June 30, 1971

I think the most interesting part of this is the cast of characters in the room: The president is talking to Chief of Staff Bob Haldeman again -- but also Attorney General John Mitchell, National Security Advisor Henry Kissinger (again), Press Secretary Ron Ziegler, and Secretary of Defense Mel Laird. Needless to say, none of them seem to have pointed out that the president was proposing crimes, or even quietly resigned.

(By the way, I'll try to be consistent here; regular ellipses are from the transcript provided in Stanley Kutler, ed., Abuse of Power; I'm using bracketed ellipsese (i.e. [...]) when I'm skipping over things. Also, I'll provide a link if it's from a web source, usually the Miller Center. Emphasis here from Kutler).

--
President Richard Nixon:  They [Brookings] have lot of material...I want Brookings, I want them just to break in and take it out. Do you understand?
Haldeman: Yeah. But you have to have somebody to do it.
President Nixon: That's what I'm talking about. Don't discuss it here. You talk to [E. Howard] Hunt. I want the break-in. Hell, they do that. You're to break into the place, rifle the files, and bring them in.
Haldeman: I don't have any problem with breaking in. It's a Defense Department approved security --
President Nixon: Just go in and take it. Go in around 8:00 or 9:00 o'clock.
Haldeman: Make an inspection of the safe.
President Nixon: That's right. You go in to inspect the safe. I mean, clean it up.
---

Part of what's going on here that's terribly important is that the FBI isn't willing to do the things that the president wants; see this conversation between President Nixon and Attorney General Mitchell the previous day. As I've written, one way to understand Watergate is through the general notion of the weakness, not the strength, of the presidency. Nixon is supposedly at the top of the executive branch, but he can't get people in the various departments and agencies to do what he wants because they generally won't follow orders from the president -- that's not actually how the presidency works. It's not just illegal or unethical stuff; Nixon and his National Security Advisor Kissinger are busy running foreign policy without letting the State Department know what they're doing.So that's what's going on here: since the FBI won't do what the president wants, he's going to do it himself. That is, he's going to do it from within the White House. And in this one, we get the name of one of the people who is going to do what the FBI won't do, E. Howard Hunt.

GOP Politicians and Policy Basics

What really gets me worried about the debt limit situation, as I said over at Greg's place today, is the possibility that more than a few Republican Members of the House really believe their own rhetoric -- that failing to raise the limit is actually no big deal.

More broadly, I wonder just how little Republican Members are just not really up to speed on policy basics. Not that they would be the first group in Congressional history to have little idea of what they were talking about...there have been plenty of backbench Members who couldn't last twenty minutes talking about policy. But this group isn't your grandparents backbenchers. They appear to be, as Susan Davis reports, unusually unwilling to trust their own leadership. It's one thing if the bottom 25% of the majority party in the House is made up of policy illiterates who are willing to vote with the leadership in exchange for the things they want to keep them re-elected. It's quite another if that bottom 25% are a bunch of policy illiterates who, at the same time, believes it's best to think for themselves on every vote.

What I'd love to know? How many Members of the House Republican Conference have any idea at all of what ACA -- what they call "Obamacare" -- actually consists of. I don't mean the details; I mean a broad outline: exchanges, subsidies. Hey, maybe they really are reasonably well-informed; just because politicians use over-the-top or focus-group-tested rhetoric certainly doesn't prove that they really believe that junk. But I'd love to know.

Perry

I won't matter that Rick Perry's record in Texas isn't all he's claiming it to be, or so I argue in a new column up at TNR.

Alas, as soon as it was posted comes new polling showing that Perry runs worse in Texas against Barack Obama than do other GOP candidates, leading to a smart takedown of my column by Ed Kilgore.

Hmm....I guess what I'd say in response is a couple of things. One is that I strongly suspect that any lack of enthusiasm Texas conservatives have for Perry would certainly disappear in a general election contest, and might well fade even during a nomination fight. I could also try a (perhaps weaselly?) argument that I only said that his accomplishments or lack thereof in state government wouldn't matter: I never said that whether or not Texans like him doesn't matter!

At any rate, Kilgore is correct that Perry's weakness at home, whether it would matter at all in elections there, could certainly hurt him early on with the people who he would have to convince early on that he's a strong candidate. And it's possible, although not entirely certain, that his failure to make Texans love him could be an indication that people in Iowa and New Hampshire and South Carolina won't love him, either. So the poor polling, if it stands up, is probably a real negative for Perry.

I do think, however, that Perry's case for the presidency isn't really tied to, well, popularity. The case for Perry is that (1) he's safely orthodox on every issue that Republicans care about; (2) as a big-state, multi-term governor, he's obviously qualified for the presidency by conventional standards; and (3) there may be no other candidates who satisfy conditions 1 and 2.

Now, that case may not be enough to get him the nomination. But it doesn't rest on being popular in Texas.

Could the Supremes Pass On ACA?

Not likely, I realize, but you know -- stranger things have happened. We have more decisions to come, but it's possible, if not probably, that all the Circuit Courts will find that ACA is constitutional. Even if that happens, the Supreme Court certainly could decide to take the case anyway. Still, I figured I might as well mention that it's not an absolute, iron-clad certainty that these cases will wind up going all the way.

Good analyses of yesterday's decision? Andrew Koppleman has a good overview, and I'm not sure I agree with Adam Serwer's take, but it's very much worth thinking about.

Yes, But the Debt Limit Will Be Raised

Ezra Klein has an interesting post this afternoon arguing that the president's decision to go public is a sign that there's no deal to be had on the deficit, and that there won't be until after the deadline is reached.

That may well be true. However, there's one important piece of the puzzle to always keep in mind: before the deadline or after, sooner or later the debt limit will go up. Which means that sooner or later, a majority of the House is going to vote to raise the debt ceiling. So will a majority of the Senate -- quite possibly, a filibuster-proof majority. And the Barack Obama is going to sign it.

Now, this may happen after the House votes down one or more attempts; it might happen after one or more presidential vetoes, or after one or more cloture votes fail. It may happen after the nation plunges into an economic panic, or after crazed Social Security (non-) recipients and government contractors storm the Capitol. Indeed, I agree that it's perhaps more likely than not that it will take something like that to push everyone over the line. But over that line, sooner or later, they'll get.

And everyone knows it. Everyone knows that sooner or later Barack Obama and John Boehner are going to sign off on something -- it takes a presidential signature, and there's no conceivable way to get to 218 votes in the House without Boehner, and as I've said the odds are good that it needs Eric Cantor, as well. Obama knows it. Boehner knows it.

I'm not sure how that will play out over the next several weeks. But any analysis of the players involved has to include that eventually, they are going to sign off on increasing the debt limit.

Permeable Parties and Action

Ready for a long post about activism and democracy? Sure you are!

I absolutely agree with Matt Yglesias that if you feel strongly about an issue, it's a good idea to write to your Member of Congress about it.

More generally, I think people who have never participated in politics generally overestimate how difficult it is to get involved in meaningful ways. Now, to be sure, there are real limits: in a nation of 300 million people, no one can expect to effect change on the first day of activism. But in fact, government policy and the policy positions of politicians change all the time, and change usually happens for a very basic reason: people take action.

So I recommend to people that if they do happen to care about something that it's well worth getting involved. Three recommendations. One is that if it's something that local governments can do something about, that's an excellent place for a solo activist to have quite a bit of leverage, at least in some circumstances. A second one is to join an interest group -- or to start one yourself. The latter is shockingly easy, especially these days, and especially for anyone with skills and resources that are useful (skills such as writing and organizing; resources such as money and, especially, time).

But my main recommendation would be to get involved in party politics. Think that Democrats should return to gun control (the subject of the John Sides post that Yglesias was working from)? Get involved in the Democratic Party, and advocate for it. Think that Republicans should be more concerned about deficits than taxes? Show up, get involved, speak up.

Now, when I say to get involved in party politics, I'm talking about parties, broadly understood -- what in an academic context I call "expanded" parties. That means formal party organizations, but it also means candidate campaign organizations, or party-aligned groups, or even party-oriented media. The same skills and resources that matter on one's own turn out to be extremely helpful in getting involved in party politics, either locally or nationally.

