Free Markets, Free People
Obama has strained to make everyone believe he is open to “negotiations” on the tax rates in dispute that are leading us inexorably to this “fiscal cliff” everyone is talking about.
The word “negotiate” implies compromise. You give a little, he gives a little, you reach a deal neither really likes but both can live with.
He has no intention of giving anything. Why should he? He can’t run for a third term. He has nothing to lose if he stands his ground. Nope, the only one’s who have anything to lose in this one are the usual deer-in-the-headlights suspects. And, of course, Obama has someone else to blame:
By taking an absolutist line, he’s basically gambling that Republicans will be more reasonable than he is and will blink. But if they don’t blink and we go over the cliff, from his point of view so what? Mr. Obama then has an excuse to blame Republicans if there’s another recession. Meanwhile, he pockets the higher tax rates that take effect on January 1 anyway, and he can then negotiate a budget deal next year without having to make any tax concessions.
He pleases his left wing for which higher tax rates are a secular religion, while pinning one more defeat on Republicans. Lest you think this is a conservative fantasy, it’s more or less the tax cliff strategy that Democratic Senator Patty Murray of Washington advocated on Sunday on ABC’s “This Week” and that labor leaders lobbied for at the White House on Tuesday.
So, as we wander toward Taxmageddon, fear not, either way it goes, Obama figures he wins. So why try?
“Freedom is the right to question and change the established way of doing things. It is the continuous revolution of the marketplace. It is the understanding that allows to recognize shortcomings and seek solutions.”
Ronald Reagan — Address to students at Moscow State University, May 31, 1988
Remember the Orange Revolution? Believe it or not, it’s still pretty darned important.
We’re knee-deep in a presidential election. The European Union is witnessing a slow-motion meltdown. Syria is quickly becoming a bloody nightmare, while North Africa seethes under the vicissitudes of the Arab Spring. Iran marches closer to nuclear arms, and perhaps war with Israel. And Sino-Japanese relations threaten to simmer out of control. So why care about the Ukraine?
The simple answer is because Ukrainians have had a taste of freedom, and liked it, and we should encourage that journey towards liberalization to continue. We have an interest in such development – via free and fair elections, open markets and greater legal protections in its reformed court system – because this is how individuals become personally invested in the growth of the nation, and thus how liberty spreads. As President Reagan emphasized in 1981, “only when individuals are given a personal stake in deciding economic policies and benefiting from their success — only then can societies remain economically alive, dynamic, progressive, and free.” The more societies like that in the world, and especially in the Eurasian region, the better. And this is exactly where Ukraine is poised to go.
Unfortunately, we may be taking steps to discourage further liberalization in the form of a Senate resolution essentially demanding that Ukraine act exactly like a western democracy immediately or face consequences. The reality is that the former soviet republic of nearly 50 million souls is at a crossroads. Will they continue to move towards alignment with the West, or turn back towards familiar haunts in Moscow?
To be sure, the current government has expressed great interest in being integrated into the European Union, going so far as to ink an Association Agreement in March:
The Association Agreement creates a framework for cooperation and stipulates establishing closer economic, cultural, and social ties between the signees. Moreover, Brussels officials expect the document to promote the rule of law, democracy, and human rights in Ukraine.
This first step to entering the EU (which still needs to be ratified) requires a concrete demonstration from Ukraine that it is moving towards “an independent judicial system, free and fair elections and constitutional reform.”
These are exactly the sorts of reforms that serve to expand liberty. Indeed, as Ukraine has liberalized over the past two decades since independence, it has since fits and starts of great economic growth and expanded prosperity. For example, between 2001 and 2008, the economy expanded at an average rate of 7.5%, and despite a severe downturn in 2009, it has continued to grow with exports increasing by 30% in 2010 alone. Indeed, Ukraine is ranked by CNBC.com as the second best country for long-term growth in the world, right behind the Philippines. Ukraine has also begun to institute judicial reforms that promise to train better judges, hold them accountable, and strengthen the fairness of the system that has long been burdened with rampant corruption and cronyism. And for the first time ever, outside election observers will be allowed to monitor the parliamentary elections this month.
