"The action I am taking is no more than a radical measure to hasten the explosion of truth and justice. I have but one passion: to enlighten those who have been kept in the dark, in the name of humanity which has suffered so much and is entitled to happiness. My fiery protest is simply the cry of my very soul. Let them dare, then, to bring me before a court of law and let the enquiry take place in broad daylight!" - Emile Zola, J'accuse! (1898) -

Friday, October 24, 2008

For All Of Us Concerned With The Evolution Of The “Imperial Presidency”, Apparently We Are Going To Have To Keep Our Eye On The Second Chair Also.



Try To Image A Vice President Who Believes He/She Has More Power Than Dick Cheney; Then Check Cheap Tickets For The Best Fare You Can Get To Canada!


Todd, who was remarking on the interview conducted by NBC's Brian Williams (he was in the room), speculated that the candidates had come to the realization that "they are losing" the campaign, and guessed that McCain may have begun to hold his vice presidential choice responsible for his dwindling White House chances.


"When you see the two of them together, the chemistry is just not there. You do wonder, is John McCain starting to blame her for things? Blaming himself? Is she blaming him?" asked the highly regarded NBC newsman. "And maybe they don't feel they can win right now, so they are missing that intensity. That was the thing that struck me more than anything. You almost wonder why they wanted the two of them sitting next to each other."



Article I, Section III of the US constitution:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.


Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.


No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.


The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.


The Senate shall choose their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.


The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.


Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.


According to Section III's actual text, the Vice President is only responsible for two functions:


  1. Being ready at a moment's notice to fill in for the President due to any emergency which prevents he or she from fulfilling the roles of President. If a President dies while in office, the Vice President steps in. If the President is unconscious due to, for example, anesthesia while undergoing surgery, the Vice President steps in. This is pretty simple.
  2. The only other official duty is for the Vice President use his authority as President of the Senate to preside over the session, vote, and thus break a tie in those rare occurrences where that happens. Also, pretty simple.

That's it. Or so every Vice President and senator thought for the last two hundred years. As John Nance Garner, Senator, 1932 Democratic Presidential candidate and then Vice President to FDR in his first term put it, the Vice Presidency is "... the spare tire on the automobile of government" and "...not worth a bucket of warm piss." (Note: Some publications quote Mr. Garner as having said ...bucket of warm spit). The term President of the Senate in paragraph four has been interpreted for the last two hundred years as nothing more than a ceremonial role trotted out when the Vice President presides for formal occasions - such as during a State of the Union address - and, very rarely, when the Vice President votes to break a tie in the Senate. But never has a Vice President intruded on traditional matters of Senate prerogative, such as rule-making, recognizing speakers, setting a legislative agenda, or calling votes. Never. Thus, in the traditions of the Senate, a Vice President rarely presided as "President of the Senate". Back in Vice President Garner's day, those few official acts would have been as much as he could have expected from his job as 'Presidential Spare Tire.'


All that changed after the election of President Jimmy Carter and Vice President Walter Mondale in 1976. President Carter chose to change the role of the Vice Presidency within the executive branch to one where Mr. Mondale was given an official office in the White House and numerous new duties as assigned at the President's discretion and in agreement with the office of the Vice President. This is how Wikipedia described Mondale's additional responsibilities:


Under Carter, Mondale traveled extensively throughout the nation and the world advocating the administration's foreign policy. Mondale was the first vice president to have an office in the White House, and established the concept of "activist Vice President". He expanded the vice president's role from that of figurehead to presidential adviser, full-time participant, and troubleshooter for the administration. Subsequent vice presidents have followed this model in the administrations in which they serve. Mondale established the tradition of weekly lunches with the president, which continues to this day.


That decision by President Carter set the precedent for what Ms. Palin argues today: the Vice President has powers far in excess than those that is explicitly enumerated in the constitution. There are differences between Mondale and Palin's perspectives. For example, under Carter's policy the President had the direct authority to assign executive tasks to the Vice President, assuming Mondale accepted those responsibilities. In this circumstance there was no extra-constitutional usurpation of authority within the executive, as the system ran by a gentleman's agreement between those two offices of the executive. This agreement is what sustained the growing power of the Vice Presidency over both Republican and Democratic office holders from 1980 on to 2000 when Bush/Cheney took office.


