his reform. The final result came pretty close to what he wanted in the first place. So this is a textbook example where Obama got what he wanted and what he wanted made all the difference. He wanted a corporate-friendly reform even though the health care establishment could have lived without it. The consequences are hardly irrelevant.
The concept of the irrelevant president is part of a larger pathology that denies powerful individuals will and agency and hence responsibility. If obama's will is irrelevant, after all, then why should he be held responsible for anything? Lloyd Blankein has no choice but make billions for Goldman Sachs and for himself. Countrywide's Mozilo? Another puppet. Schumer's whoring for Wall St. A dick licking puppet. But if everyone is a puppet then there's no one to pull the strings, except nebulous "systems." This view that all responsibility ultimately flows to am amorphous system of forces and collective interests is essentially totalitarian. Not of the Marxist kind, I must add. (Marx himself prized personal responsibility as a necessary condition for human dignity.) This is what leads to conspiracy theories and all the related pathologies. A kind of moral abdication and call to submission all too common among liberals.
DEMAND EQUAL PAY FOR EQUAL WORK TO BE ADDED TO THE DEFICIT BILL, call John Boehner @1-202-225-0600. Let's get OUR 2cents worth into this game.
How is a systemic analysis inconsistent with assigning responsibility to individuals who participate in that system?
Frankly, I don't care what goes on in the heads of our political class. Presidents do what they "want" and are responsible for those actions (i.e. bombing Libya, selling out to Wall Street). That all presidents do basically the same things with regard to empire, perpetual war, plutocracy, authoritarianism, etc. indicates that there are strong institutional pressures going on. Obama and Schumer whore for Wall Street because those interests finance their campaigns. Baucus helped engineer a health care bill subservient to insurance interests because they finance his campaigns. The Democratic Party assigns these figures to leadership positions because they are equally subservient. CEOs sell out labor and the environment because they are required by law to maximize profit. These laws were built over time because they were in the interests of major profit-making sectors of the population. The entire establishment supports perpetual war because defense conglomerates are embedded in every congressional district. All this strikes me as the opposite of conspiracy theory.
And our presidents are guilty of massive crimes against humanity, which they commit because that is the way they acquire and maintain power in a corrupt system. How is this totalitarian?
Interesting comment, Bobs, and I was with you until the last two sentences. To me, ignoring organized political murder is a much greater "moral abdication and call to submission" than, say, putting a good face on Obamacare. I disagree with both, but the former is worse.
Since 1964, the institutions of the American Left have been firmly behind the government line--whether that's AJ Wirin, or The Nation, or Chomsky. Sure, there are institutional/personal reasons that these fellows did what they did, and people on this site have trotted 'em out; but that's not any different than liberals making excuses for Obama. There's no moral high ground here, just people arguing for "their team."
I'm a strong believer in individual agency in politics and history, and that's precisely why the fact of certain conspiracies is so obvious to me. "Shadowy forces" aren't required, merely "you fucked my wife" or "I'll lose my job" or "black people are scary." Garden-variety human motivations magnified by institutional power. And it's only after the fact that the organizations are required to act--not because they share the individual's motivation (though sometimes they do)--but because the institution has been put at risk. If Angleton and Phillips kill JFK, the entire CIA now has to cover its ass. If one truly believes in individual will as a political force, conspiracies--the scaling up of personal mischief--are not only possible, but likely.
Conspiracy-talk aside, where I depart from some commenters is that I don't believe Obama has to be extraordinarily flawed to do what he's done; all he has to do is be no better than the average politician--a very peculiar kind of human being to begin with, and one quite different than ATR commenters. To me, this doesn't excuse what he does, but I don't waste a lot of time expecting him to be different than what he's shown himself to be. My hope was that Obama's extraordinary circumstances indicated an extraordinary person--but that has not proved to be the case. And the key role of extraordinary individuals in improving our society is yet another melancholy argument for the efficacy--and thus likelihood--of political violence.
Anyway, Bobs, thanks for the opportunity to work all this out a little more.
My colleague and I isnacknowledgeou trade featured posts? I am always attempting to find someone to make deals with but it??s simply an insight I would call for.
Spaghetti Straps evening dress sums it all up for me. And it would be SO TYPICAL of Jon to delete its post on the sophistical ground that it is computer-generated spam and not the sort of comment that reveals the truth about our system in words plain and clear to all.
they are required by law to maximize profit.
Cite please, and I mean (a) statute(s) and/or case law. And no vague discussions of "fiduciary duty."
As state sanctioned enterprises, corporations argue with limitations imposed (haha), and generally speaking have a broad range of discretion (business judgment) when implementing policies.