It's true that full-time professionals have a disproportionate share of influence, and some believe that those with one particular resource -- very large amounts of money -- also have outsized influence (my own view is that the latter is generally overstated).  And, once again, one must be realistic, which is often quite frustrating: if you walk into campaign headquarters of a six-term Member of the House and demand, after half an hour of working the phones, that she pass the bill you like on the floor of the House next week and get it signed into law...well, that's not going to happen. But put in a few (really, only a few) hours, and before long you'll wind up having a chance to make your case for why she should co-sponsor the bill you want. Get a few of the other volunteers on board (and of course the more hours you put in, the better the chances that you'll do that), and you'll have a pretty decent chance that it'll happen (depending, always, on whether there's strong opposition and lots of other constraints). And every Member who cosponsors a bill makes it easy for the next Member to do so -- the big question on co-sponsorships is often "who else is on the bill?", and so getting one politician on board can often lead to others climbing aboard, as well. Of course, it's not only volunteering in a campaign; you can also become a regular donor, at least if your resources are money, not time. You can write at one of the ideological web sites, and convince others that your issue has been unfairly neglected. You can even get involved in formal party organizations. Local precinct chairs may not have a ton of influence in most places, but the trade-off is that there's usually very little demand for the jobs, so one can get seriously involved pretty quickly.

The point is that political parties in the US tend to be highly permeable for those who decide they want to get involved. And if you look at cases in which the party changed (Republicans and abortion, Democrats and same-sex marriage) you'll find, usually, a mixed bag of top-down elite maneuvering alongside bottom-up activism. Twenty years ago there were essentially no elected Democrats who supported what Democrats now call "marriage equality." Ten years ago, it was a common position; today, it's practically required in many parts of the nation for any candidate who wants to win a Democratic primary. Of course, one of the reasons that changed was that the polling changed. But as Sides tells us, there are lots of issues that poll well; I'd be willing to be that the reason Democrats flipped on this one was that the sorts of people who volunteer for, work for, and donate to Democratic politicians in 1990 rarely believed it was an important issue, while in 2010 they overwhelmingly believed it was a high priority.

Back to parties: one of the reasons that parties in the US are so permeable is because so many individual elected officials matter, and because selecting nominees is relatively, and sometimes extremely, decentralized. That's changed over the years (national parties as such hardly existed, in my view, before World War II), but it still is basically true. Indeed, it's one of the reasons that I believe keeping a strong Congress is so important: because if it matters what Senator Jones and Member of the House Smith say, and if it's fairly easy to get involved in their campaigns in meaningful ways, then the barriers for entry into national politics are very low. And in my view, that's where meaningful democracy can happen. Democracy requires voting, but voting is a very weak act, even in the best of circumstances, and voting on national politicians in a policy of 300 million is certainly not the best of circumstances (I mean, you and I probably can't say, or at least say accurately, what our vote for Barack Obama or John McCain "really" meant, let alone hope that national politicians will figure out what it meant and then translate it correctly into what to do about the debt limit negotiations or Libya or whatever). No, real democracy requires more: it requires ways for citizens to get involved meaningfully if they want to. And in practical terms, that means having political parties open to influence.

So two things: first of all, if you want to change something, good news: in American politics, it really is possible for people to get involved and have a reasonable chance of having an effect. And, second, a principle for reform and political regulation: it's important to keep political parties permeable and open to change.

The Options for Democrats on Recess Appointments

As they threatened, House Republicans are blocking a Senate 4th of July recess in order to prevent any recess appointments Steve Benen thinks that's game, set, match:

The White House has been under a fair amount of pressure from the left lately to use the recess to make key appointments. It’s unclear whether the West Wing is inclined to use the president’s prerogative or not, but so long as these Republican tactics continue, it’s a moot point — Obama can’t make recess appointments if there’s no recess.

That's not necessarily true. I wrote a long post earlier this week laying out the rules and interpretations surrounding recess appointments, and as near as I can tell there's quite a bit of uncertainty. However, Obama and the Senate Democrats do have options available:

1. Obama could make an appointment despite the recess technically being under three days. The three day minimum for a recess to "count" goes back to a Clinton-era DOJ opinion; not only is that not necessarily binding anyway, but Obama could simply say that the Fourth of July is a de facto regular holiday recess regardless of whether the Senate holds brief, pro forma sessions or not. Note that George W. Bush followed the Clinton-era guidance when the Senate refused to "recess", so there's precedent against it; on the other hand, in that case the Senate was doing it of their own choice, while this time Senate leadership could be on the president's side.

2. The Senate could appeal to Obama's authority under Article II, Section 3 to resolve the dispute in favor of a July 4 recess. As far as I can tell, this is an untested presidential power.

In both cases, the odds are that the courts would be called on to resolve the dispute, and it's not at all clear what they would say.

The other thing that Obama and the Democrats could do is to work on the underlying problem of Senate obstruction by threatening to eliminate supermajority requirements for executive branch appointments. After all, the goal for the president is to fully staff the executive branch, and he'd certainly rather do that the regular way than through recess appointments.

In fact, Barack Obama has not treated executive branch appointments as a high priority (and has been hesitant to make recess appointments even before this latest GOP tactic), so I don't know that it's likely that he would push back hard now. If he wanted to, however -- and he certainly should -- he does have options.

Crazy in the GOP Nomination Process

What Michele Bachmann says about the debt limit may not be a gaffe, but it's a bigger deal than a gaffe. That's what I said over at Greg's place today. Greg, meanwhile, is focusing on her minimum wage remarks. He and I were just chatting on the phone...what I said to him, which I figure I might as well recycle into a quick post, is that I expect this kind of thing to happen again and again throughout the next six or seven or eight months, until the GOP nomination is settled. There are two things going on. First, all the incentives on the Republican side right now are pushing candidates to the right. And, second, the ever-popular epistemic closure argument: at this point, it's fairly likely that both candidates and staff are losing track of which rhetoric, and which positions, really sound totally nuts to people outside that bubble (which, remember, is most of the American people, and especially most swing voters). 

What's important to note are the dogs not barking: you're not going to see any Republican candidate come out and say that of course it's a bad idea for the United States Government to default, or that the minimum wage is a settled issue (whether or not the minimum wage is a good idea, it's been a solid consensus opinion for decades; indeed, usually increasing it is highly popular). 

I said this a while back, but I'll repeat it: I continue to think that the odds of a crazy nominee are low, but the odds that someone will be nominated who has said crazy things keeps going up.

Catch of the Day

I hope you all know the go-to place for all questions about the calendar of primaries and caucuses for quite some time. No question about it; you want political scientist Josh Putnam's Frontloading HQ. More details than you can shake a stick at, along with plenty of good reference materials about the calendar and other presidential nomination info.

Oh, and, today's CotD. Actually, it's a good overview of the major changes in the calendar since 2008; Josh is responding to a Politico story that mentions the possibility of a frontloading stampede during this cycle, and he knocks down that idea. Quick version: when all is said and done, the odds are that the process will once again start in January, not February as the national GOP parties hoped, but will then be more spread out than it was in 2008. Highly useful, and nice catch!

Nomination and Confirmation Update

The Senate continues to chug through judicial nominations, but at a slower pace, I think, than earlier this year. Last week, they confirmed District Judge nominee was confirmed Michael Simon, by a 64-35 vote. That now leaves 89 remaining vacancies, down just a bit from the beginning of the year, when it was just over 100. I should note that Barack Obama has been doing quite a bit better at actually making nominations in the first place; there are now "only" 33 vacancies without a nominee.

Did I mention that it was a 64-35 vote? You may not think that's any big deal. You would be wrong.

This is the third closely contested District Court vote this year: Simon, 64-35; Chen, 55-42; McConnell, 50-44. I pulled up the 109th Congress for comparison -- that's 2005-2006, with Republicans in the majority and George W. Bush in the White House. There were five recorded votes on confirming District Judges in the 2005, and another 12 in 2006. Total votes against those nominees: zero. Zip. Nada. Every single one was unanimous.

Look, Republicans have every right to oppose (lifetime) District Judge appointments, whether on ideological or even just partisan grounds. But everyone should be aware that in this, as with so many other parts of the process, Republicans are breaking with norms and precedents. I've been pretty harsh in my criticisms of Barack Obama for moving slowly on nominations, but it's also true he's dealing with unprecedented obstruction: from holds, to filibusters, to foot-dragging at the committee level...even insisting on recorded votes (18 already this year, compared to 17 in all of 2005-2006) is a form of obstruction. If Republicans insist on obstructing, then Democrats should, in my view, feel free to fight back in turn by using the rules just as creatively and aggressively.

And for judges, they should do it now. Even if Barack Obama is re-elected, there's every possibility that he'll be confronted by a Republican Senate. And if that's the case, this is going to look like a picnic; it seems quite likely to me that many nominations, perhaps all of them (especially at the appellate level) just won't come to the floor, even if they have strong majorities.

Bachmann's Fine Line

Ed Kilgore has an excellent piece over at TNR about the challenges Michele Bachmann faces as she tries to move from gadfly to actual presidential contender. As he points out, she's going to be pressured, both by the press and by rival candidates. Click through and read the whole thing for his analysis, which I think is quite good.

