Justice Jackson on "Giving Up" in the Face of Tyranny

When I teach the Steel Seizure Case, the Supreme Court's seminal decision on domestic executive power during wartime, I tell my students that while Justice Black may have written the lead opinion, it's Justice Jackson's concurrence that they really need to study. I also tell them that while being a Supreme Court Justice is more than enough to earn one's Wikipedia page, Justice Jackson has another entry in the annals of history: lead prosecutor during the Nuremberg War Crimes trials following World War II. It was evident, I say, that Justice Jackson had this experience in mind when considering the question of permitting runaway executive power justified on the basis of a wartime "emergency."

With that background in place, I draw my students' attention to how Justice Jackson concludes his opinion; in particular, his recognition of the potential futility of the judicial branch trying to stand alone against a truly unbounded executive claiming emergency powers, and why that potential failure should not license judges to simply accept the ascendance of a tyrant:

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.... We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law"—to be governed by those impersonal forces which we call law.... The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

The other day, J. Michael Luttig -- former Fourth Circuit Judge and conservative darling turned sharp Trump critic -- published an essay in the New York Times insisting that Trump's war on the judiciary "won't end well for Trump." To this, Josh Blackman unsurprisingly argued the opposite, suggesting it is the courts that will lose this battle and that they should bend the knee to Trump and spare themselves the inevitable humiliation.

For my part, I don't know who will win this showdown (if a showdown there is to be). History does not inspire unalloyed confidence in either direction. 

But I do know that the courts must not surrender in advance.

Justice Jackson was right: it may be that the institutions that undergird our democratic experiment are destined to pass away. But the courts must be the last, not the first, to give them up.

Is the President Congress' Babysitter?

A newly-ascendent doctrine the Supreme Court has used to strike down disfavored executive regulations is the so-called "Major Questions Doctrine". The MQD, in essence, says that we should not assume that Congress has legislated on issues of major social or economic importance unless it does so very, very clearly. This means that even where the plain statutory text seems to authorize presidential action, courts can still nullify it if they decide that Congress' language was not "clear" enough given the magnitude of the policy at issue.

For example, in NFIB v. OSHA, the Supreme Court invalidated the Department of Labor's vaccine mandate despite statutory text authorizing OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID-19, of course, is an "agent" which poses "grave danger" to employees, so it would appear based on the plain language that Congress had authorized this course of action. But no, said the Supreme Court -- if Congress wanted to authorize OSHA issuing blanket rules covering essentially all employers across the entire economy, it needed to be even clearer than that.

Many critics have assailed the MQD as the Court abandoning textualism when it conflicts with conservative policy preferences. In response, conservatives have tried to argue that the doctrine can be reconciled with textualism because the MQD comports with how ordinary readers read texts. In the student loan case, Justice Barrett made a popular version of this argument:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….

Problem one with this defense is that it turns out Justice Barrett's intuitions may not be accurate. A new article actually empirically tested Justice Barrett's example and found that most respondents did not find the babysitter's actions to be unreasonable. Whoops. (Kudos to Ilya Somin for at least acknowledging that this study is countervailing evidence against his own affinity for the MQD).

But my problem with this analogy is a little different: is it really fair to characterize the President as akin to Congress' babysitter? The Executive and Congress are coequal branches of government. Their relationship is not as one-sidedly hierarchical as the parent who makes a one-off hire of a babysitter. If we adjusted the hypothetical so it was two parents, one leaving on a business trip and who tells the other "make sure the kids have fun this weekend!", I doubt anyone would find the choice of the stay-at-home parent to take the kids to an amusement park to be even remotely problematic.

Now, I'll concede a potential problem with the revised hypothetical: the relationship between two parents doesn't generally involve delegations of authority. Mom and dad both are generally authorized to make choices about the kids on their own initiative. By contrast, nominally under our separation of powers system the executive is only empowered to act upon authorization by Congress.

I'm not sure this objection fully holds, however, and in any event it can be easily traversed. It doesn't necessarily hold because -- as any couple knows -- lack of a formal hierarchy between spouses does not mean that it's impossible for there to be instructions and acrimony where they're not followed. If mom says "make sure the kids take a bath", and dad lets them get away with just running through the sprinkler -- well, woe is about to fall upon dad, and it'll be worse for him still if he comes back with "as a co-equal parent, I am equally authorized to make parenting decisions on my own initiative."

