The Inquisitor Speaks: A Modest Memo

To: My fellow warriors for collective harmony, social justice, and a brighter future for all
From: Adam Roquet, Associate Executive Inquisitor and Tutor for Indoctrination in Advanced Inquisitorial Methodologies

Dear Colleagues,

In light of our stimulating conversation in the breakroom the other day, I thought I would write up the following memo to summarize my position on this all-important question: What shall we do with our witches? I apologize again if the flecks of quinoa that sprayed from my mouth during our conversation were interpreted by anyone as a microaggression. In the future, I will be sure to swallow before I speak.

In the days of old, inquisitors would burn, strangle, behead, and otherwise terminate the lives of witches. Recollection of that fact--and praise for it having now been discontinued--occasioned our conversation in the first place. While I for one am always glad to recognize the benightedness of the past, I think we should also be wary about throwing out the baby with the proverbial bathwater.

As they understood in Salem, Spain, and elsewhere, witches are a tricky lot. Because their influence can be so problematic, we have to be vigilant. A witch is tainted at the very heart of its being (what more primitive times would call a "soul"), and the Inquisition must be willing to monitor hearts for any sign of witchcraft. A single word can reveal someone to be a witch. What matters is the identity of the witch, not what a witch does. Words, thoughts, actions, feelings--anything can reveal a witch, and we need to be on guard for all.

Technology may be responsible for so much ecological destruction, but it has provided numerous opportunities to our Inquisition. The advent of advanced recording technologies has afforded so many more ways of monitoring the speech and thoughts of witches. The rise of mass media has given us the ability to focus on a single incident of witchcraft and turn the wrath of society against that witch, and the Internet has democratized the Inquisition, providing us with numerous surrogates with which to target and punish. The Internet never forgets, so a witch can never escape its sentence.

However, the very totalizing tendencies of the media combined with a permanent, centralized institution of cultural memory have posed a significant issue about what to do with witches. In the old days, a witch’s perfidy would not necessarily be universally broadcast. If shunned, the witch could go elsewhere. Now, a witch cannot escape once it is found out. So how will a witch live once convicted of witchcraft?

Let us take the following hypothetical: A witch has revealed its problematic core (by saying something problematic, dressing in a problematic way, having a problematic tattoo, liking a problematic book, and so forth), and the full wrath of the Inquisition has been turned against it. It has rightly lost its job or been expelled from its university or its business has been destroyed or whatever. It rightly stands as a beacon of shame and bigotry. It is rightly recognized as the less-than-human scum that it is. So what should be done with our witch?

Shall the witch get a new job? Our Inquisition has surely failed if a witch can get a new job after being terminated from an old one because of its witchcraft. Wickedness has stamped the witch with an indelible mark. Shame should follow the witch wherever it goes (ah, the glories of the Internet!). Who would want to employ this monster? Who would want it as a student? No decent person or socially conscious institution.

Exiled from the marketplace and the public square, the witch will rightly be unable to support itself. Perhaps the witch might turn to its family for financial support. But this again presents a problem for our Inquisition: Nothing--including family ties--should stand in the way of Inquisitorial justice. If its family supports a witch, they should be shunned and attacked, too. Perhaps its family can be blamed for making it a witch. Those who choose to aid a witch, whether family or friends or disinterested bystanders, are guilty of enabling witchcraft.

Exiled from employment and shunned by its family, should the witch get on public assistance? There, we have an ultimate irony: public funds being used to care for someone who is the enemy of the public. Public funds should be used to assist those who are victims of society--not witches.

Some of my esteemed colleagues have held out for the hope of reeducation. They believe that perhaps a witch can redeem itself by bowing before the might of the Inquisition and kissing the toes of the just. According to this theory, a witch’s brain can be cleansed of impure thoughts, and paying sufficient tribute can testify to this cleansing. I fear that reeducation falls short on a few levels. Thankfully, we live in a zero-tolerance age, but holding out the hope of pardon might suggest to potential witches that they could actually have a life after their witchcraft is revealed. That seems to me to be tantamount to encouraging witches. Witches likely have distorted personalities (as some psychologists have shown), so I am very doubtful that they can be saved. Very likely, their witchcraft would only reassert itself in more subtle ways. And besides, why should a “former witch” (if such a thing is even possible) have the opportunities of a true member of the community? While reeducation can show the power of the Inquisition, it might also provide aid and comfort to witches and their allies. The Inquisition is not in the mercy business but the justice one, and justice allows for no half-measures.

So a witch has been denied all hope of employment and of comfort from family and friends. It should have no access to public assistance, and reeducation is a doubtful prospect. The only remaining alternative for a witch (assuming it does not try to adopt another identity) is to live on the streets. While I am second to none in applauding the public immiseration of witches as a tool for instructing the masses, homeless witches could pose a security threat to the innocent. They could also continue to peddle their problematic witchcraft. Moreover, these disgraced witches would, no matter how small their footprints, contribute to the destruction of this earth through their consumption of various ill-gotten goods. (The long-term imprisonment of witches presents similar ecological, financial, and moral costs.)

Therefore, I wonder if the execution of witches might be a practical--and I daresay humane--solution to the problem of witches in the era of our beloved Inquisition. Execution would solve the problem of what to do with undesirable life and it would still provide an edifying spectacle to the nation as a whole. And I cannot see how it would be to the detriment of the Inquisition to offer witches an instantaneous death as opposed to a long twilight of suffering and exclusion. This death need not be burning. I am open to other suggestions, whether beheading or electrocution or lethal injection. Just because a witch is the embodiment of the horrific does not mean that we need to be barbaric in treating it.

A brief trigger warning: what I am about to discuss might shock, offend, and, even traumatize. But we Inquisitors must sometimes face unflinchingly the utmost of malignancies. Some partisans of the atavistic (may they soon perish!) might object to the righteous punishment of witches. They hold that, while we can censure certain actions, we should be wary about exiling people from the public square for their mere words or thoughts--that stamping out evil is different from crushing people. In defense of this position, such partisans argue that we are all fallen beings, that we are all sure to make mistakes, and that understanding is often better than wrath. They claim that what we term witchcraft others might think of as a fair-minded exploration of ideas and that different people might see different things as witchcraft. They suggest that our Inquisition, with its focus on punishing witches, can distract from the broader purpose of doing good and finding the truth (their words, not mine). They think that fear is often an insufficient goad to virtue and that escalating terror is no boon to society. Some of them even argue that tolerance has a positive value (not recognizing that tolerance is simply an acceptance of wrongs).

The preposterousness and perniciousness of such arguments make them beneath all rational regard. In fact, I rather believe that advancing them is a de facto admission that one is a witch. Nothing more need be said about those silly propositions (though much could be said and done to those with the temerity to make them).

Thus, my fellow fighters for justice, I believe that the principles of our Inquisition lead to the conclusion that terminating the lives of witches is the most practical of outcomes. The instant a witch reveals itself with its forked tongue, it should be expunged from the record of human history. Let us never shirk from the obligation to use terror to advance the cause of justice, nor allow doubting scruples to hold back the ambitions of perfection.

Taking the Fifth

Today, the Fifth U.S. Circuit Court of Appeals granted the Obama administration a request for an expedited appeal of Judge Andrew Hanen's decision to put an injunction on the president's executive dictates on immigration at the end of last year.  Hanen had put the injunction in place while he worked on his final ruling on the matter.  The Fifth Circuit may or may not decide to stay Hanen's injunction.  The hearing will take place on April 17.  The text of the Fifth Circuit's decision is here.

As Josh Blackman has noted, the Obama administration has now taken to arguing that Hanen's injunction threatens the ability of the president to protect the nation because granting work permits to illegal immigrants is of vital national-security importance.  If it is such a vital interest, the Obama administration needs to explain why it has put off issuing these work permits for years (and also how granting work permits to illegal immigrants specifically advances national security).  Hanen seemed skeptical about claims that national security demands that the president nullify immigration law, so we'll have to see whether members of the Fifth Circuit will be persuaded by the administration's reasoning.

The next few weeks might tell us whether the Fifth Circuit will sign off on a radically empowered executive or whether it will instead put in the hard work of defending the separation of powers.