Yet, these necessary and welcome reforms lie on a fragile bed.
Ukraine has been moving toward a market economy since it declared independence in 1991. The way has been extremely difficult and bumpy. Twenty years after the beginning of market reforms, Ukraine is still struggling to build a strong, transparent, and sustainable economic system that can provide the Ukrainian people with economic prosperity and social security.
Moving towards greater integration with the West, via the EU, will strengthen that bed. Demanding that Ukraine act as a long-established western democracy right now, today, only serves to further weaken it :
Economics 101 defines the problem of scarcity as unlimited wants with limited resources, and, to paraphrase George Shultz, the laws of economics apply as much in foreign policy as they do at home. While it may be rhetorically satisfying and politically convenient for Americans to assert an equal commitment to every priority in Ukraine, ranging from democratic development to removal of weapons-grade uranium, the reality is that some priorities are achievable, at an acceptable cost and within a realistic timeframe, while others are not.
If we cannot advance all of our values and all of our interests all of the time, then we are left with the necessity of ranking our national priorities. While it is clearly important that Ukraine put an end to politically motivated prosecutions, it bears asking whether resources and attention from Washington that have been focused exclusively on this issue are crowding out other compelling U.S. national interests.
The Orange Revolution was not a battle or a war. It was, and is, a movement. Our national interests will always be aligned with fostering greater liberty, which is what the Orange Revolution movement is all about. Instead of throwing up roadblocks in the Senate, we should be helping build road signs that lead towards further peace, prosperity and freedom.
As you might imagine, it has consequences, and, given this situation, it is very hard to pretend the consequences are unintended. Why? Because even a 5th grader could have predicted this outcome:
In a startling allegation, the president of the union representing Immigration and Customs Enforcement officers claimed illegal immigrants are "taking advantage" of a new directive allowing some undocumented residents who came to the U.S. as children to stay in the country. Union boss Chris Crane said the policy ends up allowing illegal immigrants to avoid detention without any proof — particularly so-called "dreamers," or those illegal immigrants who would benefit under the "DREAM Act" proposal, which Congress has not passed but the administration has partially implemented.
"Prosecutorial discretion for dreamers is solely based on the individual’s claims. Our orders are if an alien says they went to high school, then let them go," he said at a press conference with GOP senators. "Officers have been told that there is no burden for the alien to prove anything. … At this point we don’t even know why DHS has criteria at all, as there is no requirement or burden to prove anything on the part of the alien.
"We believe that significant numbers of people who are not dreamers are taking advantage of this practice to avoid arrest," he said.
Whether or not you agree with the immigration laws of the country, executive fiat is not the method the Constitution outlines as legitimate redress. And, unsurprisingly, those illegals who would benefit, even if not actually eligible, will exploit an opportunity such executive fiat presents.
According to Chris Crane, that’s precisely what is happening.
The allegations from the union were expressed in unusually blunt terms Thursday.
George McCubbin, president of the National Border Patrol Council union, said the Department of Homeland Security has made it impossible for agents to do their jobs.
Crane said it’s led to disorganization and "confusion" at ICE.
Not that ICE hasn’t had its share of confusion in the past, but now, it is even more difficult to do their jobs.
Crane cited one case in which, he said, an immigrant facing criminal charges was let go under the policy. Further, he complained that officers are "under threat of losing their jobs" if they defy the policy.
Anyone who thinks this is how our system should work needs to re-examine the Constitution. One branch creates the laws (legislative) and one branch enforces the laws (executive). If you don’t like a law or want it changed or repealed then it’s back to the legislative branch. And no, inaction by the legislative branch doesn’t mean the executive branch can arbitrarily ignore the law or decide it’s not going to enforce it. Not and still be a Constitutional republic.
