Saturday, December 31, 2005

Top Story of 2005

Years seem to come and go too quickly these days. Maybe that is just part of growing up and getting old. It seems like just yesterday that I posted about what I thought were the top stories of 2004, and how I thought they would impact 2005 (second post from the top of the page). For the record, some of my predictions were off, but hey, if I was that good at making predictions, would I still be working in the public sector?

I spent part of the last week thinking about what the top stories of 2005 were, but I kept coming back to the same theme: 2005 seemed like the year that many groups -- Democrats in Congress, liberal lobbyists, and their allies in the mainstream media -- set about to destroy the Bush administration and undo the results of the previous fall. Whether it was the grand jury probe into the alleged release of information by the administration about the covert agent that wasn't, or how the administration was solely responsible for the damage done by a hurricane to a city that is below sea level, or how Iraq was a supposed disaster, there was a sense, intentionally fostered by the administration's opponents, that all that went wrong this year could be laid at the feet of George W. Bush.

Does that mean that 2005 was a bad year for Bush and the GOP? Hardly.

As a conservative and a Republican (in that order), even I was a little glum about the administration's conduct, not so much because I bought into the anti-Bush drivel being spooned out, but because I was frustrated by the administration's abject failure to punch back. Bush's initial refusal to help himself was not only depressing -- it was embarrassing. And that inaction had a price: plummeting poll numbers, congressional Republicans holding the White House at arm's length, and predictions that the Republican Party was slated for an electoral bloodbath in November 2006.

Then something interesting happened: President Bush -- perhaps for the first time in his administration -- began punching back. Putting aside the Miers debacle, he nominated two textualist judges for vacancies on the Supreme Court; one has been confirmed, the other will be. On the eve of the latest round of elections in Iraq, he became unapologetic about fighting enemies abroad and the need to commit troop indefinitely. He let people know in no uncertain terms that the American economy was not just staying afloat, but was booming with growth. When The New York Times released a story about how the administration had wiretapped foreign nationals and other enemies who were known to be inside the United States (a release that was timed to scuttle renewal of the USA PATRIOT Act and promote a New York Times' contributor's new book), he acknowledged it publicly and said he would keep doing it, for the well being of the country, FISA courts be damned.

The full-court-press liberal onslaught that was 2005 essentially forced Bush to abandon that ridiculous "compassionate conservative" desire he had early in his administration to befriend hostile forces in Congress and elsewhere. Perhaps the president has finally learned that these people are not his friends and never will be, no matter how many times he says nice things about them or invites them to White House movie screenings or trips on Air Force One.

And now it's on. Bush understands that he effectively has one year to accomplish key policy initiatives and solidify his legacy, and I have no doubt that he will waste no time. Part of cementing that legacy is working hard to prevent Congress from falling into liberal or Democrat (same thing, really) hands.

Make no mistake: Democrats made great public relations strides in 2005. They were extremely vocal, and there was just enough turmoil to give some of the Democrats' criticisms traction among mainstream America. Had 2005 been an election year, it is safe to say that the Democrat Party would have picked up seats in both the House of Representatives and the Senate, perhaps even returning them to majority status in one or both houses.

My lone prediction for 2006: the Democrats peaked too early. When you combine the fact that Bush is now fightin' mad with the fact that some issues dear to conservative hearts are gaining momentum in the public forum (read: spending cuts and immigration reform), I cannot see how the Republican Party loses congressional seats. Barring the intervention of major and unforeseen events, Democrats will once again fail to understand that what keeps them from winning elections are their socialist policies and the shrill tone with which they promote them.

The Republican Party will pick up one seat in the House and two in the Senate. Democrats will be quiet for about two days after the election, after which they will announce that their inability to pick up any ground was somehow a victory for their party (they did this after each of the last two elections, by the way). Democrats will also say that they will need to do a better job of getting their message out in the next election cycle, ignoring the obvious: that it was their message, and their ability to successfully convey it, that drove them to defeat in the first place.