To add to it, however, I'd say that Bachmann's sweet spot is, it seems to me, exceedingly small. If she gives conventional answers to tough questions, she runs the risk of being Just Another Conservative, albeit one with a back-history of oddball statements and positions. In other words, by doing what she can to reassure the people in the party who care about winning in November, she risks her ability to stand out from the Cain-Santorum part of the field.

Another way to look at it: there just isn't much actual policy space to the right of Romney, Pawlenty, and (presumably) Perry for Bachmann to occupy by herself, even if she could monopolize that space -- at least, not much space that won't get her labeled a nut. That leaves attitude, not policy positions, but the sorts of things that signal that she's a true believer are problematic for plenty of people.

And yet if she doesn't do that...well, we're a long ways from Iowa, still. Six months of campaigning as a regular mainstream conservative, and it wouldn't be surprising if a lot of rank-and-file voters see her as one, and look to Cain or one of the others (Roy Moore!) for a real insurgent candidacy.

Which gets back to Kilgore's point: she's going to be tested, and she's going to have to be an awfully good politician to get through it and wind up as viable as many (but, still, not me) currently believe she is.

Catch of the Day

Shared, to Conor Friedersdorf, who explained why "Are you a flake?" is a softball question to ask a presidential candidate, and to David S. Bernstein, who tweeted it earlier.

For those behind the news a bit, this is about Chris Wallace of Fox, who asked it of Michele Bachmann this morning. Friedersdorf and my brother are exactly right -- it's a question that just tees it up for the candidate to say whatever she wants and, if she's so inclined, to also complain about being picked on by the press. Although as James Fallows pointed out earlier, Bachmann has shown at least some basic skills at handling tougher questions, too.

All that said: I'm just as much of a Bachmann skeptic as ever. Let me just hit one part of it...Jonathan Chait believes that Bachmann skeptics are missing an important point:

[T]he religious right has changed -- its power to bend the party to its will has decreased, and its focus has largely merged with that of the GOP as a whole, so that the religious right is almost as concerned with economics and foreign policy as with social issues. Bachmann represents that transformation...And there's hardly any difference in the way she discusses these issues and the way most other Republicans do. They are all speaking the same apocalyptic language now.

I think Chait is correct about Republicans, and conservatives, and Bachmann. Where I think he's wrong is that I don't think that's going to set her apart from the rest of the field -- certainly not Santorum and Cain, but also not from Pawlenty and Perry, and on issue positions and current rhetoric, probably not from Romney, either. I definitely do think that a candidate from Bachmann's wing of the party can win it; I just don't think that it's likely at all that Bachmann can.

"Imitate Nixon" is So Rarely a Good Idea

I strongly recommend Andrew Sprung's epic takedown of a particularly awful column by Gideon Rose in the Sunday NYT.

Sprung hits most of the important points, but there's one more worth making. The Nixon theory was that the danger for the US in leaving Vietnam and allowing the loss of South Vietnam to appear to be US policy would be that future allies and enemies alike wouldn't trust the US to stand by its friends.

But that's a dubious proposition to begin with if, as Nixon expected, South Vietnam was going to fall anyway.

Moreover, it's not the only possible lesson that enemies could draw from Nixon's strategy, which after all, as Sprung points out, was extremely costly to the US. The other lesson is what apparently bin Laden believed: that the US could easily be enticed into fighting long, drawn-out stalemates -- and that once in, it was fairly easy to keep bleeding it indefinitely. As long as you (that is, bin Laden or North Vietnam and it's allies) are willing to absorb the damage, too.

Generally, "we're easily duped into doing something stupid and self-damaging" isn't nearly as wise a message to send as Nixon, and Rose, seem to believe it is.

That Cuomo/Obama Thing

Nate Silver accurately, I believe, reports that Andrew Cuomo's leadership in getting same sex marriage passed is "a brand of leadership that many Democrats I speak with feel is lacking in President Obama." But Matt Yglesias correctly points out that institutional rules have a lot to do with that perception. He's correct, of course (and see Jamelle Bouie for more), but I'd add that there are a couple of other issues involved here.

1. In large part, we're more aware of liberal frustration with Obama because Obama's overall approval ratings are only middling-to-weak (mid-40s, basically, approval ratings), which in turn is all about the economy. Now, perhaps Obama would have passed a much stronger stimulus bill (or, I think more likely, he would have passed several significant additional supplements) if simple majorities were enough to get something through Congress, and in turn perhaps that would have yielded a significantly stronger economy. But in my view, simply passing more stuff, or passing stuff that was a bit closer to liberal preferences, probably would not change the perception.

2. OK, c'mon: what else do liberals really care about in New York State government? My guess is that if liberals scrutinized everything that Cuomo did this year the way they do Obama's record, they would find plenty of room for criticism (indeed, NY liberals who pay attention to state government aren't happy, I believe, with his budget choices).

The truth is that the 111th Congress was very, very productive. Certainly, liberals didn't get all they wanted. That's a normal part of how Madisonian politics works, not some sort of weird Obama anomaly. The other side of the truth is that the 111th was well set to pass lots of liberal stuff: it was an unusually Democratic and even more unusually liberal Congress. And yet a third side of the truth is that the challenges were unusually stiff for the majority: when the economy is tanking, it's a lot harder to deal with those things you believe are priorities in normal times.

Was the current session of the New York legislature unusually productive? Was it unusually productive in passing liberal priorities? Was it unusually productive, given its ideological and partisan composition? Given the particular challenges the New York state government faced? I have no idea what the answers to these questions are, and I suspect that no one knows the answers. I, too, liked the NYT article about Cuomo's success with same-sex marriage, but I'm certain that a similar article could have been written about Barack Obama and don't ask, don't tell, or about Obama and the New START treaty, or even about Obama and ACA. What I do know is that we're less likely to look for those Obama stories when he's currently facing setbacks, and more likely to think about Obama and climate, or Obama and the Too Small Stimulus. And I also know that people who don't care much about New York State government -- which is almost all of us, including even many who live in New York -- are highly unlikely to be very aware of whatever Cuomo failure stories (if any) that may exist.

(See also John Sides, who has other interesting comments on NY and Cuomo).

Recess Appointments, A Guide (First Draft)

What are the rules about recess appointments? Can House Republicans really prevent Barack Obama from making recess appointments?

I like to think I know quite a bit about both Congress and the presidency, but I know I get fuzzy when it comes to specific rules. There's a lot of speculation out there, and I realized I didn't know the answers, so I decided to do a bit of research and write what I hoped would be a definitive post on the subject. However, it turns out the answers are unclear. So I'm going to write up what I learned from looking into it over the last several days, but I'll revisit and revise if I lean more.

Here we go. First, short answers.

Q. What's counts as a recess?

A. The current practice is that a recess within a session of Congress must be at least three days to enable the president to make recess appointments. However, it's not clear whether that practice, from a Clinton-era DOJ statement, is binding or not, nor whether there is in fact any Constitutionally mandated minimum length of recess.

Q. Can the House force the Senate to stay in session, thus preventing recesses longer than three days?

A. No one seems to have any idea at all, but there appears to be a presidential power to force a recess.


Is that uncertain enough?

Okay, now, the details.

1. What counts as a recess?

There are two kinds of recesses: between sessions of Congress, and within sessions of Congress. (I should quote, my emphasis: “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). The current practice is that for within-session recesses, the break must be three days or more to count for the Constitutional standard. This has been adjudicated, in a 2004 case that reached the Court of Appeals (Evans v. Stephens), in which the 11th Circuit said:

The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set that limit today

A decade earlier, a Clinton administration DOJ memo stated the three-day-minimum opinion, which as near as I can tell was the first time any specific lower limit has been articulated by the executive branch (or, for that matter, any other branch). It is unlikely in practice that the Obama administration would violate that opinion, which both Clinton and George W. Bush respected, but it seems to me it is entirely unclear what would happen if Obama claimed that, say, a weekend counted as a "recess."

What is worth noting is that the courts have ruled on recess appointments several times, and therefore we could expect any Obama action in this area to be judiciable (although I assume that for a case to go forward it would take someone affected by official acts of the recess appointee; Congress wouldn't have standing to simply challenge the appointment in the first instance. Lawyers, am I correct?). Presumably, judges would rule, if forced, that there is some minimum limit to a in-session recess; if not, presidents could make recess appointments every night after the Senate goes out, thereby circumventing the normal nomination/confirmation process (almost) entirely.

One thing to add: in addition to recesses during Congressional sessions, there are also recesses between sessions; indeed, until the 20th century that was when recess appointments happened, and the legal status of in-session appointments wasn't yet clear.

House Republicans are threatening to keep in session through December in order to prevent any between-session recess appointments. However, the president would have precedent, albeit a contested precedent, on his side. In 1903, Teddy Roosevelt made 160 recess appointments between the first and second sessions of the 58th Congress (here, see 10) even though the second session began immediate after the first session ended (on December 7 at noon). In my view, it is unlikely, although possible that the courts would throw out recess appointments made during a longer, but still very short, recess between sessions.


