The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's
justsecurity.org
justsecurity.org
It's shocking to hear a guy who was a professional legal theorist argue that something is legal based on the fact that he ordered the DOJ to write a memo.
Additionally, when Presidents claim to be constitution law focused and fail in almost all of the concepts of following the constitution, the professors have failed and the department should be redacted down, similar to the division system in soccer.
I'll admit I voted for the guy the first time, but I was hoping for some significant differences in what we ended up with. Partially the fault of the obstructionist opposing party as well.
I would argue that the obstructionism during the first two years should not be considered a factor based on the make-up of the Congress. The Democrat congress and President would have been able to hold the majority if they had not stirred up the hornet's nest of populism from the right through the healthcare act fiasco. Had he just focused on creating jobs, winding the war in Iraq and Afghanistan to a manageable level of involvement, and proselytized about family being important, we would not be having Trump running for office today.
The Affordable Care Act was based on RomneyCare, which in turn was based on model legeslation from ALEC (American Legislative Exchange Counsel). They're a conservative organization that writes bills and gives them to republicans to propose.
The republican reaction was just showmanship; a cry of indignation for the sake of the cameras.
Oh come now. This is ridiculous hyperbole, and even the underlying idea is pretty weak at this point. I used the marketplace last June and it presented information clearly and effectively, and I had no problems going from zero to well-informed and insured in no time at all.
The launch may have been a fiasco, but it's a pretty good site today.
While on the face you seem to be decrying the polar tribalism that characterizes contemporary politics, you are using that very tribalism to make your argument. But the fact that some folks who label themselves "conservative" have advocated something does not obligate all people, or even any other people, who also label themselves "conservative", to also support it. Or will you criticize other Republicans for failing to get on board with Trump's nonsense?
That said, I think we can reasonably propose that most of the sound and fury over the ACA was political theater. Mitt Romney wasn't decried when he passed a nearly identical law in Massachussetts. In fact, the RNC chose Romney to run against Obama in 2012, so it clearly didn't hurt him much.
Ask yourself this: if John McCain had beaten Obama in 2008, and he proposed taking RomneyCare to the national level, do you think he would have drawn the same kind of criticism from republicans as Obama did?
Don't get me wrong, I'm not saying this is a republican problem. Democrats probably would have been furious with McCain if that had happened. They likely would have decried the lack of public option, and they would have called it a massive hand-out to private insurers. Democrats are not any better. They only supported the ACA because it was backed by their guy.
Obviously I'm speaking in blanket statements, and there will be individuals that this doesn't apply to. However, I'm pretty confident that these statements are true in the average case.
Romney was spot on about Russia being a concern in the coming months and years.
Instead, the thing the detractors feared has basically come to pass. Insurance companies in areas where there is not a lot of competition and suddenly a legal mandate for people to join are screwing over those people enormously. It's like if Comcast run your healthcare insurance.
Plus it did little to address the expensive and inefficient army of middlemen required to run the current system. Your doctor still needs people on staff dedicated to calling the insurance companies to talk to their middlemen to haggle over the need for every single procedure and then to haggle price and then to make a mountain of paperwork to document it all. It is an enormous waste of time and manpower but it pays a ton of salaries.
What valid concerns did Republicans have during the past eight years? Do tell. I've not heard of a single one.
Trump is the inevitable outcome of 50 years of racist, belligerent fear mongering and bad-faith governance on the part of the Republicans. You can draw a straight line from Nixon through Reagan through W. to get to Trump. Obama had nothing to do with it.
> Trump is the inevitable outcome of 50 years of racist, belligerent fear mongering
Trump is the inevitable outcome of eight years of liberal grievance peddling. His supporters are just trying to claim their share of the spoils of victimhood.
2. Russia is a concern. Check that against our attempts at "reset."
3. Iran will not adhere to the document they signed with the Nuclear Act. Check that with the current ballistics tests.
I could go on, however, please do tell me what current racist governance the Republicans are engaging in. How far into the echo chamber are you that you believe this, please point to what actual racist policies Reagan, George H.W. Bush, or George W. Bush have implemented?
To blame the President for this is ridiculous.
Our centrist President promoted a conservative think-tank idea battle tested in the laboratory of a large state, and was ridiculed as a marxist and a communist who was on the level of stalin. No hyperbole, these very attacks and words have become so common in conservative media that I am being very literal here.
The healthcare fiasco you point out was a manufactured fiasco.
The compromises made: conservative ideas, preservation of the private market, total lack of centralization are wholly anti-left anti-social ideas, and yet the opposition to him was as if he was an actual communist.
