The War on Terror and the Imperious Presidency

Watch your thoughts; they become words.
Watch your words; they become actions.
Watch your actions; they become habits.
Watch your habits; they become character.
Watch your character; it becomes your destiny.

-Lao-Tze[1]

Dean Erwin Chemerinsky, founding Dean of the law school at the University of California, Irvine, includes a chapter, “The Imperious Presidency,” in his 2010 book, The Conservative Assault on the Constitution (2010).  There he sets forth the impact on America’s constitutional government of the Bush administration’s approach to fighting the war on terror--an approach derived from the strongly-held views, especially of Dick Cheney and Donald Rumsfeld,  in favor of an almost limitless power in the executive branch.  (p. 77)  Rumsfeld and Cheney both went back to the Nixon administration, and were Gerald Ford’s White House chief of staff and deputy chief.  (Id.)  And Cheney, as a member of Congress, was the primary author of an opinion dissenting from the report issued by the congressional Iran-Contra Committee, setting forth long-established limits on the President’s power over appropriations funded by Congress. (pp. 78-80)

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Waging War on the Many by the Few: The Interrelation of Occupy Wall Street, Contraception Coverage, and Welfare Drug Testing

Upon the widening disparity of incomes, corporate dabbling in political processes, and sordid greed displayed by the nation’s largest banks, the Occupy Wall Street movement came to life.  Its purpose, to define itself as the 99% of the population finally pushing back against the 1% of top income earners, established a common theme in contemporary American society—groups or institutions representing the few waging war on the many.  Banks, who bear virtually all responsibility for the housing crisis, begged for taxpayer-funded bailouts to continue their “Vegas-esque” gambling on mortgages and infatuation of private jets.  Indirect and direct, the contemporary aristocracy’s war on masses threatens the foundation of the simple notions such as fairness, compassion, and freedom, which united our nation from its birth.

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Lawrence O'Donnell's Ad Hominem Attack on Mitt Romney, Proxy Baptisms

As a progressive with a Mormon heritage, this year has been a difficult one, as I've been forced to witness sheer religious bigotry by the religious right, some of whom have justified opposition to Mitt Romney because he is Mormon.  Such evangelical Christians believe this means that he belongs to a non-Christian religious cult—as though this claim, whatever its merits, was somehow relevant to assessing whether Romney could serve adequately as President.  Never mind that virtually every set of religious beliefs that each of us does not share are likely to seem strange and foreign.  Given this already-unhappy experience, it was especially disappointing to watch Lawrence O'Donnell attack Romney for his church's practice of baptism for the dead.  He used a "former" Mormon, Helen Radkey--which any one should know means an anti-Mormon--to foster sentiment against the church. In addition, he interviewed Ellie Wiesel as one who had objected to this practice, and especially its being carried on with respect to victims of the holocaust.  Wiesel reported that he had urged Romney to come out against the practice, even as he acknowledged that the church had agreed not to engage in the practice as to the Wiesel family.  Though O’Donnell did acknowledge that the practice is universal, and entails the goal of performing proxy baptisms for literally every person who has lived on this earth, he went on to underscore that such baptisms have been performed for Adolph Hitler and Joseph Stalin.  Wiesel suggested in the interview that this practice put holocaust survivors “in the same category” as Stalin and Hitler.

Watch the interview here.

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Rick Santorum Demonstrates Constitutional Ineptness

Republican presidential candidate Rick Santorum objected strenuously to the Ninth Circuit’s ruling that California’s Proposition 8 violated the Fourteenth Amendment’s Equal Protection Clause. Santorum objected, for one thing, to the court’s ruling that “a constitutional amendment” was unconstitutional. He said: “Imagine that. The Constitution is unconstitutional.” More centrally, he objected to the court’s purported rationale that “there’s no rational reason that you should think that marriage is only between a man and a woman.” Focusing on the court’s judgment that Proposition 8 did not meet the “rational basis” test, Santorum derived from this that the court had concluded that “the only reason you could possibly believe that [marriage is only between a man and a woman] is because you’re a bigot or you’re a hater.” And from this conclusion, the former Senator moved quickly to the projection that President Obama was interested in “appointing justices who think that the family is simply an institution that gets in the way of government directly controlling your life.”

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Obama, Contraceptives, Catholics and the Condrum of Regligious Freedoms

Republican presidential candidates, “conservative” members of Congress, and many Catholic leaders are up in arms over the Obama administration’s initial decision to mandate that various Catholic institutions that supply health insurance to employees—except those who qualify for a narrowly defined “conscience” exception, limited to churches themselves and their employees—include coverage for birth control.  Part of the rationale for the mandate is precisely that covered institutions both employ and often serve many non-Catholics, which could mean denying non-Catholic employees access to the preventive health care embodied in the coverage of contraception. According to the mandate’s critics, this decision by agency officials flagrantly violates the right of the Catholic Church to the free exercise of religion by failing to accommodate the religious conscience of Catholic institutions; these church-related employers view it as sinful to finance employee decisions to use birth control contrary to church teachings.