Ms. Palin was characteristically vague when she stated that the Vice President is, "...in charge of the Senate...", leaving it up to her supporters and critics to discern just what she meant. However, other conservatives have not been so ambiguous. For example, Law Professor Steven Willis (please do not contact or otherwise invade Mr. Willis' privacy, this link exists simply to cite his credentials), a Tax Attorney who teaches at the Florida School of Law, posted over at Redstate:


Title: Article I Section 3


Posted by: Steven_Willis October 21st, 2008 at 3:27 p.m. CDT (link)

The VP is President of the Senate.


While most VPs have ignored the position other than for the occasional tie-breaking vote, Palin could do otherwise.


The VP is much like a Committee Chair who can: recognize speakers, enforce rules, or even help set agenda, if not more. This is an interesting Constitutional theory and one I hope she pursues.


Signature: Steve Willis Professor of Law University of Florida College of Law


That's an astonishing revisionist reinterpretation of Section III's text. What he's arguing is that the Vice President, as President of the Senate, really has the power of the Majority Leader's gavel to recognize speakers, enforce rules, restore order, and and even "help set [the legislative] agenda". Never before has the Vice President had such authority. But at least some conservative legal scholars think the role should be changed such that the Vice President would have at least some - if not all - of the powers of the Majority Leader as set by longstanding Senate rules and traditions.


Among conservatives, Steve Willis is not alone. For example, Bruce Ackerman, of The American Prospect, wrote back in 2005 on the topic of Vice President Cheney's seemingly extra-constitutional usurpation of power during the filibuster debates of that time:


The key rule in this debate isn't the one that requires 60 senators to end a judicial filibuster. It isn't even the special provision that requires 67, rather than 60, senators to terminate debate on those special occasions when the Senate is considering a change in its standing rules. It is Rule 5: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." The only way of changing the filibuster provision that is "provided in these rules" is the one that requires 67 votes. If Cheney followed Rule 5, he would have to rule out of order any effort to change the filibuster provision with less than this kind of super-majority support.


It really is as simple as that -- which is why the leadership isn't consulting with the Senate parliamentarian. Instead, Cheney has announced that he won't enforce the rule, which expresses the consistent understanding of the Senate for two centuries. He will put the power of his office behind Frist's complex parliamentary maneuvers that aim to nullify the key provision. And if the Senate ties at 50-50, he will cast his deciding ballot in favor of destroying the rules that, as the Senate's presiding officer, he is charged with enforcing. No Senate president has abused his power like this in American history.


In other words, the claim of additional powers to the Vice Presidency is not something that an ignorant Sarah Palin just trotted out in the hopes of looking smart in front of a camera. And Cheney clearly has been willing to abuse his power in ways far outside the normal rules and decorum of Senate process. Diminishing of the legislature would appear to be a long-standing project among some conservatives. Professor Willis may turn out on the losing side of this debate, but he's not the fountainhead of this idea. I suspect that Cheney and Rumsfeld, however, is. And their plans have been long and deep to reach such a rotten fruition as this.


To realize why, one need only look back to the 1970s when Vice President Cheney was a staffer at the White House under Presidents Nixon and Ford, to then ascend to the position Chief of Staff after Donald Rumsfeld was promoted to Defense Secretary. One should note this short statement in the Wikipedia article:


[Cheney] held several positions in the years that followed [1969-1970]: White House Staff Assistant in 1971, Assistant Director of the Cost of Living Council from 1971-73, and Deputy Assistant to the president from 1974-1975. It was in this position that Cheney suggested in a memo to Rumsfeld that the Ford White House should use the Justice Department in a variety of legally questionable ways to exact retribution for an article published by The New York Times investigative reporter Seymour Hersh.


So, even back in the Mid-1970's then White House staffer Dick Cheney was promoting as executive privilege extra-legal methods of action within the White House to target 'enemies'. One suspects that Mr. Cheney learned these tactics while as a staffer under President Nixon. Thus, one can see a direct line from disgraced President Nixon and his abuse of power straight to the current abuses of power in the Bush Administration. And - ironically - it would appear that President Carter unfortunately set the precedent conservatives are now using to try to usurp power away from the Majority Leader to the office of the Vice President.


However, the Senate runs by two centuries of rules and traditions, many of which would be superseded by the proposed change. It is unclear just how the executive could wrest authority from the Senate, especially considering an unlikely Republican Presidential win in 2008 and the divided government that would follow. But suppose the President directed the Vice President to preside over the Senate floor, raise the gavel, and call a session to order? There's nothing in the constitution to prevent this action, and further, there's two hundred years of precedent where the Vice President did just that - during ceremonial occasions.