Taking on the Judiciary

In the New York Times, University of Chicago law professor and former Chief Justice John Roberts clerk William Baude argues that one way the president could get around a negative ruling in King v. Burwell, the pending ACA case, would be to say that the ruling only applies to the plaintiffs.  So, even if the court strikes down subsidies, it would only affect a few people.

Josh Blackman takes apart this claim by looking at the implications of it:

Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials. The implications of this argument are frightening. The executive branches of the states and the federal government could concoct an infinite number of technicalities to explain why a Supreme Court decision is not binding on them. This breach of the separation of powers would trigger a dangerous race to the bottom, where one state after another would find ways to ignore the jurisdiction of the federal courts.

Blackman's remarks remind us of the importance of norms in maintaining a Constitutional balance of powers.  And the decay of those norms could lead to a radically empowered executive, one who is unbound by the courts and the Congress, as well as to a kind of procedural anarchy.

Constitutional Controversies

At Postmodern Conservative over the past week, Carl Eric Scott has offered a series of intriguing reflections on some possible outcomes for traditional constitutional norms over the short term.  He guesses at what could happen to existing constitutional arrangements under three circumstances: Republican victory, divided government, and Democratic dominance.  Whether you agree with them all or not, these remarks are well worth a read.  He hasn't yet posted his remarks on the third scenario, but here are the essays he has published in this sequence so far:

• Late-Republican Times: A Long-Term View
• Late-Republic Studies: Three Scenarios for the Short-Term 
• Marginal Republican Dominance
• The Divided Government Scenario

Ready for Hillary?

As a piece of political theater, Hillary Clinton's press conference at the UN today would not exactly garner a standing ovation.  From its scheduling issues to Secretary Clinton's statement and responses to reporters, this conference will likely provoke the media, give more ammunition to Republicans, and cause more doubts among Democratic powerbrokers.

This presser did not exorcise the ghosts of the 90s.  If anything, it conjured them anew by reinforcing preconceptions of the Clintons as secretive, bunkered, and too enamored of legal/ethical gray areas.

Exhibit A for the backlash this presser could generate is the following tweet by the New Yorker's Ryan Lizza:

Not trolling but I personally thought email story was mostly bogus until watching this press conference and learning how she handled this.
— Ryan Lizza (@RyanLizza) March 10, 2015

Perhaps most strikingly, Secretary Clinton said that she did not keep the approximately 30,000 "personal" emails she kept on her private server.  In addition to the questions about the criteria Clinton used to distinguish "personal" from "professional" email, it remains unclear why someone would normally want to delete so many personal emails.

An interesting loophole in Clinton's remarks is her insistence that she never sent any classified email.  But that statement says nothing about whether she sent any sensitive email or whether she received any classified/sensitive email on her account.  Email that she received could still be vulnerable to being hacked by a foreign power.

Clinton laid down a marker: the private email server remains private.  She could be at risk of boxing herself in here.  If she continues to keep it private, she will be perceived as stonewalling.  But if she later hands it over to the public, she will be seen as on the run.

She also insisted that her private email server had suffered no security breaches---though we don't know how she can verify that (or how we can verify her statement).

Already, Clinton has begun to run into trouble regarding potential conflicts between her statements during this presser and some of her earlier remarks.  For instance, Clinton said that she used a single email account because she didn't want to carry multiple devices, but a few weeks ago she seemed to imply that she carried multiple devices.

After a week of refusing to address the homebrew email situation, Clinton has now provoked more questions than there were before.  A key threat facing Secretary Clinton is the fact that this imbroglio could further shake the faith of the Democratic establishment in her.  Despite the media narrative of Clinton as Ms. Establishment vs. Obama the Outsider during the 2008 Democratic primary, many key institutional Democrats were covert opponents of Hillary Clinton (as Game Change documents).  Obama's victory in the primary in part depended upon the Democratic institutional lack of faith in Clinton.

While 2016 had seemed initially like a coronation on the Democratic side, the homebrew email situation, if it continues to grow, could imperil Clinton's standing among many Democrats.  Based on the immediate reaction to this presser, Hillary Clinton has yet to show decisively that she can put this situation behind her and escape the shadows of the past.  And that could politically hurt her.

Defending Hillary

Over at NRO, I offer a brief outline of seven strategies Hillary Clinton allies will use to defend her private "homebrew" email network.  These include:

But, but the Republicans… (tu quoque). A venerable strategy for avoidance. Argue that the fact that Scott Walker and Jeb Bush had private email accounts means that we should have no questions about Hillary Clinton’s own use of private email. A variant on this approach, advanced by Jennifer Granholm on The Last Word earlier this week, is the claim that Secretary Clinton was following “precedent.” (This argument conveniently sidesteps the differences in positions and their respective legal obligations — especially the fact that her likely GOP rivals for the presidency were not responsible for handling crucial national-security information.)

An aide did it (deflection of responsibility onto the help). Another venerable strategy in politics. Aides are always responsible for all bad things, while principals are responsible for all good ones. Hillary’s a genial grandmother — how could she know anything about a scheme to circumvent federal transparency requirements using a private email server!?

Read the rest here.  And see how many you can spot over the next few days.  Of course, I'd be glad to hear about any strategies that should be added to the list.

150 Years Later

One hundred fifty years ago, Abraham Lincoln delivered one of the great speeches of the Republic in his Second Inaugural.  After four years of a horrific war, when brother turned against brother and countryman against countryman, Lincoln spoke.  Hundreds of thousands of Americans had lost their lives.  The Civil War had not yet been won, but it was being won.  Within five weeks, Lee would surrender at Appomattox.  Within six weeks, Lincoln would be dead.  But the Union would be preserved.

Standing against the backdrop of that awful war, Lincoln outlined some of the forces that fueled the war, especially the topic of slavery:

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease.

But one of the most profound things about Lincoln's address is what it does not explain.  He ponders the mystery of all that bloodshed and the unfathomableness of the spectacle of human suffering.  He wonders at the understanding of a divine purpose in the terrible war:

If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."

The Civil War came, Lincoln says, and he and his fellow countrymen had to suffer through the consequences of that coming.

Lincoln closed the Second Inaugural with a call to continue in the enterprise of the Republic:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

The task of defending the Republic is in part the work of striving on: to not succumb to pride or despair, to continue to try, to grow, to care, and to believe.

In the aftermath of the Civil War's bloody flood, Lincoln urged his listeners to set about the business of rebuilding the Union.  It is our obligation to continue that enterprise of civil renewal in the name of freedom, justice, virtue, and happiness.

Constitutional Collapse---or Decadence?

Reflecting on Matt Yglesias's warning of an impending constitutional crisis, Dylan Matthews and Ross Douthat both doubt that the U.S. will suffer a presidential coup.  But they each offer their own thoughts about increasing executive power.

Matthews, who is not a fan of the American constitutional system as it currently stands, believes that presidents will increasingly take more power for themselves.

The best-case scenario is that we wind up with an elective dictator but retain peaceful transitions of power. This is where I'd place my bet. Pure parliamentary systems, especially unicameral ones, give high levels of power to the prime minister and his cabinet, and manage to have peaceful transitions nonetheless. The same is true in Brazil, where the presidency is considerably more powerful than it is in the US.

Douthat is a bit more hopeful about the viability of the U.S. constitutional system, but he also fears that both parties in Congress will essentially acquiesce to the system of executive supremacy.  He outlines a case of what he terms "constitutional decadence":

Which is not to say that external events — terror, war, economic crisis — might not intervene and push the system closer to the breaking point. But we’ve had a number of stress tests over the last ten years, and for all the paranoia and political dysfunction they’ve produced, both our leaders and the voting public have tended to circle back to something like the status quo. That status quo may be flawed, sclerotic and corrupt (ahem, Hillary), but the country as a whole seems invested in muddling along with our system in a way that, say, Germans in the Weimar era or Americans during the antebellum crises ultimately were not. So even though what Yglesias is describing is a problem, and potentially a big one, it could easily give us an extended period of what you might call constitutional decadence, rather than ending soon in crisis or collapse.

Instructive is the fact that figures on both the left and the right agree that a kind of evolving executive powergrab is taking place.  Every week, it seems as though the Obama administration is proclaiming a new issue that can be addressed through executive action, whether it is gun control, tax increases, or whatever other policy aim the president has at the moment.  As the courts consider ruling on some of the president's executive actions, they are surely paying attention to this broader structural context.