2. Who wins if the Senate wants a recess and the House doesn't?

At the end of the George W. Bush administration, Democrats in the Senate used an innovative strategy to block recess appointments: they stopped taking recesses. Now, House Republicans are trying to block Obama's recess appointments with the same tactic. The key is the Article I Constitutional rule that neither House of Congress can "adjourn for more than three days" on its own, so if the House doesn't take a recess, then the Senate can't, at least for more than the three days that would allow for appointments under the current interpretation (which, remember, is not necessarily binding).

However, Public Citizen's David Arkush points everyone to an Article II provision, which says that "in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." Arkush interprets this to mean that if the two Houses disagree on whether to take a recess or not, the president would be able to resolve the dispute.

Is that correct? After asking around a bit, I can't find any answers, including any precedents. As far as I know (and again, I'll revise if I learn any more), this is an unused presidential power...certainly recently. The power does receive one brief mention in Federalist 69 (by Hamilton): "The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment." Hamilton is at pains to show that the president's power is limited, so it's interesting that he doesn't emphasize any potential limitations of the adjournment power; for him, it appears to be, as Arkush has it, simply triggered by disagreements between the House and the Senate.

Now, in the event, it may be unlikely that a president who has been quite hesitant to make recess appointments in general would assert a possibly untested presidential power in order to protect his ability to make those appointments. But that's a different story; we're interested here in what the president can do, not what he may do.

Is it likely that the courts could act to protect the House if the president tried to assert this power? In this instance, unlike the question of a recess appointment during a very short recess, it seems to me that the House would definitely have standing to challenge the president in court. And I do think that it's the sort of thing that the Supremes should legitimately have some say in. As far as what they would say...well, after 2000, I don't like to speculate on that sort of thing.


Additional Sources: CRS FAQ; CRS Legal Overview. I also consulted briefly with Congressional scholar Sarah Binder and presidential scholar Matthew Dickinson, but all responsibility for mistakes here lies with me, not them.

Sunday Question for Liberals

Who do you think will be the Republican presidential nominee in 2012?

Sunday Question for Conservatives

Regardless of who you want to win the presidential nomination, who do you think will win it? And, before that, which candidates do you expect to still be in the race after Iowa and New Hampshire?

What Mattered This Week?

Sometimes, the obvious things are correct. I'm confident that Barack Obama's decision on Afghanistan mattered; I'm confident that the New York Senate's decision on same-sex marriage mattered (for more, see Andrew Sullivan, natch).

As I said over at Greg's place, I don't really think that Eric Cantor's walk-out mattered much. I'm not sure I wrote that as carefully as I should have, though, so I'll clarify here: I'm not predicting that an agreement will be reached before default, or some (more likely) some other serious consequences for missing deadlines. All I'm saying is that eventually, they're going to raise the debt ceiling, and that in my view Cantor will have to support it. I should say, however, that while I'm figuring that at least a slim majority of House Republicans will eventually have to bite the bullet and vote for a higher debt limit, Stan Collender sees only about 100 of them doing so, and he might well be right.

The other one that I'll say didn't matter much were the Congressional actions and rhetoric on Libya.

I'm not sure about whether what David Petraeus said about torture this week mattered or not, but I'll steer you over to Adam Serwer and Conor Friedersdorf for more.

So, what do you think mattered this week?

Friday Baseball Post

Giants this week...I think I've actually already written this post once, a few weeks ago, but: what a goofy season. With tonight's win, the Giants are now 42-34...and have been outscored 261 to 268. That shouldn't work out. Helps to be 20-11 withing the division, too.

It's hard to call it a lucky season, though, with all the injuries. Or maybe it is a lucky season: Vogelsong??? I don't know. Normally, I'd be shouting about an outscored team has little chance of keeping to the same pace, but right now...I just don't know. It's easy to see a possibility for improvement at several positions, no? Not guaranteed, but very possible. Perhaps the bullpen goes south, but I'm not sure there's a reason to believe that overall they'll start giving up more runs. If they figured to get the team healthy by mid-July, I'd say that things looked very good; as it is, a lot seems to depend on just how bad 2B and C will be.

Just to be clear: I certainly don't expect them to outplay their Pythag from this point on. But given that those games are in the books, well, I'm still awful afraid of the Rox, and it's not that I'm exactly confident, but I'm also not exactly expecting the sky to fall. Which, again, just seems really weird.

Read Stuff, You Should

I'll start with a request. I'm writing up a post (I guess it'll be for Monday) about the various rules and controversies about recess appointments. If you're an academic or practicing expert and think I should include what you know about it, please get in touch. Especially if you know things that aren't in the CRS reports.

And now for the good stuff:

1. Josh Barro is a budget realist (all budget idealists should click on that one); David Frum on the inflation generational cohort effect; and Matt Yglesias on a USA built on bailout.

2. National Journal has demographics on top Hill staffers; Shani O. Hilton follows up.
Conor Friedersdorf explains politics to the neocons.

3. Alex Klein explains the (severe) limits of InTrade's early presidential nomination pool.

4. Brendan Nyhan on gridlock and scandal.

5. Odds are you've already seen this one, but Nate Birkhead on gender and Members of Congress.

6. Daniel Larison on ideology and missile defense.

7. Yglesias used the Anthony Weiner mess to think about evaluating politicians. Ezra Klein used it to think about Congressional history and ideology. Both are must reads, although I'm obviously a sucker for anyone talking about Nelson Polsby and air conditioning.

8. Jared Bernstein on immigration.

9. Andrew Sullivan on conservativism. And an appreciation of Sullivan (who, in my view, is oddly enough underappreciated) from Hendrick Hertzberg.

10. And it's the weekend, so how about some fun. Dr. Frank remembers college radio; Steven Rubio thinks about blogging; and Tom Nawrocki has a wonderful essay on Silly Love Songs.


And some housekeeping: A wonderful post on the Ministry of Magic by Alyssa Rosenberg reminds me that I'm painfully aware that I've fallen behind in composing Monday Movie Posts. It's because, well, I haven't been watching anything new to write about. Two culprits: the baseball season started, and I've finally started belatedly watching The Wire. I'm early in Seasons 3, so no post on that for a while, most likely. If you're interested...with one or both of our kids, we're finishing up DS9 (five episodes to go; I love the Kai Winn and Dumar plots); well into Buffy Season 4; just finished Firefly and Serenity; just started BSG; about halfway through Python and Star Trek; and just got started on Ellery Queen (we're also on haitus from SNL Season 2, Star Wars: Clone Wars, and Cheers, second-to-last season). All of which is terrific fun, but none of which is likely to produce any good Monday Movie prospects. I have a few things ready to watch, but I just haven't had any success at getting to them. So if there are any MMP fans out there, my apologies, and perhaps I'll get back to it soon.

Alternate

One of the things you'll hear -- for example, from Ross Douthat today -- is about the difference between projected deficits based on current law, and much lower deficits based on an "alternate" version. This gives rise to the claim that if only Congress would do absolutely nothing, the deficit problem would melt away.

Perhaps I'm only nitpicking, but I really think this is misleading.

There are four things (or at least four significant things) that CBO puts into it's long-term budget scenario, the one that shows Congress acting (and therefore making the deficit situation worse. But these things are not all alike. Two are, I think, absolutely consensus policy: the doc fix, and the alternate minimum tax. As far as we know, both parties are fully committed to doctor reimbursement rates higher than those in current law, and to prevent middle-class taxpayers from the reach of the AMT. The only reason the law differs from the clear policy of both parties is an artifact of budget rules; those rules impose costs for permanently changing the law that can be ducked by year-to-year fixes.

The other two items, however, are very different. CBO's calculated scenario assumes that (contrary to current law) the 2001 and 2003 Bush tax cuts will continue to be renewed, while the taxes included in ACA will not survive beyond 2020. Unlike the first two items, there's no consensus at all on these two. Republicans would make the Bush cuts permanent, and repeal ACA (entirely, and immediately); most Democrats, however, would preserve the ACA taxes, and virtually all Democrats would modify or eliminate the Bush tax cuts.

I'm not really sure how CBO goes about choosing which things to put in the alternate scenario, and which not to. The common-sense reason to include something would be if current policy deviates from current law, and there's good reason to believe that the law will get changed to match policy. But I'm not sure I believe that's the case with regard to at least some of the 2001 and 2003 tax cuts, and I don't at all think it's the case with ACA taxes. Those are contested, not current, policy; it seems to me that CBO is guessing the outcome.