This will all set the stage for the 2008 presidential election, where the Democrats will (God willing) nominate another liberal northeastern senator with a flexible approach to the truth.

I wish you all a Happy and Healthy New Year. See you on the other side.

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Friday, December 30, 2005

The top two presidents of all-time

There is just simply no way to distinguish between the top two. No matter how much I did not want to finish the presidential list in a tie, choosing between George Washington and Abraham Lincoln is a bit like choosing between ribeye and porterhouse. They're both good, and you really can't lose either way. So I'll just write up the two in chronological order.

George Washington - It is difficult to relate how tenuous an experiment (of sorts) the American polity was. There had been relative calm for the decade plus between independence and the writing of the Constitution, but events like Shays Rebellion signalled that anarchy and turmoil were just around the corner. It is questionable whether or not the Constitutional Convention would have designed the office of President the way they did were it not for the liklihood that General Washington would assume the office.

It could have really gone in so many different directions. George Washington had to carefully weigh each and every decision he ever made because he knew it set the precedent for everyone who followed him. His first great accomplishment was to bring a dignified nobility to the presidency without it becoming too monarchial. He steered an even course when if he went even a little further in either direction, it would have made the Presidency either too democratic or too aristocratic.

He also managed a cabinet full of the most brilliant individuals in American history, but individuals who had very different ideas about politics. That he managed them so well, and did not allow either faction to dominate his administration is more evidence to his greatness.

He did not let the Presidency become too much like a kingship, nor did he let Congress overawe him. He cast a couple of important votoes just to make sure that they were aware that there was a check on their powers, and they could not merely do as they wished. He set the tone early on that the President would be the first in matters of foreign policy, walking out of a meeting with the Senate when they were discussing a treaty. The Senate could approve the treaty, but the President would negotiate it. That's been our policy for over two centuries now.

He allowed John Jay to negotiate with the Brits, and while his francophile opponents in the other party might not have liked it, it was as good as could be expected considering how weak America was at this point.

Those first eight years were a test. America passed because George Washington was in charge.

Abraham Lincoln - Like Washington, his most important characteristic was his ability to ably manage wildy different personalities, and to control a cabinet that could easily have controlled him had he let it.

He was a political craftsman. He was constantly attacked from both ends of his political party, but he caved in to neither side. He did not allow the firebreathers to take control, but he also sternly answered the wimps within his party who wanted America cave into the confederacy.

He never gave up. He did not allow his critics to divert attention from his goals. He also listened. He gave up on silly notions of exporting freed sloaves to Africa after meeting with black leaders like Frederick Douglass. Had he survived, the fate of black people in this country might have been different.

He was a brilliant orator, but there was meaning behind the words he spoke. He understood and appreciated American exceptionalism, and wanted to make the country's founding ideals to mean something to all people. He was compassionate, but not too soft-hearted. He had an amazing sense of humor, but was not crass.

In short, were it not for Abraham Lincoln's stewardship, this country would not have survived. And were it not for George Washington, this nation would barely have outlasted its birth.

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Presidents (4)

Okay, now we're in the home stretch. Buckle up, because these are the best of the best.

10. Franklin Roosevelt - This is such a tough one, and really I need a whole blogpost for this one. When we're talking about presidential "greatness," it's really hard to exclude mere importance as a factor. Like him or hate him, FDR had a tremendous impact on the country and the Presidency - much of it bad, some of it good. It's difficult to fully castigate the man who guided the Nation through World War II, and who also used his office as a source of inspiration to a people mired in economic turmoil. It sounds trite perhaps, but the emotional impact of his presidency should not be scoffed at too lightly.