I’m on record saying our current immigration system sucks. There’s no reason in this day of cyber advances that we couldn’t have the slickest and quickest system on earth. And yes, I hold Congress directly responsible for the inactivity that has led to the mess at the border.
But that doesn’t give the executive license to ignore laws or selectively enforce them. Kings do that, not presidents, and we have no kings. We just have a president who thinks he’s one.
We talk about it. Politicians condemn it. Nothing ever happens to change it though.
This year’s agriculture bill again redistributes your money to rent seekers:
Combine a Midwestern drought with pointless ethanol mandates, and the supplies of corn inevitably dwindle, driving prices sky high. Politicians like Sen. Claire McCaskill, Missouri Democrat, are citing the crop crisis as an excuse to ram through a near-$1 trillion farm bill. While a bit of that cash might find its way to a small farmer, the bulk of the loot will be transferred to individuals who are anything but poor. Like the bank bailouts and TARP, the farm bill illustrates the capture of the legislative process by special interests.
The last farm bill in 2008 was the focus of $173.5 million in lobbying expenditure, according to a report released Tuesday by Food & Water Watch. This is all money spent on what the Mercatus Center’s Matthew Mitchell calls “unproductive entrepreneurship” where people are organizing and expending their talent to become rent seekers, and the end result is wealth redistribution, not wealth creation. Real entrepreneurship innovates in ways that are socially useful. Cronyism diverts resources — both money and talent — into a system that rewards privileges to favored groups. In the case of the 2008 farm bill, recipients of subsidies of $30,000 or more had an average household income of $210,000.
Mr. Mitchell argues that “government-granted privilege is an extraordinarily destructive force” because it not only results in a misallocation of resources and slower growth, it undermines civil society and the legitimacy of government by providing a rich soil for corruption.”
She’s absolutely right. And, of course, when you mess with markets, like has been done with the corn market and mandated ethanol, the expected results occur when something unanticipated, like a drought, happens:
Corn and soybeans soared to record highs on Thursday as the worsening drought in the U.S. farm belt stirred fears of a food crisis, with prices coming off peaks after investors cashed out of the biggest grains rally since 2008.
Corn prices crossed into uncharted territory above $8 per bushel — about three-and-a-half times the average price 10 years ago of $2.28. Soybeans punched past $17 for the first time — also three-and-a-half times the 2002 average.
Analysts said that while forecasts for continued dry weather are expected to sustain the rally, corn prices could be vulnerable to any move by the government to lower the amount of corn-based ethanol blenders are required to mix with gasoline.
Notice what entity is mentioned in the last paragraph? Yes, government. A key player in the increase in corn prices (yes, understood, they’d be higher with the drought alone, but government’s ethanol mandate has driven them even higher yet).
Meanwhile, as mentioned above, we’re subsidizing agriculture to the tune of $1 trillion dollars of your money (in cash or in debt to be paid back in the future). Meanwhile, you’ll be paying more for corn based products at the grocery store as well.
Nita Ghei lays out the bottom line problem with this sort of cronyism and rent seeking:
Government privileges come in many forms, direct and indirect. It might be a monopoly, such as the one granted to utilities like Pepco. Regulations such as licensing can be used to limit entry to a particular field to the benefit of existing businesses. Lobbying and the revolving door in Washington create what economists call “regulatory capture,” which is what happens when existing firms use regulatory agencies to benefit themselves. Tax breaks, loan guarantees and subsidies are the most direct signs of a government’s favor. Bailouts of big banks under TARP, and Fannie Mae and Freddie Mac when the housing bubble burst, are the most recent examples of direct action.
Extending each of these privileges reduces America’s economic competitiveness. A monopoly protected by the government has little incentive to provide good service. The greater the availability of privileges, the greater is the incentive to indulge in rent seeking, which diverts resources from truly productive activities. In the long run, the result of anti-competitive policies is less innovation, lower growth and a smaller pie to share.