Regardless, it's the first two items above that are problems for those who claim that "if only Congress doesn't act" the deficit problems will clear up. Because in either of those cases, Congressional inaction would be a significant policy change, one that there's apparently no appetite for in Congress (nor, as far as I know, among the pundits who suggest it.

Now, one can qualify this a bit...Ezra Klein is correct when he points out that Congress could continue, say, AMT policy and pay for it (either through spending cuts or tax increases), thereby keeping the deficit in check. But I'd argue that paying for either the doc fix or the AMT fix would be policy changes, not policy status quo -- the (fixed) AMT is just as much a part of everyone's real-world calculations going forward as any other portion of the budget. Projecting it to continue is no different than projecting discretionary spending (which also must be passed by future Congresses). After all, if Congress stops passing appropriations bills the deficit would be reduced (well, sort of, if it didn't destroy the economy).

Add all that up, and I think it's just unhelpful and misleading to say that inaction is a plausible route to fiscal control.

Silly Liberals and Their So-Called "Facts"

Jonathan Chait is sadly misinformed about economic history and taxation levels over the last thirty years.

He writes that conservatives opposed tax hikes in 1982 and claimed they would derail recovery; that conservatives opposed Bill Clinton's tax hikes in 1993 and claimed they would tank the economy; and supported George W. Bush's tax cuts in 2001 and 2003, claiming that they would spur economic growth -- but that each time, the opposite happened.

This is obviously wrong.

Bill Clinton's tax hikes in 1993 pretty clearly caused the 2001 recession, and despite the heroic efforts of Republicans, the hangover from those tax hikes moderated the otherwise exceptional growth rates of the Bush years. I mean, the Bush years between recession and even bigger recession. Which we'll get to later.

So why did the economy grow so fast in the 1990s? No question about that -- it grew because of the Reagan tax cuts of 1981. Now, granted, those tax cuts couldn't prevent a recession in 1990-1991, which was caused by Clinton's tax increases in 1993, but the effects of the Reagan tax cuts kicked back in again around 1994 and resulted in several years of excellent growth.

Now, what about that 1982 tax increase? That's easy: if we never speak about it, then it didn't really happen, and it can't really affect economic growth. Indeed, Chait risks contributing to the current economic tough times by mentioning it now, and potentially risking the economic confidence about taxes that is the only reason employers ever hire anyone.

If you've understood everything so far, it should be pretty easy to deduce why the economy fell into another recession in late 2007. George W. Bush was term-limited, and the odds were high that Barack Obama would soon be president and usher in an era of unprecedented tax increases. Faced with that inevitability, no wonder the economy collapsed! The Obama tax increases were devastating, and businesses in 2007 were helpless in their wake, rippling backwards through time.

So Chait (and Bruce Bartlett, who is obviously a liberal for believing this stuff) have it all wrong: it's liberals like them who can't learn the simple, straightforward lessons of history.

It's Easy To Believe You Can Win

I'm not sure how Matt Bai reconciles a realization that Jon Huntsman "will surely not attract a lot of evangelical followers" and is also "intolerable" to Tea Partiers with a belief that Huntsman has a chance to be nominated, but I absolutely agree with his answer to the question of whether Huntsman is really running for 2016:

This is, in fact, a very popular theory of Mr. Huntsman’s motives, and I address it in the piece. But I have to tell you that, in my experience, it’s just not in the nature of most serious politicians to run for any office — including the presidency — expecting to lose. I don’t doubt that 2016 is in the back of Mr. Huntsman’s mind, but I’m pretty sure this campaign isn’t some clever ploy to set himself up for later. He has convinced himself he can win now.

Look, I don't think Huntsman has a chance. But you know who does? New York Times reporter Matt Bai! That's pretty good! Not just him; Intrade ranks him as the 4th most likely nominee (if you interpret it that way). There are others, too. Who do you think Huntsman's strongest supporters are going to believe: the doubters, or the believers? So they're going to clip every "Huntsman's a serious contender" story they see, and you can bet he's going to see every one of those.

And that's the way it is for every candidate: there's someone out there, with some sort of reasonable credentials, who is optimistic about his or her chances. Nate Silver says that Herman Cain can win. Jonathan Chait thinks that Michele Bachmann can win. You can even find people who said that Newt Gingrich could win. I won't embarrass anyone by linking to a "Take Trump Seriously" piece, but, you know, they were out there. For what it's worth, I said that Jim DeMint and Haley Barbour had plausible chances of winning.

Meanwhile, there are lots of pieces out there too about why each of the candidates has no chance to win -- and again, I'm sure Huntsman's supporters are clipping all the arguments for why Romney can't win, and Palenty is going nowhere, and Bachmann has no chance. He sees those; he may or may not see the ones about how they might win after all.

And that's even before you get into the ego of the whole thing. What politician doesn't look around at the other candidates and just know that he or she at the very least belongs in the group?

Now, it's also possible that Huntsman, or other candidates, also think of future benefits as part of the plus side of running now. But I fully agree with Bai on this one: the odds are very good that he believes he can win.

Empty Places

I mostly agree with Matt Yglesias on the general question of immigration, but the exercise in seeing how many people the US could hold if everywhere (but Alaska and Hawaii, I guess) had the population density of New Jersey reminds me again how NY-provincial Yglesias can be sometimes. I'm very proud of my native Arizona, but really, it's hard to picture very many people wanting to move to large parts of AZ, NM, NV, and UT...and plenty of California isn't exactly human-friendly, either.

Now, granted, you can keep getting the density of Arizona to increase by packing more and more people into Phoenix, and there doesn't seem to be any limit to that process. Except for the big one that applies to all the places I'm listing here: water.

I know, it was just a fun exercise...and who knows, as demand increases perhaps someone will figure out the technology fix that'll allow 30M or 40M to live in the Phoenix metro area without the whole thirst problem (it would take over 100M to match New Jersey's density). And as I said, I agree with the larger point. Couldn't let this one pass, though.

Wedge

Over at Greg's place yesterday, I speculated that there's a good chance that old-fashioned gay-bashing could be on its way to the GOP presidential nomination contest. Nomination races feature candidates who have very similar issue profiles and are otherwise difficult to choose between, which means that candidates have a strong incentive to differentiate themselves from the field by exaggerating small differences. I argued that issues surrounding sexual orientation would work well for one or more candidate: there's still strong support for Christian conservative positions on the issue within the GOP primary electorate, but it might be hard for frontrunners to match rhetoric (and, perhaps, policy positions) out of fear of a general election population that doesn't share those positions.

My question for today is: what else is a logical issue for GOP candidates to use to differentiate themselves?

I don't think foreign policy is especially promising...it's risky (because events could undermine a heterodox stance), and more basically it's not all that likely that Republican voters really care about it. The exception, perhaps, is that someone could try to break out on (support of) torture. It's not as good as sexual orientation; I doubt that there's as much of a large conservative vote that cares a lot about it, while at the same time I'm not sure that frontrunners couldn't just go along, since I'm not sure that the November electorate would mind a pro-torture position.

What else? Taxes is always promising; that's what Pawlenty is trying, and of course Romney is going to match him. Is there room left for a Bachmann or a Santorum to carve out something different? I'm not sure. It would be interesting to see someone campaign explicitly against deficit mania (that is, saying that budget balancers are endangering tax cuts)...it would be interesting to see how wedded conservative voters are to balanced budget empty rhetoric along with deficit increasing policy choices. Newt has been running against the Fed recently; if he drops out relatively soon, will someone else (other than Ron Paul) make a play there?

I'm not sure what alternatives are available on the social issues side that fit the profile.

Any suggestions? I'd like to think that we should be able to predict this stuff.

The End of Friedman Units

A lot of good stuff to read about Barack Obama's Afghanistan speech last night. Andrew Sullivan is optimistic about actually achieving a good outcome. Michael Cohen is, I think, less optimistic about the outcome for Afghanistan, but does agree that this means the war is coming to an end. He and Marc Ambinder both have fascinating views on what both see as Obama's improved presidenting (yeah, I'm starting to use that as a word): how Obama has learned to handle his relationship with the military. Spencer Ackerman is less optimistic all around; he sees "peace talks and forever war." And don't miss Andrew Sprung on the speech itself as well as the policy.

I'm mostly on Cohen's side here, although cautiously so. To me, the question all along -- in Iraq and Afghanistan, and then in Libya -- has been whether Barack Obama is going to be able to resist the logic of the Friedman Unit -- the idea that even though the US wants to leave, it's the next six months that are critical, so the US doesn't want to do anything just yet to jeopardize long-term success by pulling the plug just a little too soon.