But there is just too much baggage to ignore. His emotional guidance might have helped, but his actual polcies did not end the Depression, and some economists argue that they prolonged it (and others, obviously, disagree. I'll leave that up to the economic historians). He set in motion the complete centralization of the American government, and he also began the march of the imperial presidency. He didn't create, but he certainly expanded the American nation's role as a nanny state. He threatened to subvert the independence of the Supreme Court through his attempt to pack the Court. He eschewed 150 years of American tradition by arrogantly assuming himself to be indispensable, thus running for a third term. And then he ran for a fourth when it was obvious he would not survive this final term. And though he was at death's door, he failed to properly train his would-be successor, keeping him in the dark on matters of the utmost importance, essentially meaning that Truman would have to learn on the fly (a testament to Truman's own greatness, but more on that later). I could go on and on about King Delano I, America's would-be dictator, but you get the point.

So how do I include him in the top ten? After writing all that I realize that I've been as suckered in by the man's legend as anyone else. But it's just impossible to ognore the man's importance. Perhaps he just deserves a special category.

9. Teddy Roosevelt - I used to have him much higher in my estimation, but he remains the greatest Roosevelt who was ever President. He was a mild demagoggue, but he'd be passed in his rhetorical flourishes by later Presidents. As an example, Roosevet did a lot of barking, but he did not promise the sun, the moon, and the stars to the American people. When a major piece of legislation passed - I forget which, I believe it was the rail monopoly bill - he said that it was indeed a good bill, but it was not the millennium. This is the sort of modesty lacking today. He also helped push America more grandly onto the world stage though his intervention in the Russo-Japanese conflict. But it's hard to ignore his pushiness, and even more so his pettiness. He was an idealist who threatened to push his ideals too far, but who was restrained by his own party. Thankfully.

8. James Monroe - It's hard not to appreciate a President who presides over unending peace and prosperity. But like a later 20th century President, the surface-level harmony was just that, and masked a deeper division within the Nation, and helped blind Americans to impending troubles.

7. Andrew Jackson - A somewhat over-eneregtic, demagogic indidual, Jackson nonetheless had a veneration for the American Constitution. He masterfully squelched Calhoun's disastrous nullification doctrine, and though he properly overstepped his bounds with Chief Justice Marshall, his quip that "Mr. Marshall has made his decision, let him enforce it," is a sentiment I can appreciate. He was not the would-be tyrant the Whigs made him out to be, but he did help spur the democratic revolution in America- and I do not say that as a positive thing in his favor.

6. Harry Truman - As mentioned, he was thrown into an unenvious situation, but he dealt with it admirably. He made perhaps the toughest decision any President has ever had to make, and he decided wisely. His forceful advocacy of the Marshall Plan helped save at least half of Europe from Communism. He stood firm against a hostile Congress - even when said Congress was controlled by his own party. He was stubborn as hell, a trait which served him well at times, and was disastrous on other occasions. He was too late in controlling MacArthur, but he also managed to fend off what could have been a much more tenuous situation. There were various hits and misses throughout his two terms of office, but our Nation was well-served bu Truman.

5. Thomas Jefferson - Shocking I know, but we're talking about his presidency, not political philosophy. There is no mistaking that his first term was one of the greatest presidential terms in American history. He paid down the debt while slashing taxes, and he made the single greatest acquisition in American history, while sponsoring the expedition of Lewis and Clark. But his second term was just as much a disaster as his first was a success. He endorsed a ridiculous embargo that discredited the Nation and would have rammifications later on that would cause America to enter a needless war. Mr. civil libertarian also had no problem encouraging the silencing of dissent in the press when the focus now was on his presidency and not the Federalists. At the very least his adminsitration showed that it really was sometimes the office, not the man, that mattered.

4. Dwight Eisenhower - Ike's greatest skill was his managerial ability. He had no problems dealing with a cabinet that was often divided against itself, and he often used such debate to help formulate a more thoroughly informed policy. Conservatives will probably decry his inability to roll back the New Deal, but it is rather doubtful that Ike would really have had the ability to smash the New Deal into the ground during that era, not when over 50% of the people were registered Democrats. He was a careful man, cautious almost to a fault. But his caution helped keep America stable and secure.