But just how could a President and Vice President convince the Majority Leader to hand the reigns of Senate process - and the constitutional authority of the legislature - over to a Vice President in the executive branch? The rationale behind Mr. Cheney's repeated assertions that the Vice President is not a member of the executive branch but is instead a part of the legislative branch now becomes clear. Presumably, under this scenario, the Vice President would simply take the gavel, call a session to order, and wait for the Majority Leader to challenge the Vice President with an objection and try to force a rules vote. With a strong majority in the Senate one would expect Mr. Reid to win that vote. So what is a Vice President to do to wrest those reigns over the Senate from Mr Reid's hands?


Take it to the Supreme Court, where all constitutional matters between government branches are resolved.


And now we see why this is such a dangerous theory. With this Supreme Court,who knows what might be the outcome?


Given the widespread executive abuses we've seen over the last eight years, from abandoning George Washinton's edict to not torture enemies in warfare to extra-legal rampant spying on US citizens in opposition to the clear text of the fourth amendment, it would appear that an overly-empowered executive branch can easily arm-twist enough members of congress to enact almost any agenda they want. But that may not be enough for them. An empowered executive branch would want the legislative branch fully neutered so they could enact whatever agenda the President wished - particularly in divided government.


And while it may be conservatives pushing for this change right now, we should remember that it was at least some Democrats who voted for FISA immunity; it was at least some Democrats who voted to continue funding the Iraq War; it was at least some Democrats who voted for the Iraq War in the first place. Without those Democrats, Republicans may never have enacted their agenda and thus cocked the gun that we now see pointed at our republic and constitution.


Thus, I argue that liberals and moderates should not ignore or laugh at these statements and just assume that ridicule will make this idea go away. Conservatives have a plan. And while the election today would appear to thwart their most recent plans for how they view a future Amerika, conservatives have shown that they are patient.


They spent almost forty years reshaping and cleaving American social mores in order to first regain power and then slowly shift the debate from one that was moderate-liberal to one that should be termed a radical rightist agenda today. After the disaster of the Nixon administration, it took only one full term before they regained power. Think about that. Within only two generations conservatives, with the support of Republican Presidents in power along with an army of think-tank Ph.D. soldiers, have reinterpreted the constitution such that our founders would barely recognize the institutions they created. I fully expect we're going to see this argument trotted out in a future Republican administration. Next time, lets be prepared to demolish it intellectually so that it never resurfaces again.


UPDATE: Special Thanks to Kagro X and arodb at Dailykos for a very helpful debate that elicited several points I had not thought of. Also, some minor text revisions as a result of that debate.


Disclaimer: IANAL (not a lawyer)


Text Copyright 2008, J. Maynard Gelinas. Some rights reserved. Permission granted to duplicate content in full, with attribution, per a Creative Commons Attribution 3.0 license.


Ashley Todd: An Image Of Intolerance, Illness Or Both?


With the confession today that she made the whole thing up, Ashley Todd joins the ranks of Susan SmithTawana Brawley and — if you believe the prosecutors and not her new memoir — Crystal Mangum as another disturbed woman willing to exploit race for some sort of personal gain. In this case, it seems likely that Todd intended her report of a being robbed, beaten and mutilated by a "6' 4" black Barack Obama supporter to play into people's deepest fears in order to affect the presidential campaign. It was as well thought-out as her plan to carve a B into her own face in the mirror. But her actions do say something about how people like Todd, Smith, Brawley and Mangum think that their stories will be enhanced by playing the race card.


Obviously, Todd has some rather specific ideas about race, from her Twitterfeedabout being on the "wrong" side of Pittsburgh to this disturbing "mean janitor" video that Wonkette unearthed.


McCain-Pundits: End of a Love Affair?
After decades of fawning press coverage, John McCain is mad that his new persona as an angry, negative campaigner isn't going over so well, notes Brent Budowsky in this guest essay. October 23, 2008


New Front in Palin's 'Troopergate' Mess
An Alaska lawmaker calls for an independent probe of whether John McCain's staff tampered with witnesses to protect Sarah Palin from the "Troopergate" scandal, reports Jason Leopold. October 21, 2008


McCain Enflames 'Partisan Rancor'
After vowing to end "partisan rancor," John McCain has run one of the nation's nastiest campaigns, raising the question: How bitterly divided would the country be if McCain wins? October 24, 2008


US Journalists & War-Crimes Guilt
Six decades ago, the Nurenberg Tribunals established that propagandists shared in the guilt for crimes against humanity, but today, U.S. journalists casually advocate for war crimes, Peter Dyer notes. October 15, 2008