To date, Obama has resisted that logic in Iraq, and has continued to carry out the slow-motion surrender that George W. Bush agreed to regardless of any apparent threats. It seems to me that what's really important about the Afghanistan speech last night is that, as Cohen sets it up in his piece, Obama is making his strongest pitch yet against the logic of the Friedman Unit.  And, to me, that's the important thing. Ackerman is concerned, for example, about negotiations for a long-term presence in Afghanistan, and cites the enormous number of bases built there. But in Iraq, Obama turned out to be willing to dismantle bases, and just leave.

Afghanistan doesn't promise to have the same ending; Ackerman is right that Obama probably wants a long-term counterterrorism fight to continue against al-Qaida. But whether is good policy or not is, at least to a large extent, a separate question. As far as the larger war in Afghanistan, there's still plenty of uncertainty: is a negotiated settlement possible? If not, is some sort of muddle-through workable? Are the costs and risks to coalition troops worth whatever remaining gains are possible over the next few years? But the major risk has always, it seems to me, been not defeat but quagmire. That's still going to be the main danger, in my view, going forward. You can be sure that the logic of the Friedman Unit will show up again and again, as long as Obama's scheduled withdrawal is in effect; indeed, we've seen it in Iraq, and will see it again as the year goes along. And that's why to me, the strong stand against that logic was the most important thing in the president's speech, and it's very good news indeed.

June 22, 1971

From Chief of Staff Bob Haldeman's diary:

--
The New York Times papers [i.e. the Pentagon Papers] question goes on. The P[resident] now wants to have Huston set up a small team under E[hrlichman] to start rifling though all the secret documents and especially the Cuban missle crisis, etc., as well as Vietnam. And then get some newspapers to demand that it come out and also get a congressman to do so.
--

Got that? Nixon's response to the leak of documents embarrassing to the Kennedy and Johnson administrations was that they should...find more documents embarrassing to former Democratic presidents, one of whom happened, don't forget, to have a brother who was thought to be a very possible Democratic nominee for president the next year, and find ways to create "outside" pressure to declassify and release those documents.

Huston was Tom Charles Huston. His story is important. The previous year, just after Kent State, the administration had basically put together a plan to go to war against anti-war protesters, using the FBI, CIA, and others for warrentless spying, break-ins, and other illegal and unconstitutional measures. Huston was the guy who put the proposal together and would have lead the effort, which was spiked by J. Edgar Hoover at the FBI. Nixon, as you can see here and back on the 17th, reacted to the Pentagon Papers leak by ordering a revival of the Huston plan, but this time run out of the White House instead of through the FBI and the intelligence agencies. I said last time that the Pentagon Papers lead directly to Watergate; that's the path.

Oh, and you were probably wondering about the Jews, weren't you? Also from the 22nd, here's Nixon and John Mitchell, the Attorney General of the United States of America (and don't miss Mitchell's nugget of good news, at the bottom):

---
President Nixon: [b116:43] You can never put, John [Mitchell], any person who is a Jew in a civil rights kind of case, or freedom of the press kind of case, and get even a 10 percent chance [as] a judge-—it can’t be done. It’s just something that—-you’ve got an exception in the [Henry] Kissinger. Basically, who the hell are these people that stole the papers? It’s too bad. I’m sorry. I was hoping one of them would be a gentile. But, geez, they’re all [hits desk on “all”]—

John N. Mitchell: Oh yeah. [Unclear.]

President Nixon: The [unclear] writers. The three Jews. You know? The three suspects.

Mitchell: Yeah.

President Nixon: The other fellow, all Jews. You—I go clear back to, as I said, the whole damn Communist thing. What really screwed us in that thing as much as any—[William] Rogers will bear it out—-was the fact that the [Elizabeth] Bentley testimony was a whole [unclear]: John Abt, Victor Perlo, Lee Pressman, Nathan [Witt], Silverster. Good God, they ran a whole photo shop. They ran off tons of documents and turned them over to the Communists.
[...]
President Nixon: Anyway, what I’m getting at is this. You have the problem here and it’s—but it isn’t, it isn’t—and I say it isn’t—-it’s part of the background, the faith, and the rest. We’d probably be that way if we are a persecuted minority, concerned about suppression, police state, et cetera, et cetera, and they always come down that way. Almost always. You just can’t find many that don’t. I don’t know. But I’m sure you can find some else [unclear]. [b119:05]

Unclear exchange.

President Nixon: [Unclear] but he's not a judge, is he? [Unclear.]

Mitchell: Well, at least the Supreme Court yesterday ruled that the Jews couldn't get into our golf club.

President Nixon: Is that right?

Catch of the Day

To Seth Masket, who points out the foolishness of press speculation that only one of Palin or Bachmann, or Romney or Huntsman, or Bachmann or Pawlenty, can survive the early rounds of GOP presidential candidate elimination. Seth:

In the long run, there's only room for one candidate, period. By this point next year, the Republicans will have settled on a single nominee. Prior to that, of course, there may well be just two candidates competing in the post-New Hampshire primaries and caucuses. But there's no reason those candidates can't be two women, or two Minnesotans, or two Mormons, or two Protestant white guys (although no one seems to have concerns about that).

Exactly.

While I'm at it, I'll take a shot at Ryan Lizza, who argues that Jon Huntsman's chances are increased because Mitt Romney says he's downplaying Iowa. One more time: as long as the press continues to cover Iowa, it's not going to become a "fringe event." And of course they're going to cover Iowa. What that means is that whoever wins Iowa is going to get a blast of publicity. Hunstman, most likely, won't. The only way he might is if Iowa ends the way it did in 2000, by crowning a nominee (which would presumably be Romney, but I suppose it's possible that Perry or Pawlenty could be odds-on by then). In that case, it's certainly possible that the press, in full panic mode at the possibility of no nomination battle at all in 2012, would surge to Huntsman. But that's not how to seriously contest the nomination; that's how to preserve the illusion of a close race once it's all over but the shouting. More likely, two or three candidates will dominate the news coming out of Iowa, and the guy who sat out won't be one of them.

Back to Seth: Nice catch!

Polling the Deficit

Greg Sargent has a close look at the numbers of a new Bloomberg poll about the economy:

In other words, the public broadly believes in what Paul Krugman refers to as the “confidence fairy,” i.e., the notion that deficit cutting is an important component in restoring confidence, a notion that even the White House has endorsed. It also agrees with the GOP’s argument that excessive regulation and taxes create “uncertainty.”

My comment, once again, is that I simply don't believe that most people have any idea what "deficit" means. Or, rather, what "deficit" means to them is basically some version of "bad economic stuff." I very much doubt that when mass publics answer survey questions about the deficit that what they think of is the difference between government revenues and government expenditures. Well, maybe some do -- but at least in my view, many, perhaps most, don't.

Of course, if true, this makes what Greg calls the "Beltway Deficit Feedback Loop" even sadder, at least for those who don't believe that immediate deficit reduction is a good idea. The idea is that politicians talk about the deficit because they think that constituents care and reporters talk about it because they believe its important, and then (because they've been talking about it) the polling comes back saying that, gosh, voters really do care about it, which then makes politicians even more likely to focus on deficit reduction. If, however, voters are only picking up on "deficit" as a synonym for hard times, then the signal they're sending back to politicians isn't even that the deficit should be cut; it's just that bad times are, well, bad.

John Seery's "Too Young to Run?"

Why shouldn't 18 year olds be eligible to be elected Members of the House, Senators, or even Presidents of the United States? Regular readers will know that this blog has endorsed the idea of dropping the minimum age for serving in elected office. I got that idea, as I've said, from the political theorist John Seery, and I still haven't heard a coherent argument against it. I see now that Seery has a new book out advocating a Constitutional amendment to lower the age of eligibility. It's not often I can recommend a book I haven't yet read, but I can make an exception here -- Seery is terrific, a wonderfully interesting and creative thinker, and from what I've read of his in the past he also writes clearly: no jargon. (By the way, I suppose I should be clear since I've written about them together: I picked up the idea of lowering the age of electoral eligibility from Seery; I have no idea how he feels about lowering the voting age, not to mention the perhaps crackpot idea of vote-from-birth).

I think I'll finish by just quoting the publisher's blurb:

Under the Constitution of the United States, those with political ambitions who aspire to serve in the federal government must be at least twenty-five to qualify for membership in the House of Representatives, thirty to run for the Senate, and thirty-five to become president. What is the justification for these age thresholds, and is it time to consider changing them? In this provocative and lively book, John Seery presents the case for a constitutional amendment to lower the age barrier to eighteen, the same age at which citizens become eligible to vote. He divides his argument into three sections. In a historical chapter, he traces the way in which the age qualifications became incorporated in the Constitution in the first place. In a theoretical chapter, he analyzes the normative arguments for office eligibility as a democratic right and liberty. And in a political chapter, he ruminates about the real-world consequences of passing such an amendment and the prospects for its passage. Finally, in a postscript, he argues that younger citizens in particular ought to be exposed to this fundamental issue in civics.

