Opinion

The Great Debate

Not ‘court-packing,’ GOP’s aim is ‘court-shrinking’

The party that brought you “death panels” and “socialized medicine” has rolled out another term — carefully selected, like the others, for its power to freak people out. “Court-packing” now joins a Republican rogue’s gallery of poll-tested epithets.

Of course, “court-packing” is not a new term, and its menacing overtone is not a recent discovery. “There is a good deal of prejudice against ‘packing the court,’” observed Homer Cummings, the U.S. attorney general, in 1936, on the eve of President Franklin D. Roosevelt’s failed attempt to do just that — to tip the Supreme Court’s balance by increasing the number of seats and filling them with New Dealers. Cummings, who sold the idea to FDR, hoped Americans would not be “frightened by a phrase.”

But they were. And today’s GOP is betting they still are. Hence the resort to a term that has no valid application to the matter at hand: President Barack Obama’s determination to fill the three vacant seats on the U.S. Court of Appeals for the D.C. Circuit.

Republicans have been sounding the alarm since the spring, with increasing volume. Senator Ted Cruz (R-Tx.), among others, accuses Obama of harboring “a desire to pack the court.” The Wall Street Journal editorial board is also invoking the p-word — insisting they are shocked, shocked that the president would think of exercising his power under Article II, Section 2 of the Constitution to appoint judges.

Both House and Senate Republicans have now introduced bills to stop Obama by simply eliminating the seats he wishes to fill. They are seeking to reduce the size of the D.C. Circuit from 11 judges to eight. This court is a target for conservatives for two reasons: First, because of its primary role in regulatory and national security cases, and second, because another Obama appointment (never mind three) would put the court’s Republican appointees in the minority.

U.S. Mideast policy: Keeping our friends closer

It is time for Washington to change the parameters of the debate on its foreign policy toward the greater Middle East. It is not a choice between human rights and security — rather, the two goals should go hand in hand.

The United States does not need to lose its longtime allies in the Middle East and beyond in order to promote human rights and democracy. In fact, U.S. allies will be more likely to undertake political reform if they feel that Washington is a close partner.

A number of U.S. allies in the Middle East have recently expressed concern regarding Washington’s frequent flips in policies toward the region. The Obama administration’s policy toward the challenges arising from the Middle East has indeed been a series of zigzags: bold moves and initiatives, accompanied by retreats and withdrawals.

What about Social Security’s rollout?

After the nation’s major social program finally became law, critics regularly blamed it for a slowing economy and a swelling federal bureaucracy. Fierce congressional opposition led to the formation of a blue-ribbon panel to overhaul the measure. Obamacare in 2013? Not quite. It was Social Security in 1937.

Meanwhile, after enrollment began for the far-reaching health insurance initiative, administrators wrestled with myriad, unexpected problems. Implementation, according to the man who oversaw the introduction of Medicare in 1965, “took the form of a whole year of consultation with literally hundreds of people in identified areas of concern.”

The tortuous, often controversial implementation of both Medicare and Social Security serves as an early template for the current controversies over the Obamacare rollout. The ultimate success of those social programs ought to calm the overheated atmosphere surrounding the first days of enrollment for the Affordable Care Act.

Opposing Obamacare: GOP’s defining issue

After the French Revolution, the statesman and diplomat Talleyrand said of the Bourbon kings, “They learned nothing and they forgot nothing.” The same might be said of congressional Republicans after their disastrous government shutdown adventure.

Obamacare survives. That itself is something of a miracle. Look at how many near-death experiences it has been through. The loss of Senator Edward Kennedy (D-Mass.) in 2009 deprived Democrats of the majority they needed to end a Senate filibuster. They managed to circumvent the filibuster by applying a controversial rule that allowed the bill to pass with a simple majority.

Republicans won control of the House of Representatives in the 2010 midterm election by promising to repeal Obamacare. The House has now voted 46 times — 46 times! — to repeal Obamacare, only to see the votes ignored by the Democratic Senate.

Counterterrorism: Where are Obama’s policy changes?

It is now roughly five months since President Barack Obama announced a new direction for U.S. counterterrorism strategy.

“America is at a crossroads,” Obama said at the National Defense University in May. “We must define the nature and scope of this struggle, or else it will define us.”

The president proceeded to set out his post-war vision for the nation — the peace dividend earned for the last 12 years of a complicated, costly and at times tragically misguided counterterrorism policy. The president, as usual, gave a good speech. Where he’s weak is on the follow-through, however.