The greatest scourge to the honest Midwest farmer is not unfavorable weather, pestilence or disease. Far worse for them is the plague of politicians who create an artificial market in which only those with influence can truly compete. Defeating the budget-busting 2012 farm bill is the best chance at a good harvest.
The chances of that happening, however, are slim to none. Regulatory capture is as common now as government debt and unemployment. It is a systemic problem that rewards rent seekers and the well connected to the detriment of innovators and competition. It is the antithesis of capitalism.
Unless we have the will to stop this sort of cronyism, we’re on a short road to failure. This is another, in a long line of government programs, that are unsustainable, destructive and just flat something government shouldn’t be involved in.
But my guess is, this time next year, we’ll still be talking about it, politicians will still be condemning it and nothing will change except the higher national debt number.
President Obama is on his newest attempt to change the subject and find something to take to the people that might interest them and distract from his abysmal economic performance. It’s taxes. Specifically, he’s decided to make an issue of the automatic tax increases that will take effect in January and claim he does not want to see taxes increase on anyone but those nasty rich who need to “pay their fair share”. Or, back to class warfare.
A) He likes to refer to these as the “Bush tax cuts”. In fact, they’re the current tax rate. Have been for years. What he wants to do is see a tax increase on the rich, but no one else. I’m not sure how else one characterizes that but “class warfare”, especially given the percentage of total taxes that top income group pays already.
B) Republicans are saying no tax increases on anyone. Democrats like to characterize that as protecting the rich. I like to characterize it as an attempt to address the real problem – out of control government spending.
C) The nasty “rich” Obama wants to tax also include almost a million small businesses. That’s one of the primary reasons, in this weakening economy, that Republicans are right not to agree to any tax increases. It is both stupid and economically suicidal. But then you have to know about economics and the business world to understand that.
D) Democrats had two years of a complete monopoly on government to get this done and didn’t. It’s not the Republicans who have prevented anything. It is total incompetence on the Democratic side of the aisle. And, as Obama’s favorite pastor likes to say, “those chickens are coming home to roost”.
E) Finally, Barack Obama has already raised taxes on the middle class despite his statement in a speech yesterday claiming he had no desire to raise middle class taxes.
The tax is called the mandate in ObamaCare. It goes like this:
75% of the mandate tax falls on the middle class. That is a middle class tax hike in anyone’s book.
So when he claims he has no desire to raise the taxes on the middle class, that may be true … now. Because, in fact, he’s already done it.
I’ve read all the pundits and listened to all the talking head elite tell us how incredibly nuanced and subtle the Chief Justice was by approving the law as a tax. In fact one described him as “"a chess master, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."
I say “BS”. He sold out. He ended up being more worried about the perception of the court and his legacy than upholding the Constitution of the United States. And I’m not the only one who feels that way. The Wall Street Journal also throws a punch or two at Roberts:
His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government’s core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.
If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court’s legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice’s cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.
"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court’s most important role is to protect liberty when the political branches exceed the Constitution’s bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.
Precisely. And Roberts caved. From the lecture the court got from Obama during a State of the Union address till now, he became a cautious old lady more concerned with his reputation in perpetuity than serving the people and the Constitution he swore to uphold.
That, as the WSJ says, is “more corrosive to the rule of law and the Court’s legitimacy” than anything he could have done. He didn’t have the spine to take the heat from a controversial but proper decision so he took the easy way out. He threw away his integrity for popularity and peace. A judicial Chamberlin if you will.
Jacob Sullum at Reason gives you the rest of the bad news:
The Journal notes that the tax power endorsed by Roberts is no less sweeping and dangerous to liberty than the Commerce Clause argument he rejected. "From now on," it says, "Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires." Worse, as I pointed out last week, the tax trick allows Congress to dispense with claims about interstate commerce altogether. As long as a mandate is disguised as a tax (and as long as it does not violate explicit limits on federal power such as those listed in the Bill of Rights), "because we said so" is reason enough.