But even if we think the parent-to-parent relationship doesn't quite work, it still seems clear that the relationship between Congress and the President is still more distant from a parent and babysitter. So how about parent and grandparent. Take Justice Barrett's hypothetical, but it's grandma watching the kids for the weekend. Grandma, unlike dad, does only have delegated authority to look after the kids. But nonetheless, I think very few people would think that grandma's amusement park trip would be unreasonable or out-of-bounds. The fact that grandma is herself part of the family, and not some random acne-faced fifteen year old, makes a huge difference in terms of what should be deemed reasonable.

When Congress passes laws for the executive to enforce, it is not "delegating" power to some ad hoc temporary babysitter who may or may not ever be hired again for $20/hour plus tips. It is interacting with an intimate family member with whom it has a long-standing relationship that will continue across a multitude of cases into perpetuity. That sort of relationship, it seems to me, makes the MQD less feasible. That Congress wouldn't be presumed give some random stranger authorization to make "major" alterations to social or economic policy does not mean that Congress wouldn't be presumed to give the President of the United States such alterations -- particularly when we're talking about legislation that is by its nature inherently imbricated in issues of major social and economic concern (workplace safety, environmental protection, educational access, and so on).

Quote of the Day: Justice Jackson in the Steel Seizure Case

No comment other than to note that Justice Jackson took time off from his duties as a Supreme Court Justice to be the lead prosecutor in the Nuremberg Trials:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality, his decisions so far overshadow any others that, almost alone, he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Moreover, rise of the party system has made a significant extraconstitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system, as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on the President as leader both of his party and of the Nation, observed, "If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it."

I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. 

The essence of our free Government is "leave to live by no man's leave, underneath the law" -- to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. 

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

343 U.S. 579, 653-65 (1952).

Can Jared Kushner Be Barred From a White House Position?

Writing in The Forward, Akiva Shapiro suggests that the anti-Nepotism law which purports to bar Jared Kushner from a White House position is an unconstitutional impingement on the executive's appointment power. Is he right? I actually think the argument has significant legs,* but I do have some questions.

Shapiro contends that "[b]y design, the President must have the freedom to use whatever measures he sees fit in making any and all nominations and appointments." He cites Hamilton in Federalist 76 as saying that the President has the sole discretion in determining who should be nominated for an office, and contends that the Constitution's explicit limit on appointing a sitting Senator or Representative to an executive office also implicitly denies that there are any other limits on who the Executive can nominate.

This is well and good as far as it goes, and I find it persuasive in the case of Senate-confirmable appointments (where the appropriate check on the President's appointment power is the Senate's authority to vote yay or nay on the nomination). But Kushner's position does not demand Senate confirmation. Indeed, what makes this a difficult legal question is that, unlike appointing someone to a cabinet position, a role like Kushner's is not explicitly envisioned in the Constitution (thus making it difficult to glean what the constitutional rule is).

To clarify, let's go to the constitutional text: Article II, Section 2.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Kushner's prospective role as a political advisor is not (for reasons not worth getting into) an "Officer of the United States," and so does not need Senate confirmation. If he is an inferior officer, then Congress can decide who gets to appoint him -- the President, the courts, or the heads of departments. Here, of course, it is the President who gets to appoint his chief advisors. But in this context can Congress impose restrictions on who can be appointed?

Possibly. In United States v. Perkins, the Court considered whether Congress could impose restrictions on the removal of an inferior officer whose appointment went through the head of a department. Distinguishing the case of a Senate-confirmable appointee, the Court wrote:

We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.

The head of a Department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto.

116 U.S. 483, 485 (1886) (emphasis added).

On the one hand, Perkins is very different from the present case: It is a removal, not an appointments case, and it is departmental rather than an executive appointment. But the italicized language suggests that where an actor has "no constitutional prerogative of appointment" -- that is, where it is up to Congress to decide who gets to make an appointment -- then Congress has the authority to set the conditions upon which the appointment is made. If Kushner is an inferior officer, then, and subject to congressional rules regarding who gets to make the appointment, he may consequently be subject to congressional rules regarding who is allowed to receive the appointment as well.