UPDATE: Leon Wolf raises his own concerns about threats to constitutional norms:

The new reality in America is this – unless Congress is someday composed of two-thirds members of the opposite party of the President (which is an increasingly remote possibility in our increasingly polarized country), the President can from now on do whatever he wants. Only the Supreme Court remains with the power and the will to stop him, and only then when it feels like it or is ideologically opposed to what he has done. The most democratically responsive branch of the Federal Government now exists for the almost exclusive purpose of determining who receives the largest share of the taxpayer money with which the taxpayers are to be bribed for their re-election. Before long the executive branch will be likewise emboldened to act in regular defiance of the judiciary, as it currently is of Congress, and who will stop it then?

Constitutional Renewal---or Doom?

In National Review today, I make a case for the importance of strengthening the civil compact to advance the cause of political liberty.

Conservatives might think of the task of the present as going beyond shrinking the size of the federal government: Instead, it involves the nurturing of those institutions, norms, and principles that make the life of a free republic possible. This nurturing does not relate only to policy or affairs of the state, but politics does play a role in it. Some of the key traits that have helped support the American republic include the respect for our individual dignities as human beings, religious and cultural pluralism and toleration, a vibrant middle class, a sense of accessible opportunity, a respect for past achievements, and a hopefulness for the future. Many of these traits have been challenged in recent years, and many could be strengthened anew.

Serendipitously, Matt Yglesias at Vox makes a rather different case, arguing that American democracy is "doomed."

I'm a bit more optimistic than Yglesias and will (hopefully) have some more thoughts on the matter soon.

DHS Scuffle

Since Senate Democrats have filibustered efforts to fund the Department of Homeland Security, Senate Majority Leader Mitch McConnell has agreed to offer a DHS bill that funds the president's executive actions on immigration.  After this vote on DHS funding, Senate Republicans would propose a separate measure targeting the president's actions.

But now Senate Democrats might not even be happy with this turn of events, as Roll Call reports:

In an extraordinary sequence of events, Senate Majority Leader Mitch McConnell offered Democrats exactly what they have been asking for Tuesday — “clean” full-year funding for the Department of Homeland Security. And Minority Leader Harry Reid said “no” — or at least, “not yet.”
McConnell’s offer of such a bill shorn of provisions blocking President Barack Obama’s recent immigration executive orders — which he said could happen quickly with Democratic cooperation — was put on hold by Reid, who said he was waiting to hear Speaker John A. Boehner agree to pass it through the House first.
“We have to make sure that we get a bill to the president,” Reid said. “Unless Boehner’s in on the deal, it won’t happen.”
That could lead to the extraordinary circumstance of Democrats blocking a bill they have insisted on for weeks — though a Democratic aide suggested later Tuesday that Democrats might, in the end, agree to McConnell’s proposal, provided the Kentuckian can get Republicans lined up for a unanimous consent request to vote on a clean bill.

It is unclear whether Senator Reid will go through with his threat to block a vote on a bill he supposedly supports.  What is clearer, however, is the uneasiness of many House Republicans with this plan.  Time will tell whether the House will support a DHS bill that funds the president's executive actions.

GOP Can't Coast

Bill Kristol turns to a recent CNN/ORC poll, which finds that a majority of voters think of Hillary Clinton as representing the future.  No Republican candidate mentioned in this poll equals that number.  This is just one poll and numbers can change, but American presidential elections are often about the future, so this finding should concern Republicans.  As Kristol writes:

It’s of course very early in the 2016 cycle. But it’s never too early for some healthy alarm. Are we the only ones who are struck that many of the leading Republican candidates, whether moderate or conservative, seem to be planning stale and tired campaigns? Hillary will herself, it’s safe to predict, run a stale campaign with tired themes. But the polls suggest she would prevail in a conventional matchup of boring campaigns.
We’re all free to ignore the fire bell in the night, and hope for the best. But it would be a shame to have to explain in November 2016 how the Republican party decided to sleepwalk to defeat.

If conservatives hope to win in 2016, imagination and energy will be crucial.

Injunction Junction

Federal judge Andrew S. Hanen has enjoined the Obama administration from implementing its November executive actions on immigration until after he has ruled on the case.  Here's a round-up of some coverage:

• Josh Blackman analyzes some of the details of Hanen's 123-page ruling.
• Patrick Brennan suggests that the battle over the constitutionality of the president's executive actions is far from over.
• Bill Jacobson looks at the implications of this ruling for the DHS funding battle.
• Senate Democrats seem inclined to continue to block debate on DHS funding.
• Ilya Somin challenges some parts of Hanen's ruling.
• The Obama administration plans to appeal.

Don't Kill the Filibuster over DHS

Because Senate Democrats have continued to filibuster a bill funding the Department of Homeland Security, some House Republicans have called upon Majority Leader Mitch McConnell to "go nuclear" and eliminate the filibuster.  One can understand the desire of members of Congress to strike back at executive overreach, but invoking the "nuclear option" would be a mistake for a few reasons.

First, it would not eliminate the real roadblock, which is President Obama's decision to veto any funding bill that defunds his executive overreach.

Second, going nuclear would violate regular order in the Senate.  If we mean the Senate to be the body of deliberation and consensus that the Founders intended it to be, maintaining a respect for regular order (which requires a 2/3 vote of the Senate to change rules) will be crucial.

Third, the filibuster itself may play a role in maintaining the Senate as an institution of consensus, so jettisoning it would be a risky proposal indeed.

Going nuclear on the filibuster could do grave structural damage to the traditional role of the Senate and would not really help get DHS funded.

At the moment, many Senate Republicans, including the Majority Leader, seem to have no interest in going nuclear.  Rebuilding the Senate after the recent deviations from traditional norms has been a key goal of Senator McConnell, and going nuclear would set that enterprise back considerably.

The Slippery Slope of "Hate Speech"

Edward Schumacher-Matos, NPR's former ombudsman, offers the following thoughts about freedom of expression in his valedictory post:

The French news media may have their ethical standards, but they are not American or sacred universal ones, and they shouldn't be French ones either. The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn't know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.
In this case, the competing social and constitutional demand is the control of hate speech in the interests of social cohesion, without which the very idea of a nation is impossible. Look at the sectarian bloodbath that is the Middle East. Or look at the tensions in China, Myanmar, Ukraine, Nigeria, the Balkans, and elsewhere. Nothing guarantees that different peoples can live together, or that nations will remain as we know them.
The United States is the ultimate multi-ethnic, multi-sectarian society. It has sinned mightily against slaves and immigrants, but has managed to hold itself together through imposition by a civil war, an evolving sense of morality, and yes, political correctness in how we treat each other. Laws followed along.
I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods. The NPR editors were right not to reprint any of the images.

Leaving aside the question of America's "sins" against immigrants (and whether those "sins" are in any way equivalent to the wrongs done to slaves and their descendants), let us consider Schumacher-Matos's riposte to what he terms "First Amendment fundamentalists."  These remarks are worth considering not only because of Schumacher-Matos's professional stature but also due to the fact that they are representative of a broader worldview.

As a matter historical fact, the U.S. has not always had absolute freedom of the press.  Governments at all levels---federal, state, and local---have taken acts that have suppressed speech.  However, there is a big leap from that historical fact to the theoretical principle that "hate speech" is not and should not be protected by the First Amendment.

Schumacher-Matos seems to operate from the presumption that a government prohibition of certain kinds of inflammatory speech will act as a force for social cohesion, but one could rather claim that free expression and the free exchange of ideas can actually lead to a more tolerant and socially coherent society.  The U.S. has never had a ban on hate speech, yet, over centuries, an increasingly diverse range of individuals have indeed been assimilated into the whole of the American republic.  Free expression---even of ugly sentiments regarding race, religion, and so forth---was also compatible with an integrating society.

In fact, arbitrary government classifications of "hate speech" could inflame rather than soothe social tensions.  It's much easier to feel oppressed and wronged by another group when that group uses the power of government to suppress your expression.  And that brings us to a key challenge to any idea of banning "hate speech": there is no clear limiting principle.  Free-speech law in the U.S. is complicated enough.  Holding to a "hate-speech" exception to free speech would make free-speech law impossibly complicated---so complicated that any exercise of government power to ban "hate speech" would likely seem quite arbitrary.