Mandates “disguised as a tax” give Congress almost limitless power to control your life. That is the power Roberts handed our elected officials.
Oh, but the apologists say, that will never happen. They’d never abuse that power. Yeah, a little lesson in history. When the Constitutional amendment for the income tax was being debated some wanted to put a 2% limit on it. “Don’t do that,” the others said, “it will encourage Congress to immediately go that high.”
And here we are.
The Congress no longer need wrestle with intrusion in your life via the Commerce clause. Justice Roberts just gave them an infinitely easier route that doesn’t require a Constitutional check. He effectively removed the Court from its role in protecting you from increasing government intrusion.
And clever politicians will find a way to use that power he handed them when necessary. Don’t you ever doubt that.
As for Roberts. I have little or no use for a man who sits on the bench of the Supreme Court and puts politics in front of the Constitution he’s sworn to uphold.
I won’t belabor you with a full detailing of how the court ruled yesterday on Arizona’s immigration laws except to say most of it was struck down with the Court supporting the “supremacy clause” as its basis for doing so.
However, it did find for AZ in one part of the law – the requirement to produce identification, if asked, proving citizenship if law enforcement is has a reasonable suspicion the person is in the country illegally.
Note the last word.
You see, that’s the word that is often left off when discussing immigration, as in “the right is anti-immigration”. Of course that’s a totally inaccurate assertion. The vast majority of the right is against illegal immigration. Legal immigrants are both wanted and welcome.
That said, we all know that our immigration system is flat out broken. It sucks. It is terrible. And in this day and time, given advances in the speed and efficiency of communications, there is absolutely no reason that should be the case. Upgrading and speeding up the system should be a priority.
But that doesn’t change the fact that people who go around that antiquated system and take it upon themselves to enter the US illegally are lawbreakers.
So, to yesterday’s ruling: Arizona’s law was a result of the federal government’s refusal to enforce existing immigration law. It was a law born of frustration. Arizona is a border state. Non-enforcement was causing strains on the state that for the most part, non-border states didn’t have to deal with. And, after numerous appeals to the federal government to enforce the laws of the land, the state took the drastic step of passing its own laws that mirrored the federal statutes.
Yesterday the Supreme Court struck most of them down. I understand and don’t necessarily disagree with the basis of the ruling. I understand the importance of the “supremacy clause”. But I also understand when it is improperly used – in this case to not enforce existing law. That is not a choice made by an administration dedicated to the rule of law. That’s the choice made by one which is driven by an ideological agenda.
To make the point, yesterday after the ruling, Homeland Security, the executive agency that ICE falls under, made it clear that it would not cooperate on section 2 (b) of the AZ law, the section the Supreme Court upheld, effectively nullifying it:
The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.
Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport…
Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, ICE will tell the local police to release the person…
On Monday the administration officials also said they are ending the seven 287(g) task force agreements with Arizona law enforcement officials, which proactively had granted some local police the powers to enforce immigration laws.
Or, more simply, the President has directed his agencies not to enforce the law of the land, a clear violation of his oath of office, but in full compliance with his recent enactment of the “DREAM act” by fiat.
By the way, that raging righty, Mickey Kaus updates us on what the real results of Obama’s decision concerning a certain type of illegal really means:
The maddening details of Obama’s DREAM Decree are becoming clearer. As this CIS report notes, 1) The decree doesn’t just apply to illegal immigrants who were “brought to this country by their parents.” It also would give work permits to those who snuck across the border by themselves as teenagers. “Through no fault of their own” is a talking point for DREAM proselytizers, not an actual legal requirement. 2) The same goes for the phrase “and know only this country as home.” That’s a highly imaginative riff on the decree’s actual requirement, which is for 5 years “continuous residence.” It turns out “continuous residence” doesn’t mean what you think it means. “Immigration attorneys have been successful in getting immigration courts to whittle this down to a point where it is almost meaningless,” says CIS’s Jon Feere. As an illegal immigrant you can go back
homeabroad for multiple 6-month stints during those five years–but, if precedent holds, in Janet Napolitano’s eyes you will still “know only this country as home.” …
He has a couple of updates that are worth the read as well that show this for the broad attempt at amnesty it really is.