This, in turn, assumes that Kushner is even an "inferior officer". Inferior officers, the Supreme Court has observed, are those "whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Edmond v. United States, 520 U.S. 651, 663 (1997). A purely political advisor doesn't seem to fit this mold either; there is no Senate-confirmable officer he serves under. And if Kushner wouldn't be a principal or an inferior officer, then there aren't any constitutional rules speaking to his appointment one way or another. This goes to the larger point that the modern executive branch qua branch, with its wide network of aides and advisors, really isn't contemplated in the Constitution at all.

So the question is, for those government officials whose appointment process is not spelled out in the Constitution, is it permissible for Congress to impose certain rules prohibiting nepotism or favoritism? In normal circumstances, I think the answer is yes, but I'm in agreement that the particular case of a close presidential advisor may warrant special attention. The existence of these sorts of advisors is thought to be intrinsic to the functioning of the Presidency as an institution, and it stands to reason that there at least the President must have absolute discretion in deciding who he will and won't receive advice from (this is similar logic to how we get the concept of "executive privilege", which is also unwritten in the Constitution). Under this view, it actually matters a great deal that Kushner won't be receiving a salary: it is one thing to guard against relatives receiving payouts from the public fisc, it's quite another to say that the President is forbidden from getting advice from someone just because he's a relative. Arguably, what matters most in the analysis here is what perks Kushner gets by virtue of his formal White House title that go above and beyond his pre-existing ability to advice the President at the pleasure of the President.

One final observation is worth making, then. Last week I observed that there is, in fact, very little law or regulation that requires good conduct out of our politician -- much less than one might expect. Much of what we take for granted as basic norms political behavior -- including, perhaps, not turning the executive branch into an arm of one's private or familial business -- are just that: norms. They exist because they are accepted to exist and because we don't tolerate departure from them. Which means that when someone tries to test those norms -- not releasing their taxes, indefinitely refusing to confirm a judge, appointing relatives to high-level governmental positions -- they don't enforce themselves. It's up to us to do it.

On this note, it is worth emphasizing just how dangerous the collapse of GOP commitment to nonpartisan constitutional, ethical, and ideological principles witnessed over the past eight years and now culminating in their utter capitulation to Trump is. Oversight doesn't happen unless the overseers decide to make it happen. Congressional checks don't happen unless Congress decides to act as a check. Democratic accountability doesn't happen unless the demos decides to hold people accountable. When these things don't happen, there is very little that formal law and rule can do to prop up what we let down. I get the sense that some people feel comfortable pushing the envelope around our political norms because they believe that nothing truly bad will happen; if things go too far someone will step in and self-correct. This just isn't true, and in many ways the election of Trump is proof of that. People let the conspiratorial conservative id rampage about unchecked because they assumed that it wouldn't really lead to anything too terrible -- surely, it wouldn't actually yield a President Trump. Well it did, because there's no deux ex machina to save us from what we've already proven we're politically willing to tolerate.

* In fact, I think it's all moot because I suspect Shapiro is correct in his prediction that no plaintiff exists with standing who could challenge Kushner's appointment.

Which Historical Leader Will Trump Most Emulate?

The opening odds:

Silvio Berlusconi ------- 2:1
Vladimir Putin ---------- 4:1
Richard Nixon ---------- 4:1
Hugo Chavez ----------- 5:1
Warren G. Harding ----- 6:1
Andrew Johnson -------- 6:1
Rodrigo Duterte -------- 8:1
Gamal Abdel Nasser --- 10:1
Benito Mussolini ------- 12:1
George W. Bush -------- 12:1
Teddy Roosevelt -------- 30:1
Adolph Hitler ------------ 30:1
Barack Obama ----------- 2000:1

He Said She Said

UC-Irvine Law Dean and noted constitutional law scholar Erwin Chemerinsky critiques originalism, and several prominent originalists including Ilya Somin, Michael Ramsey, and Mike Rappaport respond. The argument they are most disdainful of is Chemerinsky's assertion that the constitution's exclusive use of "he" to refer to the President and Vice President indicates that only men can hold those positions under the original meaning of the document. "Uncharacteristically weak," declares Somin, while Ramsey labels the claim "preposterous," an argument "so poor I wonder if someone else wrote it and attached his name to it." They both contend that until quite recently "he" was used as a gender-neutral pronoun, so it is impossible to infer that its usage in the constitution was meant to render the executive branch gender exclusive.