Schumacher-Matos seems to take for granted that, of course, the cartoons of Charlie Hebdo are "hate speech" unprotected by the Constitution because they "make fun, in often nasty ways, of [various religions'] prophets and gods."  But, if that is so, surely many other works must also be banned: South Park, nearly all of Christopher Hitchens, many George Carlin and Bill Maher jokes, James Joyce's novel Ulysses, much of Nietzsche, numerous tracts by Voltaire, and so on.  To seek to use the law to ban anything that critiques certain sacred figures is to suppress a vast range of works.

Certain critiques of religious figures may indeed be misguided.  Offensiveness for its own sake can often be juvenile, self-indulgent, and tiresome.  Moreover, there is much to be said for courtesy as a civil virtue, as Schumacher-Matos implies.  But none of those considerations nullify the importance of a legal right to free expression.  "Hate speech" may often be ugly, but efforts to ban it can lead to results that are even uglier.

(See Charles C. W. Cooke for more about the dangers of opposition to the right of free speech.)

Middle-Class Populism Is More Than Redistributionism

In a thoughtful New York Times essay, Thomas B. Edsall argues that a major hurdle for a Democratic middle-class populist agenda is the fact that the Democratic coalition depends increasingly upon the affluent.  This poses problems, Edsall argues, for redistributionist proposals:

Middle-class populism, however, raises a host of problems for the Democratic Party. When the middle-class populist message is turned into actual legislative proposals, the costs, in the form of higher taxes, will be imposed on the affluent. Such a shift in the allocation of government resources threatens the loyalty of a crucial Democratic constituency: well-off socially liberal voters.

However, policies that tax the rich and give to others are not the be-all and end-all of policies that could improve the standing of the middle class.  Market-oriented proposals to reform the health-care system, for instance, could provide the average American with cheaper and more effective health-care.  Putting in place policies that would help drive down the cost of energy could similarly appeal to families in the economic middle.  Curtailing guest-worker programs and reducing the flow of illegal labor could also improve the employment prospects of many Americans.  And those are only some of the ways in which decisions about regulation and the administration of government could advance the cause of middle-class economic uplift (for more, see, of course, Room to Grow). 

Edsall makes some very suggestive points about why tax-and-spend redistributionism might not be politically promising, and I don't mean to discount the real political tensions and trade-offs of some pro-middle-class policies.  But conservatives can take heart that imaginative reforms can improve the conditions of the middle class without pitting it against the wealthy.  Moreover, the rich would also benefit from the economic growth generated by a recharged middle class.  So a pro-middle-class agenda could provide economic benefits for the nation as a whole--from the bottom to the top.

How Many Democrats Are Flip-Flopping on Executive Power?

Over at the Corner, Mark Krikorian notes seven Democratic/Independent senators who were skeptical of President Obama's use of executive power on immigration but who now refuse to allow debate on a DHS bill that does not fund the president's actions:

Joe Donnelly (IN)
Al Franken (MN)
Heidi Heitkamp (ND)
Angus King (I, ME)
Joe Manchin (WV)
Claire McCaskill (MO)
Mark Warner (VA)

To those seven, we can also add New Hampshire's Jeanne Shaheen and Montana's Jon Tester.

In Senator Shaheen's case, she spoke out strongly against the president taking sweeping executive action while she was running for reelection.  In a debate in October 2014, Shaheen explicitly stated, "I don’t think the president should take any action on immigration."  A top advisor specifically told the Washington Post that Shaheen "would not support a piecemeal approach issued by executive order."  Tester also expressed his desire for Congress, rather than the president, to act on immigration.

But now Senators Shaheen and Tester, along with seven additional senators, refuse to allow debate on a DHS funding bill because the current DHS bill does not fund the executive actions they opposed in the past.

Testing up in the Air?

At NRO, I look at the possibility of rolling back federal testing mandates in revising No Child Left Behind:

In January, the Senate began to examine NCLB, taking up the question of whether to revise it, and the House will probably vote on revisions to NCLB later this month. This effort might not go anywhere. After all, past Congresses have tried and failed to revise NCLB. But let’s hope it’s not another dead end, because reform could help create an educational system that is more responsive to local communities.

High-stakes standardized tests were at the center of No Child Left Behind, and any revision of the law would have to take into account testing practices. If Congress wishes to undo the Gordian knot of federal-education-policy red tape, it will have to revise federal accountability standards.

Read the rest here.

AG Nominee Raises Doubts About Enforcing Employment Law

The defense of the president's executive dictates on immigration usually requires proponents to twist themselves into pretzels, and Attorney General nominee Loretta Lynch was no exception to this general trend in her Senate testimony today.  Lynch even seemed almost unwilling to deny that the president could basically nullify any law at whim.

Beyond Lynch's vagueness about her beliefs regarding the limits of executive power, she also seemed to imply that she thought that the U.S. prohibition on illegal immigrants working violated their rights.  The following exchange between Lynch and Alabama Republican Jeff Sessions is a revealing one (transcript via Hot Air):

SESSIONS:
Let me ask you this: In the workplace of America today when we have a high number of unemployed, we’ve had declining wages for many years, we have the lowest percentage of Americans working, who has more right to a job in this country? A lawful immigrant who’s here, a green-card holder or a citizen, or a person who entered the country unlawfully?
LYNCH:
Well, Senator, I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here. And certainly, if someone here, regardless of status, I would prefer that they be participating in the workplace than not participating in the workplace....

This viewpoint represents a radical departure from decades of immigration law.  A key part of Reagan's 1986 amnesty was the trading of amnesty for new federal powers to punish employers who hired illegal immigrants.

As Politico reports, Lynch later tried to walk this statement back:

However, later in the day, Sen. Chuck Schumer (D-N.Y.) gave her the opportunity to clarify her statement and she said she didn't mean to suggest that it's legal for everyone in the U.S. to be employed.
"In my family as we grew up, we were all expected to try and find employment as part of becoming a responsible adult," Lynch said. "I was making a personal observation based on work ethics passed on by my family, not a legal observation."
Asked by Schumer whether immigrants have a right to work regardless of status, Lynch said: "No, there is not, to my knowledge.”
A Justice Department official told POLITICO that Lynch's original comments were intended to refer only to those authorized to seek employment and not to others.
"U.S. Attorney Lynch does not believe any right to work exists for those who have not been authorized to seek employment by the Department of Homeland Security, and she has aggressively prosecuted employers who have knowingly made illegal hires," said the official, who asked not to be named. "Sessions was asking whether citizens have an exclusive right to work in the U.S., and she was being mindful of the scores of categories of individuals who are eligible to work though they might not be citizens. But she certainly does not believe those who entered the country unlawfully and have no work permit whatsoever have any right to a job."

But the words of an anonymous official at Justice are a poor substitute for Lynch's own.

Some on the right, including John Hinderaker, have suggested that Lynch's remarks disqualify her from becoming AG.  Whether one agrees with that judgement or not, it seems clear that senators have an obligation to continue to sound out her beliefs on executive power and the ability of the federal government to regulate employment.  The principal officers of the Obama administration need to go on the record regarding their belief in and willingness to abide by constitutional norms.

Senate Democrats Threaten to Filibuster DHS Funding

A letter released by the Senate Democratic Caucus expresses the willingness of all Senate Democrats to oppose any Department of Homeland Security funding measure that forbids the enforcement of the president's recent executive actions on immigration.  Citing worries about national security and the president's threat to veto any DHS measure that rebukes his power grab, Senate Democrats demand a "clean" funding bill.  This letter also expresses a hostility to short-term funding measures for DHS.

Leaving aside the irony of senators threatening to filibuster a bill they say is vital for national security, it is also worth noting that many Senate Democrats appear to be unwilling to walk the walk when it comes to defending congressional power.  In the past, at least six Senate Democrats and one independent have expressed opposition to, or at least skepticism of, the president's actions: Democrats Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.V.), Claire McCaskill (Mo.), Jeanne Shaheen (N.H.), and Jon Tester (Mont.), and independent Angus King (Maine).  Many more Democrats trumpeted the dangers of an out-of-control executive during the administration of George W. Bush, though many now seem to have changed their minds about the role of executive power.  Apparently, some Democrats are now, despite their earlier promises, becoming partisans of executive supremacy.

