Wednesday, June 12, 2013

Presidential Powerlessness

"The president," argues Jamelle Bouie, "should stop giving speeches on immigration reform."  The logic is straightforward:
"You can attribute some of the success of the current immigration bill to President Obama’s absence from the debate. A large number of Republicans are simply unable or unwilling to support a proposal that has Obama’s name attached. By stepping away from the process and leaving it to Democratic and Republican lawmakers in the Senate, Obama set the stage for cooperation and allowed a chance for success—a permission structure, as it were.  . . .  If Obama wants comprehensive immigration reform to pass, he needs to stay completely out of the way. If he wants to claim some credit, he can do so at the signing."
Got that?  Bouie isn't just rejecting the much-derided "green lantern" theory of presidential power according to which any president worth his salt should have the leadership capacity to bend Congress to his will on the issues that matter most to him.  Bouie is saying that, just seven months after his decisive reelection, Obama's giving voice to his policy preferences respecting a major plank of his reelection platform makes them less likely to be enacted into law.  If we could quantify Obama's presidential power with respect to one of his most urgent priorities, on Bouie's view the number isn't just smaller than some people think, it's negative.

Tuesday, June 11, 2013

A Thought About The Expectation of Privacy

In a free society, the law draws a relatively bright line between public and private conduct.  When it's operating smoothly, our Fourth Amendment right not to be subjected to unreasonable searches and seizures is a case in point.  It only kicks in when a government scrutinizes something as to which every subject has "a reasonable expectation of privacy." Absent that expectation, there is no search or seizure to which Fourth Amendment standards apply.

As I understand it, the NSA's recently disclosed collection of telephone metadata falls on the right side of that bright line inasmuch as no one has a reasonable expectation of privacy regarding the sort of information that telephone companies routinely collect in the ordinary course of business.  That, at any rate, is the holding of the most readily applicable legal precedent, a 1979 Supreme Court case under the caption of Smith v. Maryland. You might quibble about Smith's applicability in the present case on the ground that, owing to modern technology, metadata reveals a lot more about telephone-users than it did in 1979.  (See e.gthis Jane Mayer piece).  But it's hard to argue that what the NSA is doing is condemned by the law as it now stands.

Why aren't these considerations more reassuring?  Here's one answer:

Monday, April 16, 2012

Last Night’s Mad Men: “Signal 30”

We’ve known that Pete Campbell is a piece of work since early in Mad Men’s first season. Lots of people are indecently ambitious, but not many of them manage to be perpetually aggrieved. Pete resorted to intra-office blackmail without batting an eye in Season One’s “Nixon vs. Kennedy” because he had persuaded himself that extreme measures were excusable, even justifiable, in light of Don’s perverse refusal to acknowledge that he deserved a promotion on the merits. And remember, the blackmail scheme wasn’t Pete’s first misbegotten challenge to Don’s authority. It took Bert Cooper’s intervention to keep Pete from getting fired after the unsuccessful run he made at Don in connection with the Bethlehem Steel pitch in Season One's “New Amsterdam.”

Most people in Pete’s situation would have been looking for a new job and a different boss. Yet just a couple of weeks after he struck out as a blackmailer, Pete laid his new Clearasil account before Don like a cat lays a freshly killed bird before its owner: “It matters to me,” Pete meowed, “that you’re impressed.”

Tuesday, March 27, 2012

A Train Wreck For ObamaCare?

In my experience, appellate judges are usually pretty good at being inscrutable, and Supreme Court Justices are undoubtedly better at it than most.  When I was practicing law, I was fooled spectacularly by a judge's demeanor on a couple of occasions.  Yet I've generally found Jeffrey Toobin to be a pretty reliable reader of judicial tea leaves.  FWIW, he (via TPM) thinks that today's argument was a "train wreck" for ObamaCare.

Monday, March 26, 2012

Last Night's Mad Men

The Internet is teeming with idle chatter about Mad Men’s season premiere. I don’t yet have much to say about it because I don’t pretend to know where the story lines introduced last night are going to take us. Anyone who has watched the show’s first four seasons knows how easy it is to surrender to a Matthew Weiner head fake.

There was one development in last night’s show, however, that really got my attention because it said something about the story arc of the whole series: Megan Draper knows that her husband used to go by the name “Dick Whitman” and is now living a life that he fabricated out of whole cloth. It’s not yet clear how much she knows about Dick Whitman, above all, whether she knows that he’s an army deserter who got a new lease on life—or should I say “a lease on a new life”?—impersonating a dead man named Don Draper. Yet Megan is plainly perceptive enough to figure out that anyone who would bother to lie about something as trivial as a birthday must be keeping a pretty dark secret from the world at large. Don seems to have let her in on most of it.

Monday, January 23, 2012

Nothing But Words?

If you believe Rasmussen, Newt Gingrich has picked up 31 percentage points against Mitt Romney (from 22 down to 9 up) among Florida likely voters in the space of two weeks.  By all accounts, Newt's extraordinary performance in the debates leading up to the South Carolina primary was the proximate cause of his victory there, and thus the momentum that he's carrying into Florida.  We've always known that having a way with words, especially with the unscripted words that can't be transmitted to a candidate by way of speech writers and teleprompters, is an important asset on the campaign trail.  It clearly becomes all the more important an asset to the extent votes turn on the performance of the candidates in televised debates. 

Let's stipulate that Newt's gifts as an extemporaneous rhetorician give him a leg up over Romney in the Republican primaries and probably would give him a leg up over Obama in general election debates.  No one will argue with the proposition that Gingrich's fluency will help him make a case for himself as the Republican nominee and a general election candidate.  But Newt's fluency is his case for his own presidential candidacy.  At least you'd get that impression from this spot: 

Thursday, January 19, 2012

Who Won Iowa?

You may have heard that the official recount of votes cast in the Iowa Caucuses ended with Rick Santorum 32 votes ahead of Mitt Romney, but with the votes from 8 separate electoral precincts missing, and therefore not recounted. The Iowa Republican Party has decided, on that basis, to call the election a tie.

Josh Marshall thinks that's a "cop-out for the ages":
"The rationale for calling this a tie, according to the Des Moines Register, which has the story as an exclusive, is that 8 precincts’ numbers are lost permanently and will never be certified. So in practice it’s a tie, too close to call, etc. That of course probably applies to pretty much all recount type elections — Bush v Gore, maybe Franken v. Coleman, etc. The vagueries of the process itself is too imprecise in some sense to tell you who ‘won’ in some Platonic (the other sense of the word) sense. But in normal elections where the people holding it aren’t deeply invested in not letting one guy win we have a name for that kind [of] situation — Rick Santorum won."