The Daily Snark 3/31

Senator Diane Feinstein (D-CA) accidentally demolishes Obama's argument concerning Libya. We need to send in police with jet packs or loafers so that we don't put "boots on the ground" there.

Just a little more ammunition for conservatives mocking liberals for treating serious international events as if they were normal, domestic incidents. Arrest Qaddafi? Good luck with that.

Musings on the Obama Doctrine

Last night, President Obama addressed the nation in the hope of clearing up both our role in Libya's civil war and the principles guiding the President concerning foreign policy. Coming up with a coherent foreign policy is difficult to an extreme; I am yet to find a truly convincing theory of international relations. Most tend to gloss over certain problems in order to purchase support for a few clearly stated ideas. Obama's doctrine (or so it is being called) lacks the clearly stated ideas but failed to prevent the glossing over of injustices or incorrect facts. In fact, it is difficult to really nail down just what it is the President even meant last night, but since he is in the driver's seat for the next two years, it is important to parse out what information we can.

The text of his speech can be found here.

Should the President be initiation conflicts without Congressional approval?

For starters, Obama has yet to gain approval for this use of force from Congress. While many liberals disliked the wars in Afghanistan and Iraq, nobody can deny that President George W. Bush received Congressional approval prior to the initiation of hostilities. There is a great deal of legal entanglement concerning the use of force, particularly with the War Powers Resolution, but even then a strong case can be made that Obama should have Congressional approval first. That Act gives the President the use of force under three circumstances:

1. A declaration of war. That does not exist in this case.
2. Specific statutory authorization. This is hard to distinguish from a declaration of war; regardless, it also does not exist in this case.
3. A national emergency created by attack upon the United States, its territories or possessions, or its armed forces. An extremely weak case could be made concerning attacks on our troops in the 1980's, but this argument has not been put forth. The United States is not under attack.

Simply put, Obama has no real authorization to launch these attacks without Congressional approval. As a general rule of thumb, unless we are being attacked, Congressional approval should be required before hostilities are launched against another nation. The President did not address this point last night, a very disturbing sign.

Can other nations or the United Nations send our forces into war?

The President largely relied on the United Nations Security Council's Resolution 1973 to provide justification for the use of force. The United Nations is a questionable source of authority; until recently, Libya was on its Human Rights Council. Regardless, the right to use force resides with the federal government of the United States, not with the United Nations Security Council. Only a Constitutional Amendment may change that fact. We may use force at our discretion with or without United Nations approval.

Furthermore, the argument that N.A.T.O. taking over leadership improves America's position is ridiculous. America will provide the men, the muscle, and the money, but generals from other nations will lead it. Having the leadership is not the burden; paying for the muscle work is. The former is shared, the latter is not, and honestly cannot be, as most nations lack the ability to provide the hardware and soldiers for a sustained campaign beyond their own borders.

When may the United States overthrow dictators?

The President lacked clarity on this point. During his speech, he said

It is true that America cannot use our military wherever repression occurs. And given the costs and risks of intervention, we must always measure our interests against the need for action. But that cannot be an argument for never acting on behalf of what’s right.

Obviously, we need some criteria. No such criteria are really put forth, however, that are consistent with Obama's past actions as President. There is the prospect of violence and civilian casualties, but the same can be said of Iran in 2009. There is supposedly a popular uprising in Libya; there was just as much evidence for one in Iran in 2009 and Bahrain, Yemen, and Syria today, yet we have not intervened there. We have an "international mandate" that includes opposition from Russia and China. A broad coalition, but not one nearly as broad as that which invaded Iraq in 2003 (often derided as "going it alone").

With much of the Middle East in turmoil, the question Americans want answer is: why are we intervening in Libya but not Bahrain, Yemen, Syria, or Iran?

And as President, I refused to wait for the images of slaughter and mass graves before taking action.

Unless we are talking about Iran. Or Bahrain. Or Yemen. Or Syria. The goal is noble enough, but our President has not refused to wait for such images before.

Where does this end?

This is the big question. We have a confused strategy of seeking Qaddafi's removal but tying our hands behind our backs concerning the means of doing so. Qaddafi will not leave voluntarily, the rebels cannot remove him by force, and we will not do so. This leads to a permanent stalemate. The longer the stalemate exists with us as Qaddafi's active enemies, the longer he has to strike back at us via unconventional warfare or terrorism. That leads to the very real risk of a ground war we cannot afford right now. It is not certain that the rebels will win, even with N.A.T.O. air cover.