In response to this threat, Senate Republicans seem to have at least three options:

• Call the Democrats' bluff and put forward a funding measure that pushes back against the president's power grab.  If Democrats do filibuster a national-security funding bill, let them pay the political price for that filibuster.  Republican leaders can then decide whether to offer a clean bill or to allow DHS to potentially "shut down."
• Preemptively give into Democratic demands and immediately offer a clean funding bill.
• Follow the strategy suggested by the editors at National Review: "Pass one bill to fund all of DHS except for U.S. Citizenship and Immigration Services, which is responsible for implementing the president’s amnesty, and another bill that funds CIS but prohibits it from implementing the November amnesty."  Senate Democrats did not explicitly say that they would oppose that proposal, and splitting CIS from the rest of DHS funding would eliminate the "national security" argument.

Testing, Testing

This week, the Senate began hearings about revising No Child Left Behind.  Tennessee Republican Lamar Alexander---the chair of the Health, Education, Labor, and Pensions Committee---has issued a draft text that would potentially reform testing standards.  Currently under NCLB, the federal government demands a set number of tests each year.  Alexander's proposal would potentially give states the option to devise their own testing standards and regimes.  Many across the political spectrum have been critical of the current emphasis on standardized testing, though the Obama administration has continued to defend the importance of annual standardized tests.

Molly Hensley-Clancy has an interesting look at the implications of NCLB and the reform of NCLB for testing companies.

Guest-Worker Tensions

Reports that Marco Rubio is potentially mobilizing to get into the GOP presidential race have provoked much speculation from pundits.  James Pethokoukis makes a very interesting case for Senator Rubio as "the Man With the (21st century, middle-class, conservative) Plan."  Pethokoukis finds much to celebrate in Rubio's latest book:

In his new book, American Dreams: Restoring Economic Opportunity for Everyone, Rubio outlines an economic plan that takes timeless conservative principles — faith, family, free enterprise – but adapts their policy manifestations to the current challenges confronting middle- and working-class America. For instance: As part of broader tax reform that would reduce anti-investment business taxes, Rubio would also provide immediate tax relief to families by expanding the federal Child Tax Credit. This reflects the economic reality that cranking up GDP growth, while a necessity, may no longer be sufficient to lift all boats — at least not right away. Macroeconomic trends such as globalization and automation are restructuring the American economy so that income gains are flowing heavily to those at the top. The Rubio plan, jointly developed with Sen. Mike Lee, also addresses the fundamental financial unfairness that parents — unlike childless adults – pay the taxes that support Medicare and Social Security while also investing in future taxpayers, their kids. There’s a lot more in the book, everything from innovative higher education reform to pro-work support for low-income families to anti-cronyist deregulation.

Many of Senator Rubio's ideas have merit, and it is worthwhile indeed to find modern solutions to contemporary problems while still keeping true to enduring principles.

However, there seems to be some tension between a pro-market, pro-middle-class approach to conservatism and a support for swelling the number of guest workers admitted to the country annually.  Senator Rubio was a major defender of the Gang of Eight immigration bill, which would have increased guest-worker numbers.  And he is a co-sponsor of the Immigration Innovation bill, which would cause a massive increase in the number of guest workers.  Guest-worker policies are usually not pro-market and are hardly pro-worker.

Republicans of all stripes would be wise to listen to Pethokoukis's call for a solutions-oriented conservatism.  And hopefully Senator Rubio, along with other possible Republican candidates for president, will be able to advance such a vision.  But it is unclear how advocating for more guest workers fits into an opportunity-oriented, middle-class conservative plan.

Romney Reunion Rumors

Eliana Johnson reports that many key players in Mitt Romney's inner circle are planning on meeting tomorrow:

The meeting will include members of the former Massachusetts governor’s inner circle: his son, Tagg, top aides Spencer Zwick and Matt Waldrip, longtime confidante Beth Myers, political consultant Eric Fehrnstrom, longtime pal Bob White, and adviser Ron Kaufman.

The Boston Globe notes the following: "Romney himself is not planning to attend, and one aide cautioned not to read too much into the meeting, saying, 'People are meeting all the time.'"

Running Against Washington

President Obama raised some valid points about the need for economic renewal for working Americans in tonight's State of the Union.  And there were some well-turned phrases, too.

However, there is a crucial tension in the president's remarks.  At the end of this speech, the president seemed to pivot to run against Washington:

So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for -- arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision.

Imagine if we broke out of these tired old patterns. Imagine if we did something different.
Understand -- a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

A better politics is one where we appeal to each other's basic decency instead of our basest fears.

A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.

This appeal to a "better politics" is all well and good.  However, it crashes into the fact that the White House and its allies have devoted considerable energy to demonizing its opponents.  The president may be trying to run against Washington, but, as chief executive, he has had a considerable role in shaping national politics.

Rather than better politics, we have all too often seen trolling politics out of the White House.  It is the president who has chosen the lonely road of executive supremacy rather than constitutional consensus.  It is the president who has often appealed to the resentments of class warfare.  It is the president's allies who constantly try to paint all opposition to the "progressive" cause du jour as the product of bigotry, narrow-mindedness, and greed.

Moreover, even as the president runs against Washington, his agenda seeks to concentrate even more power---for health-care, education, etc.---in the bureaucratic apparatus of the federal capital.

Fate of the Middle Class

Reuters surveys the economic landscape and finds that the middle class is still struggling:

The forces at work in the American economy appear so entrenched that Obama may be remembered as the president who pulled the nation from its worst downturn since the Great Depression, but failed to arrest deepening economic inequality.
The Federal Reserve, under Obama appointee Janet Yellen, has put money in almost all Americans' pockets with near zero interest rates that have held down mortgage payments, allowed companies to reinvest, and boosted job creation.
But the Fed's Survey of Consumer Finances shows how uneven the distribution of that stimulus has been. Between 2010 and 2013, as recovery took hold and stock markets soared, the average net worth of families in the top 40 percent of income earners grew. For all others average net worth shrank, declining 19 percent for the middle fifth.
Similarly, the average earnings for families in the top 10 percent grew more than 9 percent from 2010 through 2013, while those at other levels stagnated or shrank. For the middle fifth, average earnings fell 4.6 percent.
Over the six years through 2013, the middle fifth's average annual family earnings fell to $47,243 from $53,008 while their average net worth dropped to $170,066 from $236,525.

There are limits to what the president (or any government official) can do to shape the economy.  But it is not exactly clear how many of the president's policies---from Too Big to Fail to the encouragement of the growth of illegal labor---advance the interests of the middle class.  They may in fact hurt it.

The Big Picture

As House Republicans prepare a legislative package that would fully fund the Department of Homeland Security while denying funding for the president's fiats on immigration, Speaker Boehner makes clear that concern over a violation of Constitutional norms motivates much of the GOP's actions:

“Our goal here is to fund the Department of Homeland Security. Our second goal is to stop the president’s executive overreach,” he said. “This is not the way our government was intended to work. The president said 22 times that he didn’t have the authority to do what he eventually did. He knows the truth here and so do the American people.”

Along the lines of those norms, Joel Gehrke reports on a memo written by an expert at the Law Library of the Library of Congress to the Senate Judiciary Committee that makes clear the long tradition of the executive being obligated to enforce the law.  Even the kings of England could not nullify laws at a whim:

One hundred years before the American Revolution, another British king had “attempted to suspend a number of laws,” contributing to the onset of the Glorious Revolution in England, a senior foreign-law specialist at the Law Library writes in the memo to the Senate Judiciary Committee. “King George III,” the specialist goes on to remind the committee, “was thus unable to enact or repeal any laws unilaterally without the involvement of Parliament.”

Some of the president's allies may be cheering executive absolutism now, but the notion of an executive with absolute power runs afoul of many intellectual strands within the American political tradition.

On Toothless Hashtags

Today's terrorist attack on the French magazine Charlie Hebdo is an attack on the media at large and the principles of free expression.  Many have taken to social media, blogs, online publications, television, and other platforms to criticize this attack.