While they may ultimately be correct, I think Chemerinsky's argument has more heft to it than they admit. It was of course common practice to use "he" as a general pronoun, though whether that was because it was understood to include women or because it was understood that women were not relevant to the conversation is less obvious. "He" in relation to political positions could just as easily stem from a widely shared understanding that women were not political subjects. Ramsey musters some intertextual evidence to support his position -- that when Article II, Section 1 delineates the necessary qualifications for a President it speaks of a "person" rather than a "man." And that has some persuasive force, but the problem is that the same archaic convention which allowed "he" to stand in for men and women also allowed for "person" to refer only to men. There are plenty of occasions where dead white men spoke of humanity or people with the assumption and understanding that it was only men about which they spoke.

More broadly, while it may be true that "he" could at the time have been understood to include both men and women, it also certainly could be used to refer only to men (how else would one do it?). Whether or not it was taking the former meaning or the latter is an exercise in interpretation, and one that depends on context. "Men" was similarly generic in character to "he" at the dawn of our nation, yet it is hard seriously contend that the phrase "all men are created equal" was meant to include women. Would citizens during the framing era have understood "he", in the context of who the Constitution contemplated could be President, to be inclusive of men and women alike, or just men? I would wager the latter.

Now arguably this doesn't close the door on originalist analysis of the clause's meaning. Arguably, the popular belief that "he" in this context referred to men and men alone was only the original expected application of the clause, not its original semantic meaning. This is a distinction Jack Balkin draws, and not all originalists accept his typology. But working off it for a moment, it's unclear. Words and phrases often can have very different semantic meanings at the same time period (for example, "hot dog" can mean either a tubular meat or a show-off). Where multiple meanings exist at a given time, is a generally understood consensus that one particular definition attaches in a particular context a case of "expected application" or "semantics"? Not an easy question, in my view.

This is not to say that Chemerinsky is necessarily right and his critics wrong. I'm not an originalist, so I hesitate to make definitive pronouncement on what results originalism yields (in part because I think they're often more indeterminate than its proponents would care to admit). But I think his point has more gravity than its given credit for, and citing the linguistic convention that "he" could have been in that era a gender-neutral pronoun does not actually get us that far.

UPDATE: Relevant to this discussion is an interesting history of gendered pronouns in the English language. Apparently the use of "he" as a gender neutral pronoun was first proposed in 1745, so it was certainly accepted by the time of the Constitution's drafting and probably understood as a possible meaning in the abstract, though again not necessarily in the context of who could serve as president.

James Madison was a WOLVERINE

Interesting tidbit from Justice Scalia's Windsor dissent: He seems to endorse congressional guerilla warfare against the presidency as the right way for separation of powers questions to be hashed out between the legislature and executive.

Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition,"The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing toconfirm Presidential appointees to the elimination offunding. (Nothing says "'enforce the Act" quite like
". . . or you will have money for little else.").

Slip. op. at 14.

I bet I can guess his vote in Noel Canning.

In DC

Jill and I made it in alright, except that I came across this story, which is more horrifying than anything I could possibly imagine. I mean, you thought the DOJ was politicized under Gonzalez....

My President

President Obama. President Barack Obama. President Barack Hussein Obama.

It's all good, baby.

The Much Maligned Warren G. Harding

President Warren G. Harding is not exactly the most beloved of American historical figures. I wouldn't say he's reviled either -- more thought of as pathetic. Former Treasury Secretary William McAdoo stated:

"His speeches left the impression of pompous phrases moving over the landscape in search of an idea. Sometimes these meandering words would actually capture a straggling thought and bear it triumphantly, a prisoner in their midst, until it died of servitude and overwork."

I believe (though I cannot find it) that another contemporary once described him as "a good, decent man who should be lieutenant governor of Rhode Island." That might have referred to someone else -- but sentiment seems accurate enough.

Harding's stated sins are generally that a) he was surrounded by utterly corrupt advisers (though nobody claimed Harding himself was), b) he was politically mediocre, and c) he was an intellectual lightweight. But, while not exactly calling him a world-beater, Ilya Somin makes the case that Harding might be one of our most under-rated Presidents.