Even if the rebels topple Qaddafi, there is hardly anything we can do to plan for the aftermath. Yes, the rather unknown council semi-leading the rebels could claim control, but there is no certainty that they could keep it or prevent infighting from splintering them and leading Libya into a protracted civil war. There are people loyal to Qaddafi; will we protect those citizens should rebel forces attack them?

Make up your mind.

The President attempted to lay out a clear plan to let the world know when the United States will intervene even if it is not directly threatened. He failed miserably in that attempt. Furthermore, our commitment and goals in this particular case remain vague. If we wish to help the rebels, air strikes alone are insufficient; Qaddafi must go. But we will supposedly be bound by the U.N. resolution limiting our action to protecting civilians. Does creating a protracted civil war protect civilians? Spending ten days waiting while Qaddafi's forces overran the rebels and then suddenly striking Libyan forces out of the clear blue is hardly decisive leadership.

Creating a consistent policy for the use of force is insanely difficult and no ideology, left, right, or otherwise, should pretend it is not so. While the first two sections I wrote are rather limited to the President's theory, the following two certainly could (and were) applied to the neoconservative efforts in Afghanistan and Iraq. The benefit of previous policies was a clear cut goal that provided some benefit despite the other problems inherent in the theory. President Obama's plan lacks these clear benefits but maintains the inconsistencies; if it is to be considered a theory at all, it is one that should be rejected.

The Daily Snark 3/29

Senator Schumer seems to think cutting federal spending by less than 2% is too extreme, so much so that he has taken to practicing using the word extreme.

I may have to practice calling Senator Schumer an idiot. Mostly because he's an idiot. Spending taxpayer dollars should not be defended as a principle in its own right. Rather amazing that there is an entire political party based on that notion.

The Daily Snark 3/28

Begging for excuses at The New Republic. It is odd how the Iraq War has suddenly disappeared from the Left's history books.

Americans are not "rallying around the flag" largely because we have no idea which flag we are supposed to be rallying under. Is this an American lead operation? United Nations? N.A.T.O.? Libya rebels? Why are we there again? Many Republicans did criticize this action, yes, but so did many liberals. Indeed, support or opposition on Libya doesn't fall into the left-right spectrum very well. Many on the right are ok with overthrowing Qaddafi but are unhappy with how we are going about it; many on the left are ok with the procedures but unhappy with getting involved in yet another war.

To pin a lack of sudden support for Obama on Republicans is rather ridiculous. Nobody knows what the President is doing, so it is difficult to support him. Moderates, those most likely to change their minds, are the most confused by this turn of events.

UPDATE 3/29: Just to prove my point, Pew points out that there is little partisan difference on whether striking Libya is wise or not.

The Daily Snark 3/27

It appears many of those Libyan rebels are also members of Al Qaeda.

I wouldn't worry about that too much, especially with all of this talk about arming the rebels. What are the odds that those weapons would be turned on us? Kind of surprising to learn that Qaddafi is worse than Al Qaeda, though. Still waiting on that exit strategy that is absolutely required before we go into a conflict. I'm getting the feeling that the "exit strategy" complaint might have been nothing more than a ruse to attack President Bush with.

The Daily Snark 3/26

"And should the rebels somehow overthrow Qaddafi, they will have the legitimacy which comes of winning an insurgency, as the Iraqis placed on the throne by U.S. power did not."

~James Traub, Foreign Policy

An interesting article, but this statement is nonsense. Since when does insurgency grant legitimacy? And this insurgency would have been stomped into the sands of Libya had it not been for American military might.

Also, there is no king in Libya to replace Qaddafi yet, so there is still plenty of time for the U.S. to play kingmaker.

The Daily Snark 3/24

Kinetic Military Action.

In English, that word is "war."

Can Congress Regulate Inactivity?

But men may construe things after their fashion,
Clean from the purpose of the things themselves.

Cicero, from Shakespeare's Julius Caesar

President Obama's health care bill was passed one year ago today, but as most observers know, its fate is still in question. While the bill has had the necessary Legislative and Executive support, the question still to be answered will come from the Judiciary. That question is, is this legislation in accordance with the Constitution? The various benefits and costs of the bill appropriately belong to the Legislative branch and should be discussed in any effort to repeal the bill, but when discussing the legality of the measure, all such issues become moot. The only question at hand is, does the federal government have the authority to pass such a bill?

It is my belief that the bill is unconstitutional as Congress lacks the power to regulate inactivity. The act requires individuals to purchase "appropriate" health care coverage; failure to do so leads to fines or jail time up to five years.

The courts in this nation are generally bound by precedent, meaning current decisions are not supposed to radically differ from principles established in prior cases. This prevents chaos from overtaking our system of hundreds of courts, providing a final answer to legal questions. It is not iron clad, however, nor should it be. Poorly decided cases should be overturned, as should any case decided against the Constitution in the past.