The power in a president’s mandate

The controversy over responsibility for the government shutdown has brought about one surprising consequence: a debate over the meaning of the term “presidential mandate.”

Republicans are asserting President Barack Obama has no warrant to call on Congress to fund the Affordable Care Act — since his victory margin in 2012 was so slender and the voters kept Republicans in control of the House of Representatives. The White House, meanwhile, is countering that the healthcare legislation was not only approved by both houses of Congress, and validated by the Supreme Court, but also was authenticated by his election triumph — after a campaign in which his opponent made hostility to the healthcare reform law his main point of attack.

“Presidential mandate” is an ideal brickbat in a political struggle because it is so carelessly used. Republicans who question Obama’s credentials today were quick to claim after the 2004 presidential election that, in then-Vice President Dick Cheney’s words, “the nation responded by giving [Bush] a mandate.” They ignore the reality that Obama gained re-election by a larger percentage of the popular vote than George W. Bush had received, and that his advantage in the Electoral College was 126 votes in contrast to Bush’s 35.

Tea Party zealots hold the public debate hostage

This year’s contrived budget crisis is headed to its climax, as the date for defaulting on the nation’s debt approaches.

Washington’s budget debates are dizzying and incomprehensible. But at stake is what kind of country we will have. House Republican Tea Party zealots, backed by well-funded right-wing lobbies, continue to manufacture budget crises. They want to alarm Americans into accepting cuts in basic security — in food stamps, and home heating, in Social Security or Medicare benefits — that would otherwise be utterly unacceptable.

Lost in the uproar is any reasoned discussion of the real strategies we need to make this economy work for working people. It is vital that the president and the Democrats in Congress end this macabre dance and make it clear to people just what the stakes actually are. The measure of any compromise deal is whether it will crush the hostage-takers.

The budget is its own ‘debt ceiling’

It could be that President Barack Obama and the Republican House of Representatives will again be able to avert fiscal and financial chaos through a short-term, ad hoc agreement on government funding and the “debt ceiling” limit. This would be good news for the world and its markets.

Going forward, however, we should repeal the 1917 Liberty Bond Act — the source of the “debt ceiling” regime that everyone’s talking about. This was effectively superseded by today’s budget regime, enacted under the Congressional Budget and Impoundment Control Act of 1974. Making this explicit by repealing the 1917 “debt limit” regime is preferable to leaving things merely implicit as they are now.

In what sense does the 1974 regime “implicitly” repeal the 1917 regime? To answer, begin with this apocryphal early 20th century statute familiar to some lawyers: This law supposedly imposed a strange, impossible requirement on two train conductors when their trains approach from opposite directions. The conductor of each train was to stop, await the other train’s passage and then continue the journey. If read literally, of course, this statute would leave trains idling indefinitely on the prairies, shutting down the railway. So the law cannot require what the “plain” language seems to suggest — nor would any court rule this way.

Antisocial genesis of the social cost of carbon

The day after his 2009 inauguration, President Barack Obama committed to “creating an unprecedented level of openness in government.”

He vowed to build on “transparency [that] promotes accountability by providing the public with information about what the government is doing,” “participation [that] allows members of the public to contribute ideas and expertise,” and “collaboration [that] actively engages Americans in the work of their government.”

Despite these promises, and despite longstanding requirements of administrative law, the Obama administration is making significant regulatory decisions behind closed doors — without transparency or public involvement. Yet these new regulations could have enormous impact on Americans for generations to come.

Ending the debt limit crisis: Dear Ben Bernanke

Warren Buffett calls the debt ceiling a “nuclear weapon, too horrible to use.” Obama administration official Jason Furman says the consequence of a default on U.S. government debt is “too terrible to think about.” When asked about a default, Wells Fargo strategist James Kochan simply commented, “Holy cripes.”

With this crisis, America is risking financial Armageddon. The default of Lehman Brothers on its $613 billion of debt ignited a chain reaction in the financial system, nearly destroying the U.S. economy. A default by the U.S. government on $17 trillion of debt — debt that has been considered the safest in the world — could be far worse.

But at heart, this is not a debt problem. It is an accounting problem. The Treasury Department issues U.S. debt, and lots of it. So you would think that America is deeply indebted to its bondholders. Yet increasingly, it is the U.S. monetary authority, the Federal Reserve, and not private investors, who buys this debt.

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