Look … this may indeed be how it all ends up, but this isn’t how it should be done. There’s a clear, legal and Constitutional path for changing laws we don’t like or think need to be changed … that is if we are a nation of laws.
Barack Obama seemed to think that was important once:
I believe that we can be a nation of laws and a nation of immigrants.
Now? Not so much.
So here we have the nation’s chief law enforcement officer refusing to enforce the law.
His excuse is he’s frustrated with the lack of movement in Congress (of course he’s exerted no leadership or effort to resolve the issue)?
Hey, wait, wasn’t that the same sort frustration Arizona expressed about the administration’s refusal to enforce the law of the land?
So why is Obama’s refusal to enforce the law rewarded while Arizona’s attempt to enforce it isn’t?
Because George Orwell is alive and well and renaming his book “2012”.
That, at least to me, is the pregnant question. He had a number of other options but 4 months from a critical election, chose the most controversial and potentially damaging one.
Let’s begin with a quote from a former White House counsel from a Powerline post:
Even with his fawning press, [President Obama] will pay a price for this one. He knows this, meaning that the documents now to be withheld must be dynamite. They have to show either that Holder knew what was going on with Fast and Furious and approved it, or that he directly committed perjury in his Congressional testimony, or both. I just can’t see any other explanation for such a risky move.
Wasn’t the Washington Post just covering big time the 40th anniversary of Watergate? I wonder how much coverage this one will get.
That’s the result of the move – speculation that the documents being withheld point to perjury by Holder or the President, or both.
So let’s break this down a bit. If it was all about Holder, why would the president risk this sort of a controversial move this close to an election. It’s not like he’s never thrown anyone under the bus. In fact James Carville is on record advising Obama to dump Holder.
Obama had the option, then, of letting Holder face contempt charges (not much happens as we’ve seen in the past, to those who are served with contempt of Congress charges) and drag out the document release until after the election.
With the election season gearing up, it is likely that while the controversy would have been an issue, it wouldn’t have been a major issue. Now it certainly is.
He could have asked Holder to resign. He could have then used the opportunity to appear as a statesman, a leader and bi-partisan all in one fell swoop. Depending on how he handled that it could actually have been a positive for him heading into an election. In the meantime, an acting AG could continue to delay on providing documents.
But he did neither of those things. For some unknown reason (at least to this point) he chose to do the least likely and most politically damaging thing – invoke executive privilege. As the lawyer quoted has said, those documents must be “dynamite” to have the president make this move.
And, unsaid by the lawyer is the speculation that the documents show the involvement of the White House to a degree that is damaging – apparently more damaging than the speculation and attention this move by the President has brought.
David Kopel at Volokh Conspiracy gives you a great history of the controversy. As for the documents Kopel notes:
According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.
Matthew Boyle at the DC caller points out that Holder has retracted two previous statements he made to Congress where he gave them inaccurate information in an attempt to blame previous AGs or administrations. It seems that’s a standard operating procedure with all parts of this administration. So Holder is left holding the bag all by himself on this one, or so it seemed, at least, to the point that executive privilege was invoked.
That brings us to these 4 point by Todd Gaziano at the Heritage Foundation about the use of executive privilege:
First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.
Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.
Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.
And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).
The key point, of course, is executive privilege cannot be used to “shield wrongdoing”. While it is speculative, it appears highly likely – given the other options available – that executive privilege is being used for precisely that reason in this case.