This criticism is no substitute for other kinds of actions that may need to be taken in order to bring the killers to justice and prevent future attacks of this kind.  Nor does tweeting a popular hashtag require the same amount of courage as does writing for a magazine that has been targeted by terrorist groups.  However, popular criticism of this atrocity does play a valuable role.  Terrorism in part operates by breaking the back of public opinion, cowing people into voluntarily giving into the arbitrary demands of a given set of terrorists.  By filling the air with fear, terrorism tries to undermine the public faith, tolerance, and conventional liberties of civil society.  Condemning this terror and expressing support for the principles of civil society are part of the defense of civil society.  And calling out those who would excuse this atrocity also contributes to defending the principles of civil society.

Blog posts alone will not defeat the forces of terror, but rhetorical resistance is important.  The terrorists attacked Charlie Hebdo because they recognized the power of media and rhetoric.  In addition to taking concrete actions, we can mourn the lost, defend the principle of free expression for which they fought, castigate those who would blame the victims of terror for daring to express themselves, and celebrate the virtues of a free society.

Voldemort Returns

A few thoughts regarding movie cancellations, cyber threats, and free speech:

The media often focuses on purported trade-offs between national security and civil liberties, but recent events suggest that defenders of civil liberties very much have an interest in a strong national defense.  Warding off the threats of rogue states, terrorist groups, and other unsavory actors can keep these forces from undermining the enjoyment of liberties (especially free expression).

The Founders established the institutions of the U.S. government in part to defend the liberties of the inhabitants of this Republic.

Defending freedom in part has to do with laws, institutions, military efforts, and so forth.  But this defense also involves the cultivation of cultural norms.  One of these cultural norms is, as Solzhenitsyn reminds us, the value of civic courage.

Those who threaten violence in order to shut down the voices with whom they disagree are usually coming from a position of fear.  The free exchange of ideas is not for the faint of heart.  Defending the idea of cultural conversation in the abstract takes intellectual courage, but so too does participating in that conversation.  We lose much by empowering those who seek to silence civil debate with threats of violence.

Agreeing with Critics

Heckled by activists, President Obama declared yesterday that he "just took an action to change the law" in issuing his executive actions on immigration.  Many of the defenders of executive supremacy have argued that the president is only prioritizing enforcement of the laws rather than changing the laws, and many opponents of the president's actions have argued that they have crossed a line between prosecutorial discretion and the executive rewriting the laws.  Inadvertently, the president seems here to be agreeing with the critics of his executive authority that he is actively changing the law.

Many of those who have criticized the Obama administration's record of minimally enforcing immigration laws have argued that an influx of illegal labor undermines the wages of the average American.  A number of those critics have also worried that the president's executive actions on immigration could further harm the economic prospects of native-born Americans and legal immigrants.  Peter Beinart, who has vigorously defended the president's sweeping use of executive authority, agrees that President Obama's decisions would actually harm many Americans: "Will those opportunities [for illegal immigrants affected by the president's actions] come at the expense of some other Americans, whose legal status had previously given them an economic advantage? Sure."

Edict Issued

President Obama has issued the vaguest outline of his actions on immigration.  As Steve Holland and Roberta Rampton of Reuters phrased it, the president "imposed the most sweeping immigration reform in a generation on Thursday."

Many Democrats in Congress seem to be willing to cede more power to the president. But a few dissenting voices have started to rise. Perhaps the starkest criticism came from Senator Angus King, an Independent from Maine who caucuses with the Democrats:

King...wondered if the next president would come in and use executive action to pull the plug on the Affordable Care Act’s online insurance exchanges.
“I’m afraid the president has changed the subject from immigration to his action. The headlines from the debate this weekend won’t be about immigration, it will be about, ‘Can the president do this? Should he do it?’” King said. “How are we going to feel when a future president feels that the Affordable Care Act is a bad law?”

Time will tell how many Democrats sign on to this line of thinking.

Beyond Partisanship

At NRO, I examine some of the hints of potential resistance to the president's case for executive supremacy:

For all the president’s invocations of the need to transcend rank partisanship in 2008, the Obama administration might have expected that the president’s sweeping executive actions would cause the Beltway-media complex to dissolve into partisan controversy. However, as the president edges closer to announcing his executive actions, there are signs that the White House’s game plan might be facing some difficulties. Recent rumblings from the media and the silence from congressional Democrats suggest that, if the president does indeed take sweeping action, the administration’s preferred media storyline could be scrambled and the president’s case for executive supremacy could face considerable opposition.

The president and his allies are likely to try to cast this issue of executive authority in partisan terms.  If opponents of executive overreach are going to be successful, they will likely need to shift this debate past partisanship to focus instead on deeper principles and more enduring precedents.

Prelude

It seems as though President Obama will proclaim his executive actions on immigration tomorrow.  A WSJ-NBC poll showed that only 38% of Americans support the president taking unilateral action on immigration.  As a point of reference, Richard Nixon never seemed to dip below 40% of public support for his policies in Vietnam, according to Gallup.

It's also worth noting that, in the lead-up to the president's proclamation, he will be reportedly dining exclusively with congressional Democrats tonight.  The president may be hoping that partisan polarization will allow him to centralize power further through executive decrees.

Uncharted Territory

At the Washington Post, Karen Tumulty and Katie Zezima note that the president's case for executive supremacy will "will expand the authority of the executive branch into murky, uncharted territory."

Meanwhile, Michael D. Shear at the New York Times also draws attention to the historical ironies of President Obama's potentially sweeping executive actions on immigration:

[President Obama is] poised to ignore stark warnings that executive action on immigration would amount to “violating our laws” and would be “very difficult to defend legally.”
Those warnings came not from Republican lawmakers but from Mr. Obama himself.

Some in the media seem increasingly to be worrying about the broader implications of the president's case for a super-charged executive branch.  (Even some voices in The New Republic are starting to express concerns.)  Charles C.W. Cooke asserts the importance of Constitutional norms for the Republic---and fears that the president's actions may imperil some of these norms.

It remains unclear whether congressional Democrats will sign on to the case for executive supremacy.  Harry Reid, Dick Durbin, Chuck Schumer, Patty Murray, Bob Menendez and Michael Bennet all signed a letter cheering the president's reported desire to take more power for himself.  But Greg Sargent passes along the worries of various activists that some Democrats might not be so sure about executive supremacy:

Among the Democrats believed to be at risk are Joe Manchin, Heidi Heitkamp, Jon Tester, Claire McCaskill, and Joe Donnelly. Angus King (who is an independent but caucuses with Dems) is also a question mark.

Jeanne Shaheen, when she ran for reelection, was critical about the president taking executive action.  And retiring Michigan senator Carl Levin has now implied that the GOP's desire to confront the president on sweeping executive action would be quite legitimate.  In the days ahead, might not more Democrats, having realized the implications of the Obama precedent, step forward?

To Act or not to Act

Michael Warren has some intriguing inside reporting on what congressional Republicans are thinking about doing in response to sweeping executive action on immigration.  Josh Siegel also outlines some of the various strategies being considered by Republicans.

A question that still needs to be addressed: will any Democrats in Congress complain about a shift toward executive supremacy?  Some on the left outside of Congress have warned about the precedent potentially being set by President Obama here.  Will any elected Democrat speak out?

Drawing Battlelines

The New York Times confirms FOX's earlier reporting about President Obama's executive actions on immigration.  Steny Hoyer, the Democratic Whip in the House, rallies for executive supremacy.

Speaker Boehner is speaking out strongly against the president's rumored plans.  Mark Krikorian games out ways that the House could try to subvert the president's immigration power grab:

This is why the message of today’s editorial rejecting a long-term budget deal made in the lame duck is so important. Harry Reid will obviously not agree to any funding riders prohibiting Obama from issuing work permits to illegal aliens. Also, the Republican leadership has already said it’s not going to engineer another government shutdown. But in the next Congress, the House could pull out the Homeland Security budget (rather than fold it into an omnibus funding bill for the whole government) and attach the rider just to that, so when Obama vetoes it, only DHS will be subject to a “shutdown.” The reason for the quotation marks is that it won’t be much of a shutdown since law-enforcement components continue to function as “essential personnel,” including the Border Patrol, the Secret Service, the Coast Guard, ICE, and the TSA. In fact, the chief component of DHS that actually would be idled by a budget battle would be US Citizenship and Immigration Services (USCIS), the very bureau that would have to implement Obama’s lawless amnesty.