3. Ronald Reagan - A transformative conservative. He helped restore American confidence, energize da stagnant economy, and was the main impetus behind the fall of European communism. He brought an optimistic streak to an ideology that needed a dose of it. He is the main reason our economy continues to thrive today. He transformed a world and a nation. So, yeah, he gets to be near the top of the list.

There are two more, and I want to devote a separate post to them, because they stand apart from everyone else.

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Presidents (3)

These are the decent, but not quite great Presidents.

20. Grover Cleveland - I might have a slight bias against him because he is the namesake of a public high school in my neighborhood that I avoided having to go to because I actually studied during grammar school. Arguably one of the first "modern" presidents, he did make extensive use of the veto pen - issuing three times as many vetoes as all of the Presidents that came before him combined.

19. Zachary Taylor - An interesting case of what might have been. A southern Whig, he was actually more more tough on the South than the Yankee Presidents that immediately followed him. His fairmindedness might have averted the Civil War - though probably not likely - had he not died midway through his first term.

18. William Howard Taft - Definitely a better ex-President and the last great Chief Justice before Rehnquist, his presidency was hurt by the pettiness of his predecessor and mentor, Theodore Roosevelt. It wasn't so much that Taft was inadequate to the job, he just didn't have that charming demogogic zeal so cherished both by TR and the man who would follow in his footsteps, Woodrow Wilson. He lost control of his party, but certainly not the country. Had TR just let him be, he might have been a much more effective president.

17. Gerald Ford - Actually a fairly underrated President, he restored some dignity to the office. He refused to be cowed by an incredibly hostile Congress, stood his ground, and amazingly almost pulled off one of the great political comebacks of all-time. His short term was mainly blighted by his questionable decision to pardon Nixon, a move that probably cost him his second term.

16. John F. Kennedy - Terribly overrated due to his martyr-like status, but then often underrated because of said overrated-ness. He made a disastrous decision to invade the Bay of Pigs, but largely learned his lesson. He helped create the Cuban Missle Crisis fiasco by ignoring critical intelligence, but masterfully steered his way through it. Helped flame the fans of war in Vietnam, though who knows what would have happened there had he stayed alive. The last great Democrat, he cut taxes and appreciated the limits of government.

15. William McKinnley - Helped bring the country into the modern age and also started the process whereby America became a major player on the world stage. Another could have been story, like most of the people in this section of the list.

14. James Madison - It is a pity that America's greatest political philosopher was such a mediocre president. It is almost as though he backed us into a needless war without really meaning to. Most of the blame probably lies with his predecessor and good friend TJ. Yet another common theme of the presidents in this section.

13. Calvin Coolidge - Yeah, I know you're probably wondering, what the hell? Silent Cal was one of the last men to occupy the office - perhaps the very last one - who understood the limits of said office. Perhaps he appreciated those limits too much.

12. John Adams - Another case of a great political theorist being not an altogether great President, though he did manage to keep us out of a shooting war. with France. He let his party get out of control, and his timidity was what cost him the election and his own party its own existence. He made the greatest appointment in the history of the Supreme Court, so I guess sheer luck and good personal judgement puts Adams close to the top ten.

11. James Polk - He came, he did some things, and he left after one term. Really. He's basically a near-great President because he accomplished what he wanted to accomplish - including winning a war that helped the country acquire a ton of land - and he didn't stay on for a second lame duck term. Of course those same acquisitions would help ignite a Civil War, but his heart was in the right place.

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Thursday, December 29, 2005

Presidents (2)

All right, this segment will be short and sweet since most won't even need explanations, so I will also put this one out now. Now the ordering goes down from 29 to 1.

29. Woodrow Wilson - Scary, scary man. May have believed he was the second coming - really, I only barely exaggerate. Could have easily passed the League of Nations had he even the slightest ability to negotiate and bargain at all with Congress. He was a populist demoagogue who started us firmly down the road to an imperial presidency. Sadly, the only political scientist to ever become President, and not the best example of one at that.