Harding made a well-known speech advocating full legal equality for southern blacks in 1921, in Birmingham, Alabama. As W.E.B. DuBois pointed out at the time, Harding went farther in advocating equal rights for blacks than any other post-Reconstruction Republican president (the Democrats, at that time the party of southern whites, were even worse). Indeed, no president went as far as Harding in advocating equal rights for southern blacks for several decades thereafter. Harding also lobbied hard for a federal anti-lynching bill to curb the rampant lynching of blacks by whites in the South - again, the first post-Reconstruction president to do so (the bill passed the House, but died in the Senate due to the threat of Democratic filibusters). As DuBois pointed out in the linked article, Harding was not wholly free of the racism common among whites at the time. But he was a lot better than the vast majority of his contemporaries.

Nor were these Harding's only positive aspects. As Gene Healy discusses in his interesting recent book, The Cult of the Presidency, Harding is also notable for reversing the severe violations of civil and economic liberties that had proliferated under his predecessor Woodrow Wilson. It's easy to belittle Harding's campaign slogan - "Return to Normalcy." But Harding's notion of "normalcy" included an end to the imprisonment of political dissenters (such as Wilson's notorious "Palmer Raids"), abolition of wage and price controls, and the reversal of Wilson's numerous illegal seizures of private property. As David Bernstein and I briefly discuss in this article, Wilson's administration was also highly racist and segregationist even by the standards of the day; here too, Harding was a sharp contrast.

All fair points, and worth considering. I particularly was unaware about his efforts on behalf of racial equality.

So let's have a cheer for President Harding: he really wasn't as awful as everyone makes him out to be!

We Can't Win. We Can't Leave.

Most shrewd military observers, writes William Arkin, now believe we cannot win in Iraq. Unfortunately, as David Brooks writes, a Democrat who actually tried to withdraw from Iraq would immediately sink his or her Presidency into a partisan mosh pit from which it might never emerged. But if that President decides to delay withdrawal, the left flank of the party will go ballistic.

While 2009 will be a welcome relief from the current presidency, lets not forget just how doomed we are.

Via Kevin Drum

Day In, Day Out

Michelle Cottle has an important observation on Fred Thompson:

With only three weeks to go until the caucuses, is it really possible that Thompson is going to at last get serious about the race and exert some sort of effort? I've always gotten the sense that ol' Fred likes to think of himself as a clutch player, the type of fella who doesn't need to work up a sweat in the early going then comes to life in the last few minutes of the game to carry the day. You saw this in his 1994 Senate run, where, in the closing months, Thompson perked up, hunkered down, and scored a major victory after getting his butt whooped for most of the race.

I suppose Thompson could still be plotting something similar in this election. But do we really want a president who thinks of himself as a swoop-in-at-the-last-second kind of guy? The presidency isn't really a "clutch" kind of job. Yes, you need someone who responds well under pressure, a strong leader who doesn't freak out in a crisis or buckle during intense negotiations. But you also need someone who can perform over the long haul, who can handle the daily grind and grinding anxiety of the job.

This is important, and the media needs to incorporate Cottle's words into the broader narrative of the hypothetical "Thompson surge." It matters because the media needs to take note of this if/when Thompson begins his last-minute push. I would not be surprised if Thompson at least makes a strong move back to the top in the waning days of the campaign. After all, the Republican electorate does not seem happy with it's choices, and Thompson's original rationale as a candidate was precisely to be the savior for conservative voters who had nowhere else to go.

But Thompson shouldn't be given bygones on his previously lackluster effort when covering this surge. It'd be one thing if had been chugging along diligently up to this point, and was regaining votes as Republicans decided to give him a fresh look. That's essentially what happened with Huckabee, and his move to the top of the pack was properly framed. It'd be easy to use that template all over again with Thompson. Easy, but wrong. Huckabee overcame lack of name recognition, but that won't be a problem if he's the leader of the free world. Unlike Huckabee, Thompson's prior mediocre polling is intricately connected with the type of President he'd make. Thompson will have to work hard every single day, day in and day out, if he's President. His lack of commitment to going through the grind is the sort of thing voters have a right to be reminded of, even if he's willing to buckle down in the clutch.