David Rutz at the Washington Free Beacon has a very helpful round-up of the president's previous statements claiming that he lacks authority to take unilateral executive action on immigration.

Potential Outline of Executive Action on Immigration Leaked

Fox reports that it has uncovered a draft document of President Obama's plans for executive action on immigration:

The plan contains 10 initiatives than span everything from boosting border security to improving pay for immigration officers.

But the most controversial pertain to the millions who could get a deportation reprieve under what is known as "deferred action."

The plan calls for expanding deferred action for illegal immigrants who came to the U.S. as children -- but also for the parents of U.S. citizens and legal permanent residents.

The latter could allow upwards of 4.5 million illegal immigrant adults with U.S.-born children to stay, according to estimates.

Critics in the Senate say those who receive deferred action, according to U.S. Citizenship and Immigration Services, receive work authorization in the United States, Social Security numbers and government-issued IDs.
Another portion that is sure to cause consternation among anti-"amnesty" lawmakers is a plan to expand deferred action for young people. In June 2012, Obama created such a program for illegal immigrants who came to the U.S. as children, entered before June 2007 and were under 31 as of June 2012. The change would expand that to cover anyone who entered before they were 16, and change the cut-off from June 2007 to Jan. 1, 2010. This is estimated to make nearly 300,000 illegal immigrants eligible.

Earlier tonight, Charles Krauthammer attacked the plan as "constitutionally odious."

Reportedly, President Obama may issue his edicts as early as next week.  It's interesting to note that the president may not be waiting until after Mary Landrieu's runoff election in early December.  Perhaps the president feels the need to ram through now in case opposition to his unilateral actions continues to build.

Coalitions, Coalitions

Noah Rothman offers some reflections on the differences between the Obama coalition and the electoral prospects of the Democratic party:

Surveying the four national elections that have occurred in the Obama-era, analysts will find virtually no evidence to suggest that the Obama coalition is synonymous with the Democratic coalition. When Barack Obama is on the ballot, his coalition of voters shows up at the polls. When he isn’t, they don’t; even despite his personal appeals.

He includes an interesting quotation from one of Mitt Romney's top strategists, Stu Stevens:

“When the Obama campaign won in ’08, it was a hostile takeover of the Democratic Party,” said Stuart Stevens, chief strategist for Republican Mitt Romney’s 2012 presidential campaign. “With two historic back-to-back midterm defeats, all of their operations, their technology, have proven to be ineffective when Barack Obama is not on the ballot.”

As the president increasingly focuses on bypassing Congress in order to enact his executive whims, we'll have to see how many Democrats continue to hitch their stars to the Obama White House.

Breaking ICE

Stephen Dinan has a story in the Washington Times profiling the discrimination lawsuit of a former U.S. Immigration and Customs Enforcement employee.  In the employee's complaint in court, she outlines numerous instances in which ICE officials discouraged enforcing immigration law even against illegal immigrants who had committed felonies.

Thanks to our veterans past and present.  They have helped secure this republic through many a storm.

Setting up the Board

Ryan Lovelace has a very interesting piece up gaming out possible GOP responses to a possible Obama executive action.  At this stage of the game, much of the debate focuses on the use of a continuing resolution on the budget that would include a prohibition on using government funds to support portions of an executive order (such as the printing of work-authorization cards).

Of course, opponents of a presidential power grab are not just playing the inside-the-Beltway game.  They are also working to mobilize public opinion, as this column by Alabama's Jeff Sessions suggests.

Dispatch from the Future

Over at NRO, I sketch out a what it might look like for a Republican president to cite the Obama precedent on executive authority:

Unbowed by disastrous midterm results for his party, President Gerald P. Hedge insisted that he plans on going ahead with executive action on tax reform. “I’ve been very patient with Congress,” the president said at a press conference the day after the midterms. “But the American tax system is broken. And Democrats in Congress have refused to step up to the plate. So I will act as much as I can within the confines of the law to grant the tax reform that our nation so desperately needs.”
An ambitious tax-reform package — headlined by 20 percent rate cuts across the board — passed the Republican-led Senate in 2033 but was blocked by the Democratic-led House. In the lead-up to the 2034 midterms, Mr. Hedge pledged to take executive action to provide what advocates term “tax relief,” but he had delayed announcing the specifics of that action until after the midterms on November 7.

Read the rest here.

Restoring Normalcy

One of the key things emphasized by Mitch McConnell both before and after Tuesday's midterm victory was the importance of restoring normalcy to the U.S. Senate by reviving traditions of consensus and the power of the minority.  Harry Reid's tenure as Majority Leader was often marked by the impulse to make the Senate a tool of the White House and to minimize bipartisan debate, and Senator McConnell, along with many other Republicans and some Democrats, has expressed a desire to restore a sense of comity and independence to the Senate.  There is much to be said on behalf of this desire from a conservative perspective: the Founders did not conceive of the Senate as a tool of the White House or as the instrument of a single leader but as an independent legislative branch where deliberation was encouraged.  Restoring a sense of deliberation is all to the good.

But this restoration can also be a challenging enterprise, as Senator McConnell acknowledged in his press conference on Wednesday.  And it seems as though one early flashpoint will be whether to revive the filibuster for presidential nominees, especially ones to the judiciary.  In late 2013, Senate Democrats went "nuclear" and rewrote Senate rules in order to eliminate the filibuster for all presidential nominees with the exception of Supreme Court nominations.  As I noted at the time, Senator Reid's detonation of the nuclear option did potentially serious damage to Senate Rule XXII, which says that a supermajority of votes are needed to change Senate rules, and, in doing so, injured the consensus-encouraging architecture of the Senate.

Apparently, some Senate Republicans are considering trying to bring back the judicial filibuster, and some conservatives are pushing back against this effort.  A number of conservative leaders---from Gary Bauer to Phyllis Schlafly---have issued a memo warning that Republicans should not try to revive the filibuster for judicial nominees.  Ed Whelan has written a compelling case for why the GOP should not restore the judicial filibuster, and Utah Senator Orrin Hatch and former White House counsel C. Boyden Gray offer their own arguments for why the GOP should not "unilaterally disarm" (a point Ed Morrissey has also reflected upon).

Opponents of bringing back the filibuster emphasize a few points.  A major theme is the idea of reciprocity: if Republicans do bring back the filibuster, Democrats will use it against Republican nominees should a Republican become president in 2016, and, if Democrats regain the Senate and win the presidency in 2016 or 2020 or whenever, they will wipe the filibuster away again.  So Republicans will always need 60 votes to confirm their nominees, while Democrats will only need 51.  Another subtext of reciprocity is the suggestion that returning minority rights to Democrats will in fact encourage them to abuse Republicans when the GOP is in the minority; believing that Republicans will not use Democrats' own tactics against them might encourage Democrats to make even more sweeping power grabs.  Whelan also finds that the judicial filibuster is a historical anomaly, only really becoming systemically applied since 2003 (when it was used against George W. Bush's nominees), so, from his perspective, eliminating the judicial filibuster only returns the nation to pre-2003 Constitutional norms.

Proponents of restoring the judicial filibuster tend to suggest a few things.  A major point, alluded to by Paul Mirengoff, is the claim that some Senate Republicans may be inclined to be very deferential to the president's nominees, so a 51-vote threshold would mean that the president would only have to pick off a few Republicans in order to get an appointment through.  Restoring the filibuster would, according to this theory, mean that the president would need a greater Republican buy-in for any appointment.  Another point suggested by some filibuster-restoration proponents is the need to deescalate the hyperpartisan trench warfare into which the Senate has dissolved and that this deescalation has to start somewhere.  Prior to the election, some GOP Senators suggested their wish to restore the judicial filibuster because they thought that that might be one place to start the process of respecting minority rights.

Wherever one stands on restoring the judicial filibuster, there are a few larger, framing issues worth thinking about:

The Reid precedent of using the "nuclear option" to gut Rule XXII is a major affront to the institutional character of the Senate.  And it seems desirable to redress that affront in some way.  A bell cannot be unrung, but we can try to keep that bell from being rung again.