"corporations argue with limitations"
argue s/b operate
I haven't read everything yet but this is what I've come up with, so far:
We're okay with it all aka we're full of motherfucking shit.
Wow. Clues become self-evident.
I can't believe that people are seriously suggesting that the US President has the power to overthrow the constitution and to spend money that was not allocated by Congress. That would be as illegal and unconstitutional as anything I can think of. It would amount to a coup d'etat, in fact.
I think the relevant part of the 14th amendment is the part saying: "But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
If Obama ignores the Constitution and authorizes the illegal expenditure of money he would, IMHO, be committing an act of insurrection and rebellion himself, and should be impeached. In any case, the American taxpayers would be under absolutely no obligation whatsoever to pay any of those debts. Only Congress can spend money. Period. There are no exceptions to this.
The Constitution is sacrosanct. There are absolutely no provisions for violating it just because a bunch of spoiled rich people want to keep their gravy train going, or because a small group of people are so ignorant of basic economic principles that they think debt is an answer to economic problems. Don't believe the corporate-controlled media's hype folks. It's raising the debt ceiling that would cause economic problems, not the other way around. Evidence that the US is prepared to confront and deal with its financial misbehavior would be cheered by the world's markets, albeit after a short period of uncertainty.
Congress already authorized all of the spending when they passed the budget. The debt ceiling is a completely ridiculous notion - I've heard someone say it's like eating a big meal and then tying off your lower intestine.
The punchline is that it that the amount of the federal govt debt isn't even important. This is all just a political game.
mike: YOU've seemed to haveleft out the first in that section that stated that the validity of the public debt is wothout question. I see that YOU got the exceptions for the Civil War correct, but left out the relative MAIN point. HAPPILY WE seem to be able to read The Constitution STILL,and thereby are able to reconize horseshit.
Your instincts on spoiled rich people are correct though, mike. Interest payments on the federal debt are a subsidy.
The answer, however, is not to stop govt spending. The answer is to stop issuing debt. The govt has no need to borrow something it can create at will.
mike (but not mike of angle)
sorry, but the 14th amendment really has nothing to do with anything here, and I don't know why Obama even brought it up except maybe to hint to Congress that he has a card to play that maybe they wouldn't like by claiming Constitutional authority to ignore their obstructive irresponsibility. The debt ceiling is just a damn statute, and Presidents ignore statutes plenty when they can get away with it--case in power the War Powers Act. The real problem is the financial markets--what I referred to above as Money. Money can screw any politician any time, and sometimes without even leaving cash on the table. Whether Money would side with an irresponsible Congress is hard to say, because It certainly would like to destroy all entitlements like Social Security and Medicare, but Obama and the Dems are good customers too, so hell if I know how it will play out.
bobs, sorry, but I think you've got Marx sounding like he wrote self-help books or had a show on the radio. One thing I have concluded is that Marx never said anything insipid, even when he was being a real bore. He didn't get a princess to marry him for nothing, and you won't find many citations to help you with that Marx on Personal Responsibility lecture series you're apparently planning.
Edward, I don't ever hear Obama protesting that he's helpless--that would be terrible politics. He just IS helpless to do good things, though frankly I don't know whether he really wants to do good things. I generally don't think experienced politicians think idealistically, or even with all that much principle. Not even the ones who did great things or acted with courage when it counted. Politicians aren't bloggers or comedians, for God's sake, and I don't think it's fair to hold them to those high standards of character and principle.
Finally, I don't care if anyone believes in conspiracies or anything else. This is Amerika and there's a constitutional right to be whatever, and as long as people are kind I like 'em even if they don't know a damn thing about anything. Some of the best people I know aren't all that smart, and some of the worst people I can think of are pretty damn smart. I fall somewhere in between and strive toward sustainable mediocrity, with a tape available outside the auditorium for $15.95.
I have to admit that Aaron has got me all confused about generalizing. I think there might be some sort of shot noise interfering with my signal amplitude and a breach in the warp core, so now I'm saying adios and beaming up.
There's really no way to improve on this post. Bravo.
As far as I can tell we've reached a point where any given thing the president does is considered legal if neither the banks nor the cable TV news networks are likely to disapprove, and apparently this is just how the strict constructionists we keep hearing about want it, what with the balance of powers, etc.
"I don't ever hear Obama protesting that he's helpless"
Mr.Obama may not use those words; however, the idea here is that the Democrats/Obama are pretending to defend "entitlements" while in reality they are scheming to reduce/eliminate these programs. They want to appear forced into the cuts they are contemplating.
On Democracy Now this week, economist Michael Hudson suggested that the role of the Tea Party is to take such extreme positions that what the Democrats are proposing will seem reasonable to the public.