Don't Panic! (Budget Edition)

I recommend to everyone, especially those who believe that Obama/Reid/Biden/Boehner/McConnell are about to sell them down the river, an excellent column by Stan Collender. He reminds us that rumors about current negotiations are part of the process, and frequently ill-founded:

This is a routine part of the federal budget debate and the fiscal equivalent of one of the five stages of grief.
I first noticed it during the Andrews Air Force Base budget summit in 1990, when I received a series of calls from people inside and outside the Beltway who could not possibly know what was actually happening...For the record, my phone started to ring just as the Andrews summit was beginning — that is, while some of the negotiators were making opening statements and others were still trying to find the bathroom. It’s also important to note that virtually none of these “my-budget-sky-is-falling” concerns turned out to be true.

It is, indeed, quite logical that these rumors get started.

First of all, advocates have an interest in sowing concern on their side, the better to motivate their forces to storm the barricades in order to prevent whatever deal they don't want to get made. The rational time for such fears is relatively early in the process, when things really are unsettled.

Second, the nature of budget summitry is that each side is about to have to give up something it cares about to reach a deal. That's outrageous! After all, we won the election; why are we giving in?

Third, remember the Iron Law of Politics that everyone believes that the other side is better at the mechanics of politics. Or, as Ezra Klein put it a while back: "everyone always thinks everyone else is efficiently and ruthlessly carrying out complicated plans. Partisans are very good at recognizing disarray and incompetence on their side of the aisle, but they tend to think the other side is intimidatingly capable and unburdened by scruples or normal human vulnerabilities." If that's what you believe, then it's easy to concoct and believe rumors that your side is about to give away the store.

Now, all that said, I think that those who are arguing today that the Democrats blundered on this one are basically correct (here, for example, is Matt Yglesias). But the blunder was last year, not this year -- or, really, I'd say the blunder was in 2009. Yes, 2009. The Democrats should have realized that year that they had 60 Senate seats and a large Democratic majority in the House and that those conditions would not last (yes, they couldn't have predicted losing Ted Kennedy's seat, but youneverknow), and been far more aggressive about clearing off the calendar some of the relatively easy items that were going to be trouble if they left them for the future.

What the Democrats did in 2009 and early 2010 was to approve short-term increases. What they should have done was  to tack on either a total elimination of the debt ceiling or, failing that, a truly monstrous extension, something that could safely get them through at least the 2012 election and perhaps farther. It might have taken presidential leadership to get them there, but it was a bullet worth biting. I'm skeptical that anyone really cares about the deficit, anyway, but I find it particularly unlikely that anyone who would otherwise have been open to voting for Obama (or for Democrats in 2010) despite record-setting deficits would have balked at the debt ceiling increase.

As far as the negotiations right now: I'm taking Collender's advice, and I'm not going to grade anyone until we see what really does happen.

Hunstman, and Three Questions about the GOP Process

I've written the "Hunstman can't win" post so many times...I think on the day of his big announcement, I'll just quote a wonderful Alex Massie post. Will Republicans settle for Huntsman?

That's a tricky proposition given that Huntsman was happy to serve in the Obama administration. It's also a problem given his minimal name recognition, the fact he comes from a small state and that, yup, there's already a Mormon ex-governor in the race. Oh, and it's not obvious he believes the same things as the voters who will decide this race do. Apart from that, I like his chances fine.

Oh, and also:

At present it seems that Huntsman's support is largely confined to Wall Street and McLean, Virginia. These are important constituencies but making David Brooks swoon is an insufficient condition for winning the Republican nomination.

Wonderful.

Meanwhile, we're finally getting close to the end of the announcement season, right? And the field seems basically set now, with the two big question marks being Rick Perry (probably in, I'd guess) and Sarah Palin (I have no guess at all).

Three timing questions to ask; I don't have answers to any of them. These are about three of the five people I believe are plausible GOP nominees, along with Mitt Romney and Rick Perry.

1. How long could Jeb Bush wait and still get in and have a plausible chance of winning? My guess: not very much longer (note: I've never thought he would run. Just saying that if he did, he'd be a solid contender).

2. How long does Sarah Palin have to start turning her reputation around, which she would need to do to win the nomination? I think she still technically could do it. Of course, she probably won't; she seems determined not to. But my guess is that even as late as the fall, she could emerge as a pretty serious candidate for the nomination, if she was able to change the way she operates.

3. How long does Tim Pawlenty have to demonstrate a pulse with voters? My guess? November, December, something like that. Especially if Perry drops out, but even with Perry in the race I still think that if Pawlenty has a late rally to finish third in Iowa, he'd still have a chance. In the meantime, however, he has to grind out some gains in endorsements and fundraising, but if he does that I don't think he has to start moving in the polls until very late in the game.

Drawdown

Spencer Ackerman has a smart post this morning arguing that speculation about the number of troops Barack Obama will announce are leaving Afghanistan misses the point:

What matters isn’t how many troops Obama withdraws this year, or next. It’s how the drawdown supports Taliban peace talks, the only real ticket out of the war.

It's as I said a smart item, but I think I'm going to disagree. Ackerman concludes by saying that "if Obama’s Wednesday speech doesn’t explain how the drawdown supports a political strategy for ending the war, it’ll mean one thing: he has no idea how to get out of Afghanistan." I don't think so. I think the way to get out of Afghanistan is, more than anything else, to leave. That is, not to set conditions for leaving, but to just leave.

That's been the case in Iraq. The question has always been, in my mind, whether Obama would suspend the Bush-planned retreat if the various players involved believed that just a bit longer would make a difference. So far, that hasn't been the case in Iraq (although there are still a few more hurdles to go). Similarly, for Afghanistan, the question has been whether Obama would stick to his initial surge/end surge/withdraw outline, regardless of whether various goals were met.

Of course, making leaving the goal means that any other goal -- democracy, for example, or even something more basic such as a stable government -- is considered less important. Whether that's the correct policy or not is a fair question. But as far as I can see, the best measure for whether the US is leaving isn't a military or a political solution: the best measure is whether troops are leaving. And so I do think that the focus on numbers (and any hints of a future timetable) is, in fact, the correct one.

Catch of the Day

Want to know why the press overrates Jon Hunstman's chances? Greg Marx makes the case that Huntsman is using a modified version of John McCain's press strategy, and it's working -- reporters are easy marks for a candidate who openly mocks the political process. Or, as Marx puts it, "wry self-reflection and apparent candor about the act of running for president, qualities that helpfully echo journalists’ own preoccupations." Marx also notes that Team Huntsman includes John McCain's old campaign guy John Weaver. The result? "[T]he ironic detachment from events, the understanding of a reporter’s need to write about the campaign as spectacle, the willingness to join the interviewer in knowing inside-baseball talk." And a lot of reporters who want to hang out with the candidate and say nice things about him.

There are, of course, limits to this strategy. I'm thinking of an old Bob Dole anecdote...I suspect it was in Richard Ben Cramer's What It Takes, but I don't remember for sure or have another citation for it, and so I'll allow the possibility that it might be apocryphal or, perhaps, enhanced in my telling. Running for president takes enormous discipline, an ability to repeat the same stump speech over and over and over, because of course just because the folks in Concord and Manchester may have heard it doesn't mean that people in Atlanta or Los Angeles have. Or even the people in Keene or Nashua. Bob Dole wasn't good at that, and the press (in 1988) bashed him for it. What would happen, though, is that Dole would be giving his stump speech, and he would notice the Washington press corps sitting there at the back of the room, and he'd crack a few jokes that they would (presumably) go over the heads of the audience but would make the speech a lot more fun to listen to, for reporters, than it would be to hear George Bush or Michael Dukakis mechanically repeating the same thing, in the same tone, over and over. So the press enjoyed the jokes -- and then went back to write their stories about how Bob Dole wasn't up to a presidential run because he didn't have the discipline to stick to his prepared speech.

The point is that press relations can probably buy some good will, but translating that into good coverage may turn out to be a little trickier than one might think. Also, that I absolutely love the image of the cynical press corps enjoying Dole's jokes and then tearing him down for making those jokes.

But that's not to take anything away from Greg Marx. Good story, and great catch!

House Republicans Request the Nuclear Option

Steve Benen has a good item today on House GOP efforts to prevent recess appointments, along with continued Senate obstruction of executive branch nominations. See his post for details.

What he doesn't point out is that there's an obvious remedy available to Democrats: Harry Reid and Democratic Senators could simply decide to end supermajority requirements for confirming those appointments.