Due to the Senate's institutional structure as a deliberative body, assaults upon minority rights will also often end up being assaults on the rights and privileges of individual Senators (in both the minority and the majority).  The fact that the Senate has historically required consensus in order to function means that individual Senators from both parties usually have a significant role to play in shaping debates.

The filibuster has likely been overused in past years.  Many (including this author) think that there is a role for the filibuster in the Senate, but it needs to be used responsibly.  If partisan polarization deepens in the Senate and usage of the filibuster continues to escalate, the filibuster will likely continue to be reformed and/or weakened.  (And the legislative filibuster is a distinct issue from one for judicial appointments.)

In his final two years, President Obama seems to be gearing up for an unprecedented (at least since Watergate) assault upon Congressional power.  The Obama administration's new theory of executive power and non-enforcement of laws as placeholder or catalyst for Congressional action runs distinctly counter to many Constitutional norms.  It would be helpful for Congress to speak with a unified voice in order to defend its Constitutional duties and prerogatives.  If restoring Senate comity would help Congress find that unified voice, such a restoration would be an important achievement.


I'm not going to begin to guess here how much stick and how much carrot the GOP Senate majority should use in order to help restore normalcy to the Senate.  The Cold War is instructive here.  Unilateral U.S. disarmament was not a solution, but continued negotiations with the Soviet Union were important in keeping both the U.S. and the U.S.S.R from going nuclear.  Obviously and thankfully, disagreements between Senate Republicans and Democrats are nowhere close to the existential conflict of the Cold War.  If Senate Republicans are going to restore the judicial filibuster, they must have substantial buy-in from Senate Democrats.  Indeed, if Senators are serious about trying to restore Rule XXII, restoring the judicial filibuster may require a two-thirds vote, thereby demanding major Democratic support.  (And it is unclear whether allies of the filibuster could muster that two-thirds vote or even a bare majority at the moment. Also, restoring Rule XXII and/or normalcy in the Senate is distinct from restoring the judicial filibuster.)

The Reid precedent was problematic for the nation's affairs, the institutional character of the Senate, and, likely, many Democratic Senators themselves (after Barack Obama, Harry Reid was one of the biggest vote-getters for Republicans on Tuesday).  It is in the interests of members of both parties to restore the Senate's position as an independent, deliberative body.  Over the next few months, we're likely to witness many discussions about how to achieve this restoration.

Midterm Meltdown

At NRO, I look at how Democratic policy choices helped pave the way for the Republican triumph in Tuesday's midterms:

Winning the presidency during a time of great national turmoil in 2008, Barack Obama had the potential to forge an enduring governing majority. However, the midterms of 2010 delivered a blow to that hope of a broad coalition. The president’s hard-fought victory in 2012 gave him another four years in the White House, but it did not return Democrats to power in the House. And now, in 2014, the president finds his party being rejected at the polls throughout the country. Purported “blue states” like Massachusetts, Illinois, and Maryland have elected Republican governors. Republicans seem to be heading to their biggest majority in the House in decades. Since the 1980 landslide, Republicans had never beaten more than two incumbent Democrats in Senate races during an election cycle. Yesterday, they defeated three (in Arkansas, Colorado, and North Carolina), and Bill Cassidy has a good chance of defeating a fourth, Mary Landrieu, in the Louisiana run-off election.

Despite the clucking of many media mandarins, this outcome was not preordained. Many of the states in which Republicans triumphed at both the federal and state levels are very amenable to Democrats. Arkansas Democrat Mark Pryor is a strong campaigner with a distinguished lineage. He handily won election during the pro-Republican 2002 midterms, and Republicans did not even field a candidate against him in 2008. Democrats won Colorado Senate races in 2004, 2008, and 2012. Arkansas’s Tom Cotton and Colorado’s Cory Gardner were fine candidates (candidate quality does matter), but their campaigns — along with those of many other insurgent Republicans — also relied upon a troubled national landscape.

As Franklin Roosevelt’s example shows, a president elected during great unrest can formulate a new governing consensus. But a president who fails to persuade the American public that he has a viable set of policies can also find his administration struggling. And so President Obama’s administration suffered this rebuke at the polls in no small part because of its own failings.

You can read the rest here.

A few other points:

As Robert Costa explores, the GOP put a lot of work into grooming candidates for this midterm cycle.

I wrote last month about Republican hopes for taking over a House seat or two in Massachusetts.  Well, as in other years, these hopes have been disappointed: Richard Tisei lost to Democrat Seth Moulton in the Sixth, and John Chapman lost to incumbent Democratic Bill Keating in the Ninth.  Interestingly, while Tisei's campaign generated considerably more interest and money, Chapman ended up finishing much closer than Tisei.

Mickey Kaus and Mark Krikorian focus on the immigration implications of the midterms, finding that voters rebuked the president's agenda on immigration.

Bay State Update

Following up on last week's article about two Massachusetts Congressional hopefuls: in Massachusett's 9th district, incumbent Democrat Bill Keating has finally agreed to debate his Republican challenger, John Chapman.  The two will face off in three debates next week.  Keating and Chapman are also engaged in a battle of endorsements.  The Boston Herald has come out in Chapman's favor, while Keating has won the support of the Cape Cod Times, a major regional newspaper in the 9th.

The latest poll of the 9th shows the race within the margin of error (though it does give Keating a slight edge).  This race has started to garner national attention.  Keating is a tough campaigner, but time will tell if he's able to resist overall national trends.

Meanwhile, in the Massachusetts governor's race, a series of recent polls suggests that Republican Charlie Baker may be picking up momentum in the race.  According to RealClearPolitics, Martha Coakley, the Democratic candidate, has not led in a single poll released in the last week and a half, and a new Boston Globe poll has Baker up by 9 points.

Economy Still Matters

At NRO, I look at the decision by some Democrats to turn to economic populism as a last-ditch electoral defense.  Noting that many aspects of the president's record have actually undermined the working class, I suggest that Republicans need to make their own case for economic growth for the middle:

Despite all these obstacles, Democrats may be able to use populist messaging to push themselves over the finish line in a few close races. President Obama’s reelection campaign depended upon a combination of class warfare, withering personal attacks upon Governor Romney, and appeals to demographic polarization (such as the “war on women”). Some Democrats seem to hope that the White House’s 2012 playbook can be useful in 2014. Josh Kraushaar noted last week that some Democrats are turning with at least modest success to economic issues in places as disparate as Illinois, Massachusetts, and Georgia. This success should remind Republicans of the need for the GOP to offer its own message of economic advancement for the middle class.Luckily for many Republican candidates, pundits and politicians alike have taken a renewed interest in broad-based economic prosperity. Senators Mike Lee of Utah and Jeff Sessions of Alabama, among others, have emphasized pro–middle-class messages and policies. The recent policy publication Room to Grow is full of market-oriented suggestions for improving the standing of the economic middle. Beyond debates about the minimum wage, Republicans can emphasize the importance of a vibrant economy, in which incomes of all types can grow. They could argue on behalf of a tax-reform agenda that has benefits for middle-income families. They could defend an energy policy that fuels economic growth and makes energy more affordable for consumers. In contrast to the prevailing doctrine of Too Big to Fail, Republicans could argue for reform that would create a more diffused and market-oriented financial system. In place of the White House’s anti-market and anti-worker immigration agenda, Republicans could argue for an immigration policy that affirms the dignity of all workers and increases economic opportunity for native-born Americans and immigrants alike (so GOPers would be better off not calling for a further increase in guest-worker programs). In addition to criticizing the shortcomings of the ACA, Republicans can lay out their proposals for making the health-care system more affordable and more efficient. Instead of pitting Americans against one another through class warfare, Republicans can defend broad-based economic opportunity, where Americans can work together for the enrichment of all.

The Economic Message Still Matters

Josh Kraushaar has an interesting article up exploring how some Democratic candidates---in states ranging from Illinois to Massachusetts---are attacking their Republican opponents on the issue of outsourcing.  These attacks might not always be fair, but they do suggest the importance of Republicans continuing to develop an economic message that tells voters that the GOP and conservatives can put forward economic policies that will work for the average American.

Races in the Bay State

Over at NRO, I look at two Massachusetts races where GOP congressional candidates may be coming closer to their Democratic opponents.