I like Michael Hudson, and that observation sounds like one made long ago at ATR about the Overton Window (which was then unfamiliar to me but David Byron educated me). I agree that pushing/pulling the whole political spectrum to the right is a key to the agenda of the Kochs and their pals funding the Tea Party, and the Tea Party is the same damn thing that the Perot movement was, which was I'm sure also earlier incarnations of the disaffected Right before that. Those wingnuts know how to take the offensive.
I don't really think that much organized "scheming" goes on, which probably sounds weird given that I think what are called "conspiracies" so often are commonplace. Our system generates complicity and coverups and inertia pretty organically, without the need for much fertilizer, and what the Dems collectively do is what their funders ask them to do, in a servile and almost braindead way. Picking on the poor and the vulnerable--well, that's just the path of least resistance. Fascists and their fellow travelers enjoy picking on the weak become weakness is loathsome to them, but to those who don't despite pity it's just easier to let the poor be victimized. Maybe that's appropriately called "wanting" and certainly it's not a "whoops look what happened" surprise to anyone that these programs get slashed, but I really think the Dems are basically just craven.
Cravenness is actually a pretty disgusting quality, but some people prefer words like "evil." Whatever.
For instance: Obama wants to bomb Libya, just like he wants to slash Social Security and Medicaid.
Fixed that for you.
One would think that administrations know that confusing policy destroys trust in government.
They are all over the place regarding state licensed, doctor prescribed, medical marijuana use.
They are indicting small time providers who are then facing 5-40 years in prison after they said they would not prosecute them.
Insight into what Obama wants and why he does what he does.......
By STEVE BREYMAN
It is hard to know from a distance how exactly these pro-corporate policies are formulated and executed but I do believe politicians routinely manipulate and deceive the public.
Edward wrote: "I do believe politicians routinely manipulate and deceive the public."
Yep, and they don't feel bad about it either. As Richard Nixon said, the average American is like the child in the family. This patronizing attitude shows up all over the place in public life, and as we all know, people lie pretty regularly in their private lives too. We homo sapiens are liars. (More generally, sinners)
Sometime if you have the time take a little while to read Sisela Myrdal Bok's book Lying: Moral Choice in Public and Private Life. A few decades ago, just after the end of the age of innocense in the late 70s, Bok closely examined why people lie and how they justify it. In an environment of pervasive lying, including but not limited to business or politics, telling the truth isn't widely perceived as effective or smart.
This problem brings to my mind the dilemmas faced by Robert Kennedy after his heroic brother's death, because I love those two guys (and for good reason based on knowledge, because until I was over 40 I didn't know or care a bit about them). But that's just the example that springs to my mind--different people could think of a million other situations where someone knows that if he tells the truth, he will not succeed in fixing a problem and will instead likely make things worse and/or harm himself and what he cares about. Telling the truth is often severely punished in this ugly world, and not always effective, and people who haven't learned that have been lucky and/or are naive.
Mind you, I haven't seen any evidence to suggest that this ethical problem/dilemma presently is part of our Presidential politics, but maybe in 30 years, after my generation is mostly dead or senile, a few documents will trickle out into the public domain to show that little bits of courage presently still survive in a few closets here and there. That could be, but whatever courage still is around doesn't seem too contagious to me.
Which is a real pity, because we all sure need more of it right about now.
There is an institutional quality to the deceptions that go on in this society. As I recall, according to Chomsky, about $1 trillion is spent each year in this country on propaganda. At any rate, our government seems little capable of doing much to improve society and the public seems immobilized (sans Wisconsin). The government is all about succoring the wealthy and promoting war.
Whether or not they will ever say it, the people who control governments have a habit of thinking of themselves as rulers. And they've never been all that devoted to the best interests of their subjects, so if the subjects don't demand better, they don't get it.
Actually, they don't generally get it anyway, but every now and again when all the various rulers tear each other to pieces and all hell breaks lose (notably after WWI and after WWII), the subjects do a little better for a while.
that's my two-paragraph history of the world
"... if the subjects don't demand better, they don't get it."
That's for sure. Still, governments are not 100% ideal or 100% corrupt; they lie somewhere between these two poles. Right now the U.S. government is an empire-in-decline mess.
I basically agree with that, but the weird thing about the US is that our government has been a mess basically from the get-go--this isn't a problem that started once we became an Empire in Decline. It's striking to me that everyone in the US thinks that at one time we had good government--that's certainly sort of what I used to assume. But if you read enough things written by smart folks in pretty much any decade in US history, you'll discover that people have widely thought our government was a mess in really big ways ALWAYS. We've just recently added the empire-in-decline problem to the mix.
The basic structural problem we have is the idiotic, antidemocratic, reactionary structure of our government, which the crafty Madison and Hamilton and the rest of the Federalists came up with to thwart democracy. And which ever since has done just that.