If You Want It, You Can't Have It

Dwight D. Eisenhower related a story that happened to him when he was a kid. He was sitting with his best friend by the creek, and his friend asked him what he wanted to be when he grew up. Ike replied that he wanted to be a baseball player -- a genuine professional like Honus Wagner. His friend responded that he wanted to be President of the United States. "Neither of us," Eisenhower reflected ruefully, "got our wish."

Hillary Clinton is literally using an essay Obama wrote in kindergarten, saying that he wanted to be president, against him in the primaries. I understand where she's coming from -- Obama has been jabbing at her for being too overt in her desire for the presidency. But this strike back smacks of absurdism.I know Hillary's great asset as a campaigner is that she lets no attack go unanswered. But she needs to at least train her fire more accurately -- the other anecdotes she has about Obama's early Presidential ambitions (say, the one's that date after college) are fair game. His elementary school education? Less so.

Meanwhile, I'm beginning to think my greatest qualification to become United States President is that I never wanted to be it as a kid. Not that I want it now. But if my country needs me, I guess I could be convinced to serve.

Oh Christ, No

Lou Dobbs is floating a Presidential bid. Via The Plank, which notes, reassuringly, that this is almost definitely just a ratings plug for Dobbs.

Pardons for Bush

Getting ready for bed last night, I was hit with a wonderful idea for the next Democratic President. At least, I think it's a wonderful idea. Tell me what you think.

On his first day in office, the new Democratic President should pardon George W. Bush.

I know, it galls me too. The number of crimes this administration is implicated in boggles the mind, and it is infuriating that they will likely go unpunished. But let's be serious here -- there is a precisely 0% chance that President Bush, or any top member of the Bush administration, will ever be prosecuted for anything. It would look partisan, it would look retaliatory, and it would end up being awful politics.

So why a pardon? Simple: you don't pardon people who haven't done anything wrong. The very act of pardoning Bush establishes him as someone who needed a pardon. Pardons damage the reputation of their recipients -- it's not like Nixon's pardon convinced Americans that he really just got a bad rap (even just-defeated Kentucky Governor Ernie Fletcher's spate of pardons, which he cast as protecting the targets from illegitimate prosecution, made both him and them look much worse than they were before). Meanwhile, President Obama the Democratic President looks magnanimous, moving the country forward rather than focusing on rehashing the malfeasance of the past. And of course, removing the specter of criminal prosecution from President Bush, under a variety of precedents, makes it easier to compel him to testify about the events in question, if that ever becomes necessary.

It is important to establish Bush's historical legacy as someone who ran one of the most corrupt, extra-legal administrations in the history of the nation. Prosecution would be the most direct route, but that's not going to happen. Counter-intuitive as it is, issuing a pardon would permanently enshrine Bush in that rarefied class of Presidents who needed a pardon -- and that would likely secure his legacy almost as well as (politically contested) indictment.

***

Link to the 2007 Weblog Award Polls: Vote Debate Link

Female Presidents and Original Intent

Tangenting from a discussion as to whether naturalized US citizens ought to be allowed to run for President (which would require a constitutional amendment), Texas Law Professor Sandy Levinson asks whether originalists can even allow women to run for President. After all, "If one is an original intent buff, one might want to interpret 'he' in the Constitution as barring women from running for president, since it surely the case that no Framer could have envisioned any such possibility." Article II begins by using "he" to reference the President, but then shifts to the gender-neutral "person." However, I recall reading that in the early days of the Republic, voting laws that did not specifically restrict suffrage to men were still interpreted that way by the courts. And indeed, I believe in New Jersey an early suffragist tried to take advantage of gender-neutral language, but was arrested by the authorities and prevented from voting.

It does seem difficult to argue that the founders would have anticipated allowing a female President, given the retrograde views on women held in America throughout most of its history. No constitutional amendment has specifically given women the right to President. The 19th amendment did grant them the vote, but one can be franchised and still be prohibited from holding certain political offices (as are naturalized citizens).

So it's a difficult question. Are originalists committed to disallowing women from running for President? Does Hillary Clinton need to follow the same route as Arnold Schwarzenegger and get a constitutional amendment to take her shot at the White House?