>"we would not be having Trump running for office today."
I consider this supremely naive.
The leaders of the national Republican party met before Obama was inaugurated and created the now-infamous obstructionist plan.
They promised each other: NO COMPROMISE, no assistance, no crossing the aisle. The only answer to ANY Democrat in the White House was simple: TOTAL uncompromising obstruction with the only valid and acceptable outcome being ideologically pure conservative policy.
The depth of the manufactured fiasco is proven by the simple history. A conservative idea to preserve the private market in the healthcare industry was hilariously tainted as socialist and the GOP successfully dragged their voters through another round of the Red Scare. This is indisputable: the renowned conservative think-tank Heritage Foundation is the genesis of the individual mandate which was battle tested by a Republican state administration. And yet, the second a centrist Democrat touches the plan, it's immediately the worst form of communism ever conceived...
>we would not be having Trump running for office today.
Trump is running today because the Republican Party promised their voters the Blood of any America-Destroying Commie-Democrat and failed to deliver what they could never deliver.
Republican leaders and Republican media stoked a fire for eight years and now they cannot control the four alarm blaze they've transformed their party into.
This is not Obama's fault. This is purely cause and effect. When you stoke a fire irresponsibly you get an irresponsibly large fire. Obama is a bystander. Republicans could have and would have stoked this fire for anyone who does not pledge fealty to their ideology. Look at how the #NeverTrump movement stokes this fire for Trump who they believe does not pledge true fealty to their conservative ideology. This is now how their party operates: Pledge fealty or you the problem that must be fixed, a RINO, an anti-Christ, a Muslim, a Marxist, a Leftist. Pledge fealty or you're the enemy. Obama was just a convenient target.
I don't think there was ever a time when the ACA was about single payer.
I think you're confusing it with a separate alternative bill progressives championed during the healthcare reform period that we called the Medicare for All Act (H.R.676 - United States National Health Insurance Act (or the Expanded and Improved Medicare for All Act.
We pushed hard for our vision of a national health care system and just about all progressives in Congress agreed with nearly 100 co-sponsors, but ultimately the centrist democrats and their new centrist President chose a path of "compromise" with conservatives who did not have any interest in compromise.
It makes me sad. If conservatives were going to wage a scorched earth red scare propaganda war against any health care reform, why not ACTUALLY achieve a national health care system and give their red scare complaints merit?
After the 2008 election and until the 2010 election, it was a Democrat House with a Democrat Senate with a Democrat President. It wasn't filibuster-proof (not like they do them anymore anyway) but the Democrats were in charge.
That's the exact problem, and it almost entirely invalidates your point.
Yeah. The Democrats stirred up populism from the Right by enacting a policy solution that closely followed health care policy solutions supported at one time by the Heritage Foundation and the 2012 Republican Presidential Candidate.
That's how we got here.
Plus nakedly uncompromising partisan power grabs like Obama's nomination of Merrick Garland.
The Democrats party pushed forward on healthcare reform. The tide was moving that something had to be done and there was movement to look at this, however, there were many different policies being proposed; President Obama was lying when he said "No one" has suggested other options, I know for a fact that I sent him an e-mail containing alternatives to those he was going for.
Romneycare was not liked within the Republican party, the concepts of what it took to enact, what it required to run, and what it asked of its populace were not well received. So, just because he was the one who tried it, does not mean that the entirety of the Republican party supported it.
So, yes, the Democrats stirred the opposing party's populist sentiment through many policy decisions that affected them. The Republican party members argued that the healthcare reform proposed by the Democrat party was ridiculous, would raise rates, and affect those who were independent business owners. As we sit here, rates are higher, the reforms are not occurring, and independent business owners are downgrading employees left and right (good pun Agustus) from full-time to part-time.
Finally, it's all politics. Joe Biden was in the same position on another supreme court nominee and did the same thing. It is all political. The media reports that he is a centrist, but based on my reviews of his opinions, he is left leaning with a few moments of conservatism; which is the optics President Obama wants to force a stand-off with the parties.
If you're suggesting that Obama has at any point contended that there were no other policy alternatives besides what ended up in the PP/ACA, I don't know what to tell you. Feel free to cite the statement you're sure he was lying about, though, I'm sure it will pair well with your own statement about the problem of people taking sound bites and packaging them.
Sadly, I do think it's likely Obama ignored your personal email containing our nation's policy solutions.
> just because [Romney] was the one who tried it, does not mean that the entirety of the Republican party supported it.