Additionally, given the choices available to the President, it is not at all out of bounds to speculate that the most transparent administration in history is trying desperately to hide something even more terrible than the political fallout from this choice.
The White House cites internal discussions and ongoing investigations are the reason for its denial and claims the investigations would be jeopardized with the release of the documents. But, as Gaziano points out, accommodations can be made in that regard. The total number of documents requested is 1,300. The White House is simply refusing to cooperate or accommodate.
We’re still left with that question.
And the answer, given the actions to date, lead to some logical speculation – what is contained in those documents is much more damaging politically than the damage done by the decision. Additionally, Obama can’t afford to let Holder go because if he does there’s the potential that Holder will then spill the beans.
Oh, and finally, this move has suddenly brought Fast and Furious to page one and the top of the newscast like nothing else could. The majority of the country, which was mostly ignorant of this scandal are now in the loop.
As the cited former White House counsel said, “the documents now to be withheld must be dynamite.” In fact, they must be so explosive that the White House is desperate enough to try to weather this self-inflicted political storm in lieu of exposing them.
That says a lot.
I’m sure no one is surprised that the most transparent administration in history has chosen to invoke executive privilege in the Fast and Furious investigation being conducted by Congress and deny that institution it’s ability to conduct its oversight responsibility.
Here’s President Obama as candidate Obama in 2007 talking about the use of executive privilege (btw, irony alert – note the CNN banner – the answer? No.):
That was then when it was the GOP’s fat in the fire. However, now that it is his and Eric Holder’s that’s being roasted, well that’s different.
Sen. Charles Grassley (R., Iowa) criticized the White House. "How can the president exert executive privilege over documents he’s supposedly never seen?" Mr. Grassley said.
At issue are Justice Department documents that Messrs. Issa and Grassley have sought and that the department resisted turning over in the congressional investigation into a botched gun-trafficking probe called Fast and Furious. The department said the documents reflected internal deliberation or were related to continuing criminal investigations and therefore weren’t subject to congressional subpoena.
Of course no one knows if any of that is true (or true of all the documents requested) since no one outside the Justice Department is able to inspect them. And this was an operation that AG Holder characterized as a “low-level operation”. Now, suddenly it needs executive protection? Seems like a heck of a sudden escalation in “levels” doesn’t it?
Apparently the decision to invoke executive privilege came after a meeting between AG Holder and Rep. Issa:
Messrs. Issa and Holder met Tuesday for 20 minutes. From their accounts, it has become a game of chicken, with each side insisting the other act first to resolve the standoff.
Mr. Holder said Mr. Issa rejected his offer to provide documents because the lawmaker wouldn’t agree that they would fulfill a subpoena, effectively ending the contempt threat. Mr. Issa said the attorney general didn’t come prepared to provide documents and that the contempt threat can’t be removed until the documents are produced.
Holder then proceeded to take the documents off the table via the President and executive privilege.
Mr. Grassley said Tuesday night: "The attorney general wants to trade a briefing and the promise of delivering some small, unspecified set of documents tomorrow for a free pass today. He wants to turn over only what he wants to turn over and not give us any information about what he’s not turning over. That’s unacceptable. I’m not going to buy a pig in a poke. Chairman Issa is right to move forward to seek answers about a disastrous government operation."
Contempt of Congress should now move forward. Frankly, Holder has been contemptuous of the law since the first day he took the office of the Attorney General.
And, for most folks, human nature says that those who have something they don’t want known have a tendency to try to hide it. Whether true or not, that’s how it appears … just as it did in the example in the video when Obama spoke out against the use of what he invoked today.
Matt Burden came up with my favorite bit of irony today as concerns this burgeoning fiasco:
Okay, I want to know what freaking idiot leaks all kinds of classified operations putting military, civilian agents, and allies at risk but pulls EXECUTIVE PRIVILEGE on Fast and Furious documents (that AG Holder said was a low level op)?!