The rest of the list includes thoroughly unremarkable Presidents. None of them were particularly bad so much as just worthless. Or, as the Simpsons sang:

We... are... the...
Adequate, forgettable,
Occasionally regrettable
Caretaker presidents of the U-S-A!

And in order they go:
28. Rutheford B. Hayes
27. Chester Arthur
26. James Garfield
25. John Tyler
24. John Quincy Adams
23. Benjamin Harrison
22. Martin Van Buren
21. George H.W. Bush

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Alexandra at All Things Beautiful recently challenged the blogosphere to compose a list of the ten worst Americans in our Nation's history. Many have responded, including Captain Ed Morrissey. All in all a pretty good list from the Captain, though I might quibble with putting J. Edgar Hoover at the top of the list.

It did get me to thinking, and quite honestly I had trouble compiling a list. Part of the problem is that I had difficulty putting people of good will on the lost - people who were bad for America, but not malicious. More troubling for me was that as a Jefferson-basher who is currently writing a dissertation on why the Jeffersonian ideology is bad for America, I still couldn't bring myself to include him on the list.

So, instead, I have decided to list the ten worst presidents in American history. Actually, I'll probably list the other 29 (not inlcuding Bush - still in office, Clinton - not enough removed from his presidency, and William Harrison - only served for a month) in succeeding days.

So, without further ado, the worst ten presidents, going from least worst to worst. Click on read more

10. Millard Fillmore - The nation almost avoided the Civil War, thanks in part to the relatively even-handed direction of Zachary Taylor. Unfortunately, upon his death his Vice-President took the helm and steered the Nation full tilt back to war. A completely incompetent hack, Fillmore managed to bumble his country to the brink of war and his political party (Whig) to its ultimate collapse. He kow-towed to the slave interest, angering the north while doing little to appease the south.

9. Herbert Hoover - In fairness, very little of the blame for the Great Depression can be laid at his feet, but he also did little to help guide the Nation out of the Depression. More a victim of circumstances, but sometimes grim circumstances are the siutuation which cause men to become heroes. Alas, such was not the case with Hoover.

8. Lyndon Johnson - Were it not for his ability to steer through passage of the civil rights acts, LBJ would arguably be the head of this list. And even this action was guided more by partisan gamesmanship than through genuine sympathy for southern blacks. His Great Society was the crowning achievement of the leftist establishment, and it says much that said establishment is gone. And then there was that war that wasn't a war. And to make matters worse, LBJ is perhaps the most vile and despicable human being ever to have graced the Oval Office. Not the worst president, but perhaps the worst American.

7. Warren Harding - Were it not for the complete and utter corruption of his administration, Harding merely would have been an unknown mediocrity. Luckily for him, I suppose, he had that corruption to fall back upon in order to secure future fame. But no cigars to seal said fame.

6. Ulysses S. Grant - Another victim of corruption, and in this case it is probable that he had a small role to play in it. But he was responsible for those under his command. More importantly, when the Nation desperately cried out for a strong political leader to guide them through Reconstruction, Grant failed to become such a figure, and our country was all the worse for it.

5. Richard Nixon - Sometimes it is said that he was a good President save for that whole Watergate thing. Legitimizing the red Chinese government, wage and price controls, "realpolitik," screwing up all but one his Supreme Court appointments, and prolonging the Vietnam War all say otherwise.

4. Jimmy Carter - It is a testament to the strength of this great Nation that it could survive a full-term headed by one of the most incompetent political figures in world history. It is staggering when one considers just how complete were this man's blunderings. It says much that many if not most within his own party were thankful when someone from the other party took his place. A completely naive foreign policy, a weak-kneed approach to the Soviet Union, the near destruction of the economy (misery index, anyone?), a botched hostage rescue, complete egoism, a horrendous cabinet to boot, etc. And to think his post-presidency is even worse.

3. James Buchanan - Sort of like Hoover in that much of the momentum was set in place by the time he took office, and there was little he could have done to avert the Civil War. But, he could have tried something in the four-month interim between Lincoln's election and his inauguration as state after state seceded from the Union. You know, like, anything. Fiddling while the Nation came apart, and for that alone his presidency is nearly the worst.