This is pretty straightforward. Washington runs by rules and norms. If one side violates the norms and finds creative ways to use the rules to their advantage, then the other side should, and in time almost certainly will, find ways to fight back. So far, Harry Reid and the Democrats have been slow to do so...whether it was having 60 Senators for a good part of the 111th Congress, a lack of apparent interest from the White House, or perhaps some hesitation after electoral losses in November, the Democrats have basically been passive observers to GOP manipulation of the rules (remember: until 2009, partisan filibusters of executive branch nominations were rare; since then, they've been constant).

Republicans are basically begging Democrats to resort to the nuclear option of simply ending the filibuster, at least on executive branch nominations, by simple majority vote. Odds are they'll get what they're asking for, sooner or later.

Sooner, by the way, if liberals make more of a fuss about it, which seems to be happening only occasionally.

Campaign Rhetoric and Foreign Policy

Jonathan Chait is right that regardless of what Republican rank-and-file voters say now, they'll almost certainly support the next foreign intervention...undertaken by a Republican president. But I don't think he's on firm ground on this one:

It's true that some Republicans are sounding anti-interventionist notes now. George W. Bush himself ran in 2000 as an anti-interventionist, attacking the Clinton administration for its nation-building and promising a more "humble" foreign policy. The Republican fear of reckless American intervention disappeared as soon as Clinton did, and it will disappear again as soon as a Republican takes the oath of office.
This is, to be sure, a bipartisan phenomenon. Barack Obama and many other Democrats sounded far more anti-war while running for office than Obama has governed. The point is that campaign rhetoric about foreign policy, while interesting in its own right, does not provide an accurate guide to how a party would contact foreign policy from the White House.

Obama may have "sounded far more anti-war" in 2008 than he turned out to be in office, but I think it's a closer call than Chait here implies. He ran to the hawkish side of John McCain on Afghanistan, Pakistan, and on bin Laden (and, by implication, directly attacking other terrorist leaders); he's governed basically that way. On Iraq, he's basically more or less done as he promised. One could certainly argue that the Libya operation is consistent with Obama's campaign calls for multilateral, rather than unilateral, action.

What I think one can say about foreign policy and elections is that the issues are perhaps a lot less predictable than in domestic policy. It's hard to assess how to translate Obama's campaign rhetoric into how he should act in Libya because the context is so radically different than anything he was asked about in 2008.

In general, however, the thing to pay attention to, the thing that is probably most predictable from the campaign, is the set of foreign policy advisers that a candidate is likely to listen to once in office. If in fact it's the case that Republican elites are still as interventionist as ever, then that suggests that, indeed, any winning GOP nominee will wind up following policies similar to those of George W. Bush. Of course, one can also point to differences within Bush's administration, and I do think that the president's personal feelings and temperament probably matter in some cases, but still: personnel are a good indication of policy.

I think that would have worked pretty well for Obama, by the way. It's true that some wishful thinkers on the left seem to have envisioned him as a less flaky Dennis Kucinich, but my memory is that Obama's foreign policy staff during the campaign was well within the Democratic mainstream -- strongly internationalist, if quite a bit less hawkish than Bush's team.

Obama/Libya/War Powers 2

Barack Obama is guilty of one thing with regard to Libya: awful presidenting.

There are two things to consider here, and in both of them Obama is wrong, wrong, wrong.

The first one is ducking Congressional authorization for hostilities in Libya. I've argued that it's not a Constitutional violation, nor a question of tyranny. But it is an awful choice for a president. I'm not the first one to say this, but it's pretty obvious: Obama should have gone to Congress immediately and demanded a vote, in order to give Members of Congress a political stake in the success of the mission.

What if Congress hadn't gone along? Well, that's not good for the president, but it does give him some information very much worth knowing. If Congress was so wary of the operation, for either substantive or partisan reasons, that it wouldn't authorize action, then the president is way better off knowing about it for Day 1. In such cases, perhaps the president should drop the action, or perhaps  it just means he should devote additional resources to selling the plan.

Now, what of the procedural question raised by the NYT article last week by Charlie Savage: that Obama bypassed normal procedures for determining whether he was required to formally report hostilities to Congress. As Savage reports, the normal procedure when the president wants advice on the law would be to have the Office of Legal Counsel in the Justice Department collect views within the government and reach a decision; Obama, instead, treated OLC as just one of several opinions, apparently giving equal weight even to lawyers within the White House.

The president, as several people have commented, has a perfect right to do so; he's the president, and neither OLC opinions or regular procedures are binding. However, I'll agree with those who say that it's a very bad idea for Obama to operate this way.

The reason is basically very similar to the reason he should have gone to Congress in the first place. Presidents need information. Lots of information. And they are in an excellent position to be well-informed. But dangers lurk: people may only tell the president what they think he wants to hear, and the president may only choose to hear what he wants to hear.

Standard procedures involving the OLC for legal advice, then, are sensible for presidents precisely because they (should!) want to hear the truth, even when it isn't convenient for them. As Jack Goldsmith says:

This is not a process designed to produce a sound legal decision. (In the NYT story, former OLC chief Walter Dellinger makes a similar point.) When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office.

In my view, however, more is at stake than getting a "sound legal decision" -- it's about making good presidential decisions of any kind. Presidents sometimes may feel that it is, on balance, worth the risks to oppose legal precedent, but they certainly should know that's what they're up to when they do it. Similarly, presidents may at times believe that the risks of following expert opinion on military affairs, or economic policy, or any other area are greater than the risks of bucking that opinion. Presidents see things (or at least should see things) from many angles, and they may be aware of all sorts of very good reasons to override experts who may, for all their wisdom, have a narrower view. But that makes it all the more important for the president to be fully informed of exactly what qualified experts say. And, in this case, that means following procedures that will produce a thoroughly vetted legal opinion.

The point, here, isn't that Obama is engaging in tyranny or lawlessness; it's that presidents who try to run their presidents this way wind up, more often than not, harming themselves. That sort of presidency just doesn't work well. The office is tough enough to handle well even when the president collects all the information available; without it, he's risking all sorts of dangers.

Obama/Libya/War Powers 1

What should we make of Barack Obama's actions with respect to Libya and War Powers?

I'm going to split my comments into two posts. In this one, I'll talk about the specific question of War Powers. The bottom line on that, to me, is that it's not nearly as big a deal as some believe.

Here's my thinking about it. The constitutionally mandated balance between the president and Congress turned out, in practice, and perhaps increasing over time, to favor the executive. Congress tried to redress this by passing new procedures in the 1970s, but the mechanism involved has pretty much been useless from the very start. Indeed, I agree with Scott Lemieux that Congress mostly likes it that way. 

So is that tyranny? And is Barack Obama's decision that the hostilities in Libya are not "hostilities" in ways that trigger action under the War Powers Resolution a further step along that tyranny?

In my view, no, albeit a qualified no. 

The main hesitation I have is that I'd certainly be happy to see Congress take a more active role in foreign and military policy, including decisions to go to war. To the extent that questions of war and peace are far more concentrated in the presidency than the Constitution envisioned, that's a bad thing, in my view.

However, there's little that can be done about Congress's preference for ducking these things.

The question is when presidential actions go too far, and it seems to me that there are two very important types of action to be concerned about, neither of which appears to apply here. The first would be cases in which the president authorizes new conflicts in secret -- perhaps the greatest historical example is the bombing of Cambodia, but there are other examples. It's one thing for Congress to (in most cases) passively acquiesce with whatever the president wants; it's a much more serious business for Congress to not even know what it's going along with. 

The second type of case would be ones in which the president circumvents what Congress says: that's the Iran-Contra case. Again, it's too bad that Congress normally takes a passive role, but it's important that when it does properly assert its Constitutional authority that the executive follows Congressional restrictions. 

The Libya case doesn't fit into either of those; it certainly isn't secret, and there hasn't been any Congressional action for the administration to contest. Congress is perfectly free to act (and, as far as we know, to take informed and binding actions), regardless of whether Obama follows the War Powers Resolution procedures or not. So while I do not dispute those who say that Obama is wrong on the law here, I'm not at all convinced that that's a distinction that matters very much. What saves the US from presidential tyranny is an active, engaged, independent Congress. If we have that, then the War Powers Resolution is unnecessary; without it, the War Powers Resolution won't really help, regardless of how the president acts. 

I'm far more concerned, to tell the truth, about extensions of the "War on Terror" into various locations outside of Afghanistan. Since those actions are covert operations, it's far too easy for the president to keep Congress in the dark. If that's happening, and I worry it is, it's a far more serious violation of the Constitutional balance even if the president could make a decent case that those actions are authorized by Congressional action way back in 2001, because if Congress is ignorant of important actions then Members cannot judge for themselves, as they are entitled to do, whether they want those actions to continue. 

But with Libya...if Members of Congress want to act, they can do so, regardless of whether the president considers what's happening "hostilities" or not. 

As for what Obama's getting wrong here...I'll save that for the next post.