Sure, I don't expect the entirety of the Republican party to have supported it; the entirety of the Democratic party didn't. And among those that did there are many who'd be the first to tell you they think it could be improved (including Obama himself).
Given past endorsement and even adoption from some Republican segments with conservative bona fides any reasonable person would have expected some support, if the Republican party were actually doing policy at all rather than pure theater.
> The Republican party members argued that the healthcare reform proposed by the Democrat party was ridiculous, would raise rates, and affect those who were independent business owners.
The Republican party also argued that it would create government death panels, provide free care for all illegal immigrants, micromanage doctors, bring on a totalitarian state, that it was too big/too complicated, would bankrupt/enrich private insurers, bankrupt the country, etc etc.
Many arguments were made about the reform. Very few of those that took place in the public sphere were in any way about the actual policy.
Most of yours aren't, either. Nor is it clear that your perception of what is actually happening is accurate:
> As we sit here, rates are higher
Increasing rates have been a fact of life in the insurance market for decades. All PP/ACA had to do in order to be an improvement was slow down the rate of increase:
http://www.insurancejournal.com/news/national/2015/11/12/388...
> the reforms are not occurring
Since I'm personally acquainted with people who now have access to insurance and care, I think it's safe to call this false on that basis alone.
Or we could talk about how the socialists at Forbes magazine reported that the cost curve was already starting to bend circa 2013:
http://www.forbes.com/sites/rickungar/2013/02/12/new-data-su...
> independent business owners are downgrading employees left and right (good pun Agustus) from full-time to part-time.
"Are Republicans right that employers are capping workers’ hours to avoid offering health insurance? The evidence suggests the answer is 'yes,' although the number of workers affected is fairly small."
http://fivethirtyeight.com/features/yes-some-companies-are-c...
Again, there are people among the Democrats (Obama included) who'd be the first to admit that PP/ACA was the legislation they could get passed back in 2010 rather than ideal. There have been actual invitations to revisit the policy and see if we could improve on some of the known flaws, including this one.
> Finally, it's all politics. Joe Biden was in the same position on another supreme court nominee and did the same thing.
Describe, exactly, what you think "the same thing" is.
- Edit - it's a legitimate question, moreso than hand-waving about "post graduation logic tests".
[1] http://www.nytimes.com/2008/07/30/us/politics/30law.html?pag...
From that description, the equal protection and due process course sounds like a typical con law profesor?
He apparently focused on the intersection of race and constitutional law.
Also possible that he's a lizard person. Not much textual evidence for this case but if you like 45 minute youtube videos I'll recommend some good ones.
This is not to excuse the behavior of the man who chose to push buttons and kill people from the sky, but Obama did not invent any of this stuff. The drone program had already been created and had a life of its own. Obama was merely willing to play along with the game (instead of, say, cleaning out the CIA of torturers). The same goes for the rest - certainly, Obama wants power, but I think he actually sold himself for precious little of it.
Meet the new boss
Same as the old bossI think that Obama sincerely wanted to change things, but once he got the power he realized it wasn't possible, or he is a very convincing liar, so convincing that he believes himself what he said.
The system was never designed to be one where you could implement massive changes overnight.
If you want to find examples of convincing liars, you need to look among the people who are universally loved.
The very first Congress provided for warrantless searches of goods entering and leaving the ports of the United States. Why does it offend the Constitution to interpret the border as being the line where the domestic concerns of the 4th amendment give way to the foreign powers concerns of Article II?
It is a clear as daylight protection of against governmental abuse. And honestly I don't know about you, but I rather have my house searched then my computers any day of the week. One's a place I sleep, the other has deep insights on me as an individual.
The question of the heart of most modern fourth amendment debates is what constitutes a search (and, by extension, requires a warrant). For example, does the government require a warrant to work with the phone company to tap my line [0].
The original push for the 4th amendment protections were abuses of the writ of assistance, wherein British authorities could search any house and seize contraband. [1]. As far as I can tell, the fourth amendment was designed as a protection of property rights and against governmental harassment. I have not seen any evidence that it was written with privacy rights in mind.
In Katz v United States [2] Justice Stewart, in the majority opinion, wrote:
the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. [n4] Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. [n5] But the protection of a person's general right to privacy -- his right to be let alone by other people [n6] -- is, like the [p351] protection of his property and of his very life, left largely to the law of the individual States.
[0] Or rather, does the fourth amendment require the government to get a warrant. [1] Yes, this process was highly suspectable to abuse. The most relevant modern analogy would be civil forfeiture. [2] https://www.law.cornell.edu/supremecourt/text/389/347#writin...