Defenders of this act say the Commerce Clause and the Necessary and Proper Clause in Article 1, Section 8 provide authority for Congress to mandate each citizen buy health care. These clauses read:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

...

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Ironically, these were among the least and most controversial aspects of the Constitutional Convention. The commerce clause was not a source of much contention, as prior to the adoption of the Constitution states created their own money and imposed tariffs on one another. The confusion of this system created a wide acceptance of Congress to regulate trade to prevent such friction in trade across state lines and to increase the reliability of American currency abroad. Giving Congress the power to pass all laws "necessary and proper" was far more controversial, however, given the obvious propensity of lawmakers to declare anything they do necessary and proper.

Currently, these issues concerning the health care bill are passing through different courts. Decisions have been handed down supporting and opposing the constitutionality of the bill. Probably the two most representative cases are Judge Kessler's opinion in support and Judge Vinson's opinion in opposition. Both cases boil down to the same question: may Congress regulate individuals who are not actively participating in trade?

Judge Kessler, in support of the bill, says:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. [pg 45]

Judge Vinson, in opposition, sees things differently:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. [pg 42]

Both sides note that there is no direct precedence concerning regulating inactivity (Judge Vinson points to this as evidence that Congress has never understood the Commerce Clause to include such a power). There are, however, past decisions concerning the Commerce Clause that can give us a clue as to what "commerce" properly means.

Chief Justice John Marshall was one of the greatest and most prolific judges to serve on the Supreme Court; he is also known for expanding the power of the federal government, pursuing a fairly loose construction on the enumerated powers. However, he makes it perfectly clear in McColloch v. Maryland that the federal government is indeed limited to those enumerated powers.

This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. [pg 405]

The problem, of course, is in determining the extent of those powers. Congress may do more than is specifically said in the Constitution, so long as those new powers are necessary and proper to the use of an enumerated power. Marshall takes a broad view on what Congress may do to further enumerated powers (unlike Thomas Jefferson, who believed any act of Congress had to be absolutely necessary rather than expedient towards achieving an enumerated power).

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. [pg 421]

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. [pg 423]

The question now is what is meant by the commerce clause and whether the individual mandate is in pursuance of an enumerated power. Marshall gives us a definition in the case of Gibbons v. Ogden:

Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. [pg189]

Intercourse is not a mental act within a single skull; it is the exchange of goods and services between different owners. This, however, is the most damning part:

They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. [pg 203]

Commerce was understood to be an activity between people by Chief Justice Marshall, who as I said was a Federalist responsible for expanding the powers of the federal government. It would never have occurred to him, as it did Judge Kessler, that merely thinking about anything that could remotely be economic constitutes trade which Congress may regulate.

Unfortunately, the Supreme Court was strong armed into supporting President Franklin Roosevelt's New Deal policies. The meaning of commerce was greatly expanded, so that the actions of a single person could be regulated by Congress, as was decided by Wickard v. Filburn. I believe the Court erred in this decision, but for the sake of argument I will grant it, just to prove that even this decision did not push the Commerce Clause far enough to encompass this health care act. As the Court noted:

For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. [pg 121]

The Court admits that the Commerce Clause had been viewed as a check on the states from preventing trade, rather than as a tool for expanding Federal intervention into our lives. This new power, by their own admission, was a radical departure from the understanding of the judiciary for over a century. But even here, the Court required an individual to be participating in some activity before Congress could regulate.

Granting Congress the power to regulate inactivity, where no goods or services are even produced, much less exchanged, is to hand carte blanche to the federal government. There is not a moment of our lives that theoretically could not be used to influence interstate trade; that is enough for Congress to be able to regulate us in whatever manner they desire. Granting this conception of the Commerce Clause would eliminate the fundamental principle of limited government from our current system. The American people did not grant this power to Congress at the founding of our Republic, it has never been understood to be otherwise up until this point, and Congress may not assume such power to itself without an amendment to the Constitution. As no such amendment has been passed, the judiciary absolutely must uphold the provisions of the contract between the People and the Government limiting Congress' ability to regulate trade.

The Daily Snark 3/23

Vice President Biden makes the case for impeaching Obama.

Ironically, Obama made the same case in 2007.

This must be the "change" part of Hope and Change.

The Daily Snark 3/22

What is the exit strategy for Libya? If I recall the opposition to the Iraq War correctly, no military effort can be legitimate without a detailed exit strategy.

I need some Obama supporter to detail the exit strategy. Thanks.