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'Religious liberties' versus 'homosexual rights'

In a recent article, Steve Timko referred to views vigorously defended by Richard Ziser, of Nevada Concerned Citizens, stating a strong commitment to the Nevada proposition that amended the state’s constitution to define marriage as being between a man and woman. According to Timko, Ziser went further than just defending the Nevada provision, however, and argued that ultimately there is “a battle between homosexual rights and religious liberties.” As an example, Ziser observed that “in one U.S. incident, a high school student was suspended simply for saying in a German class he did not believe homosexuality was right.” For Ziser, the question thus raised is clearly answered by the Constitution: “It seems to me that it’s religious liberties that are in the Constitution, not homosexual rights.” At the risk of sounding like a mere quibbler, it seems that his actual example, if it happened at all, presents a battle between free speech—not “religious liberties”—and a presumed state interest in deterring speech that offers the opinion that homosexual behavior is morally wrong (hence: “he did not believe homosexuality was right”). But surely one would have great difficulty finding any law-trained person who would defend the idea that the state can appropriately punish a high school student for stating his opposition to the morality of homosexual behavior.

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Anti-Mask Law May Be Unconstitutional

Protesters are being arrested for wearing masks in New York at the "Occupy Wall Street" protests, based on a law enacted over 150 years ago.  This raises serious questions about our society's commitment to free speech protections, despite rationales for the law.

The spirit of the law is to prevent people who might be encouraged to break the law because of the anonymity that masks afford people in crowds.  Unfortunately for the protesters at Occupy Wall Street, there is already case law upholding the law.

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Hate Speech and Free Speech

I once got in big trouble – with my wife – for supporting the 7th Circuit decision in Collin v. Smith, affirming a holding that ordinances designed to penalize/discourage the National Socialist Party of America (basically American Nazis) from parading through Skokie, Illinois--where about 5,000 survivors of Nazi concentration camps lived—violated the free speech clause of the First Amendment.  As a student of the holocaust—with enormous sympathy for the suffering imposed there—my wife perceived the proposed Skokie demonstration as veritable assault on holocaust survivors and hardly an attempt to contribute to public policy debate.  I shared her objections to the themes of Naziism, and even her view that such a parade was basically an ugly act; but I could not figure out how to distinguish plenty of pretty ugly free speech scenes that often involve people who are angry, hostile, and view those with competing views—whether political ideology or ostensibly religious ideas—as their enemy.

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Longest War, Enhanced Interrogations and Extraordinary Renditions

Many Americans seem hardly aware that the war in Afghanistan has not only earned the “honor” of being America’s longest war—see Peter L. Bergen, The Longest War:  The Enduring Conflict Between America and Al-Qaeda (2011) —but, when combined with the decidedly more pointless war in Iraq, has enormously contributed to the nation’s struggles with our deficits and national debt.   If the Tea Party movement ever manages to become resolved to pursue genuine libertarianism, renouncing its predilection for views that are more neo-conservative than libertarian (See "Tea Party:  Neo-Conservative or Libertarian?," posted 18 Feb. 2011), America not only might meaningfully address its deficit/debt woes, but might even renew its commitment to fundamental human rights.   Tea Party advocates would benefit immensely from a solid perusal of Bergen’s Longest War book, together with a genuine commitment to honoring the people’s rights.  If they did, it would prompt some re-thinking of priorities coming into the 2012 presidential election.  (But the signs are not good.  I recently received an e-mail purporting to come from the Tea Party that complained bitterly of Obama’s inclination to search for “foreigners he can apologize to for America’s actions,” and as “acting so anti-American.”   And this statement is a virtual paraphrase of expression of extremist neo-conservative views by Michele Bachman—one of the nation’s defenders of “enhanced interrogation” who asserts that the critical response was limited to the “blame America first” crowd.)

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The Administration’s Careful Review of Deportation—Is it Violating Separation of Powers or Are Its Critics Engaged in a Confusion of Powers

On June 17, 2011, the director of the U.S. Immigration and Customs Enforcement (ICE) circulated a memorandum designed to guide the inevitable exercise of prosecutorial discretion in taking legal actions to enforce the nation’s immigration laws.  The memorandum drew on similar efforts setting forth criteria for making deportation action decisions, going back to 1976 and continuing frequently during the last decade.  Among other things, the memorandum recognized that ICE “has limited resources to remove those illegally in the United States.”  (p. 2)  Centrally, it made clear that the use of such discretion “should be based on the totality of the circumstances, with the goal of conforming to ICE enforcement priorities.”  (p. 4)  Clearly, the memo sets out that the highest priority for deportation would be:  (1) those who pose a threat to national security; (2) those who have committed serious, especially violent, crime; (3) known gang members; (4) repeat immigration law offenders.  (p. 5)  It also sets forth “positive factors” that may prompt particular care and consideration, such as service in the military, status as a minor, those present since childhood, and those with serious health problems. 

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