Courts have long held that protections are very different at the border. For example a police officer cannot search your car without either your consent or "reasonable suspicion" of wrong-doing. But searches of cars at border crossings are common and legal.
Government policy has long been that the border is a lot bigger than you would expect. Government officers often exceed official policy, and courts have been known to rule in their favor when they do so. See https://www.aclu.org/constitution-100-mile-border-zone for some interesting stuff.
(I have personally been stopped by the border patrol many miles from the border...)
Federalist No. 28
> THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied.
Federalist No. 29
> THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
Article II then invests power over the militias, when called into service of the United States, in the President:
> The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
In other words, the Constitution put the President singularly in charge of what the framers considered the chief tool against domestic insecurity: the nationalized militias.
The justification for warrantless dragnet surveillance is to stop terrorists. The damage terrorists cause is literally negligeable when judged by your argument. If the Constitution was designed to react to military threats, terrorism is not a threat. You're more likely to die slipping in the shower than get killed by a terrorist, which is not the case when at war with another nation.
And this doesn't even touch on whether dragnet surveillance is actually effective (which it can't be, even in principle). As such, the justification for dragnet surveillance is so thin it's comical.
Besides that, it's almost certainly the case that terrorism has resulted in more deaths than has warrantless dragnet surveillance of cross-border traffic.
> Besides that, it's almost certainly the case that terrorism has resulted in more deaths than has warrantless dragnet surveillance of cross-border traffic.
I don't see how that's relevant one whit. We don't control terrorist actions, we do control our own government's actions, and the latter's actions are restricted by the constitution.
- "Let's challenge these theories in the courts"
- "the courts have decided that the application of the law is too broad and we're going to add clearly defined limits so as to protect the rights of our citizens"
How it is:
- "the courts can not review or speak about what may or may not be a problem because of FISA orders."
These cases take a long time to trickle up to the Supreme Court. And you would have to either convince one of the 4 solid left-wing judges to side against the administration (hah -- and before downvoting, look at the voting records) or have a unanimous opinion on the right, which was difficult even when Scalia was alive, and obviously not helpful now, since a split enforcing a lower court decision doesn't set precedent.
- Since our legal advisor claims that it is possibly legal, I will do the thing. In the case that someone has grounds to challenge the thing, I will face no penalty because I acted in good faith based on legal advice.
If a normal citizen tried that shit, they'd be rotting in jail.
Is that just a by product of the courts and law enforcement basically being two heads of the same beast or is there something else at work?
"The government assumes that any communication entering or leaving the country has a foreigner on one end — and thus is eligible for warrantless searching. As the new Brennan Center report makes clear, the implications of this position are especially dire given the global structure of the Internet, where even Americans’ domestic communications may be routed or stored abroad without the parties to those communications even knowing. "
He's correct. This position is dire. It also works in reverse. Any communication between two non-US residents that happens to transit the US is also subject to surveillance. Given the way global packet networks function, that means that almost any communication could be subject to surveillance under this legal theory.
As US networking companies' foreign customers have understood, that's an unacceptable -- and sometimes illegal -- risk. These policies haven't been good for US network business.
And, pretty soon the NSA could have T. Cruz or D. Trump at the head of the government they control.
Is there some reason the US security apparatus can't legislate in public? Is there some reason they can't make the case "here's why we are trustworthy"? They haven't even TRIED to make that case.
Of course but we (USians) don't care, spying on everyone else is the NSA's job and every country does it. I'm more concerned about these issues than the average USian but even I don't care much about applying things like the 4th Amendment to non-USians who are physically outside the country. Well, I don't care about it from a justice perspective, I do care about possible consequences like the Internet becoming balkanized.
> Is there some reason the US security apparatus can't legislate in public?
Why would they, how would it benefit them? Their answer would be that it's critical that they keep secret their "sources and methods," so the bad guys don't know what they're doing and also what they're not doing, whether it's because they don't have the capability or they're legally restricted from doing it.
Though its not this administration either. The Bust Administration before it drew up many broad interpretations of law, including the laws that have since been used for censorship (first in "Free Speech Zones" but since at Occupy and the media free zones around Ferguson).
As I'm sure you know, good fucking luck shorting Treasuries. They've been in a 35 year long bull market. As Keynes noted oh so long ago, "The market can stay irrational longer than you can stay solvent."
If you believe the entire model is intrinsically flawed and doomed to eventual failure, cryptocurrencies if you're technologically optimistic, or precious metals if you're not.