Remember the ole "Manifest Destiny Doctrine"? WE've always been an empire built on the backs of the Indian(worth 0 according to the Constitution) and on his land with the enslaved Blackman(worth 3/5 of a Whiteman according to the Constitution) to do the HARD labor, dirty work. WE ran out of room, that's all. WE can no longer expand outward THUS WE must expand upward. Either way, WE will keep expanding 'cause its ALL WE know, the ONLY thing that WE collectively TRUELY believe in.
I agree that the flaws with governments are glossed over in school textbooks. I think what has been a strength for the U.S. system is the idea of checks and balances; this serves as a brake on the corruption. The checks are not working these days, however. Some refer to today's situation as the "second gilded age".
Yes, I agree there is a cultural element to America's imperialism.
N E, I would pretty please like to borrow your brain for a day.
To Jonathan, NE, Edward, Mike Meyer and all the rest, you should know...
James K. Galbraith sums it up:
“We’re in a summer that only Salvador Dali could paint, a reality so twisted that one almost yearns for the simple verities of the War on Terror or even the invasion of Iraq. Then as now, to be serious one must be a “hawk.” (The dove is a weakling, a loser, and the owl for all practical purposes does not exist.)
“The debt ceiling was first enacted in 1917. Why? The date tells all: we were about to enter the Great War. To fund that effort the Wilson government needed to issue Liberty Bonds. This was controversial and the debt ceiling was cover, passed to reassure the rubes that Congress would be “responsible” even while the country went to war. From the beginning, the debt ceiling was an exercise in bad faith and has remained so every single second to the present day.
“Today this bad-faith law is pressed to its absurd extreme, to force massive cuts in public programs as the price of not-reneging on the public debts of the United States. Never mind that to force default on the public obligations of the United States is plainly unconstitutional. Section 4 of the 14th amendment says in simple language that public debts, once duly authorized by law and including pensions, by the way, “shall not be questioned.” The purpose of this language was to foreclose, to put beyond politics, any possibility that the Union would renege on debts and pensions and bounties incurred to win the Civil War. But the application is very general and the courts have ruled that the principle extends to the present day.
“What is going on in Congress at this moment already violates that mandate. It is an effort to subvert the authority of the government to meet and therefore to incur obligations of every possible stripe. It is an attack on the concept of government itself – as the “Tea Party” by its very name would no doubt agree. It therefore paints those deficit hawks who are using the debt ceiling to take budget hostages as enemies of the United States Constitution.” --Monday, 07/11/2011 - 2:13 pm by James K. Galbraith http://www.newdeal20.org/
Grandpa Ken: AGREED. I know a guy who knows a guy that REALLY needs to hear what YOU have written. There's a bunch of them I know, but this guy COULD make a difference. His name is John and his phone # is 1-202-225-0600.
I think Pollock could probably have painted something cool with that. Or Steadman, yes, Steadman can for sure.
A tangental comment:
Note that the word "conspiracy" has been made a dirty word by our aristocracy by virtue of the fact that "conspiracy theory" has been made a dirty phrase due to twits. The fact of the matter is, conspiracies are common. All governments are conspiracies and consist of multiple conspiracies. Every independent business is a conspiracy. Hell, the old women who gossip in your apartment building (if this fits your lifestyle) and socially manipulate the other residents are a conspiracy.
This, of course, has nothing to do with the Bavarian Illuminati, the Reptoids, or teh Joooooooows: thus, it becomes incumbent upon our aristocracy and its lackeys to make that facile association.
Posted by: mike at July 23, 2011 04:50 PM
I can't believe that people are seriously suggesting that the US President has the power to overthrow the constitution and to spend money that was not allocated by Congress.
Sir, they already do that! All "black budget" items -- the CIA and NSA budgets, for example -- are already unconstitutional and the Framers specifically went out of its way to make them impossible. They knew there would be call for espionage and yet they made no provision for such agencies: deliberately. So both Congress and the President already violate the Constitution on a regular basis when it comes to financial issues.
And, of course, since the president now has the authority to make war at will, he can enrich himself, politically and economically, and his allies in the same capacity, at taxpayer expense, AND, since the Supreme Court created, unconstitutionally and out of whole cloth, a standing doctrine with no logical or factual basis that exists literally for the sake of political convenience, cannot be challenged by any citizen through any legal means whatsoever. . . and the Framers knew every single bit of that would happen, which is why they expressly, and with mearsureless enthusiasm, made it illgeal.
The Constitution is toast. It is dead letter. We are ruled by custom, convention, and political struggle. The Constitution is representative of some of our ideals, but it does not operate consistently over or for the poor and nearly at all on the rich.