2. Andrew Johnson - The reason that John Wilkes Booth is probably the worst American in history is because his assassination of Lincoln caused this man to become President. It is true that the Radical Republicans were much too harsh in dealing with the defeated Confederacy, but Johnson had absolutely none of Lincoln's political skills and he was unable to moderate Union policy. In fact, his quasi-maniacal ego made matters worse, and he nearly destroyed the very institution of the Presidency because he had no capability to deal effectively with Congress. What he did accomplish was to effectively delay blacks from achieving full civil rights for another century.

1. Franklin Pierce - In some ways he was such a non-entity that it's really difficult to categorize him as the worst President in our Nation's history. But there was one last hope to avoid Civil War, and Pierce blew it - big time. He had no control over the country or his own political party whatsoever. In fact, he was the first President to experience regular veto overrides. And as Kansas bled and our country was essentially split into two, he did absolutely nothing.

So there you have it. It's interesting to note that these presidents come in three clusters. You have five from the Civil War era, all who immediately proceeded or preceeded Lincoln. Then there are the three Vietnam/Watergate-era Presidents, and then he interwar Presidents (and Wilson is number 11).

We'll look at the next batch later.

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I know, I know

I am back in town after a festive Christmas. There are quite a few issues to tackle, and hopefully I can get to at least some of them today.

But first, a public mea culpa. Yeah, got that Giant-Skins game a little bit wrong. Silly old me had no idea that the Giants wouldn't be able to play defense. I guess I'm just silly to expect Will Allem to, you know, cover someone. Here are some words of advice Will. First of all it's okay to take a quick glance back at the ball. Just staring at the receiver as he catches the ball is NOT really playing defense. Also, merely throwing your body at a receiver - again, not really the best form of defense. You might want to throw your arms around the person and bring them down to the ground. It's a little thing - it's a technical term that they use in football . . . what's it called? Oh, yeah, TACKLING. Oh, and Jeremy, shut the fuck up and actually continue playing until they blow the whistle.

On the bright side, Atlanta managed to knock themselves out of the playoffs with one of the dumbest coaching decisions in the history of the sport. Let's see, there's a minute left in OT, your team must win the game - a tie pretty much eliminates you from playoff contention - and it's fourth down. Do you go for it? No, silly, of course you punt it away and in doing so piss away any chance you've got at making the playoffs, and, if you're coach Mora, any chance you've got of actually coming back to the team next year. Huzzah, huzzah.

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Wednesday, December 28, 2005

Mexico's PR Push

Mexican President Vicente Fox apparently thinks he can change American minds about illegal immigration by hiring an American public relations consultant.

Fox's government rehired Rob Allyn, the lead consultant and managing partner of a public relations firm in his own name, to be the point man in dealing with what Fox and other Mexican officials perceive as America's rising tide of anti-immigration sentiment. Allyn, who was an active but clandestine consultant for Fox during his 2000 presidential election campaign, and also consulted for George W. Bush during his first run for Texas governor against then-Governor Ann Richards, has already been outspoken on the issue:
"Our focus is on public opinion, which influences policy outcomes in Congress,"
said Allyn, 46, who grew up in Huntington Beach and moved to Texas when he was
in high school. "There is a huge misperception among the U.S. public about
Mexico." . . . "We're not going to be their Washington lobbyists," he said, "but
I want to be honest about the point of influencing public opinion to help change
attitudes about Mexico, about immigration, about border security."

What Allyn appears to not appreciate, perhaps because of the dinero dancing before his eyes, is that Americans are not opposed to immigration in general, but are increasingly angry about the flagrancy and volume of illegal immigration in this country, as well as the Mexico government's hand in it. Americans, particularly those in border states, are acutely aware that the Mexican government is not only actively advocating for illegal immigration into the United States from its side of the border, but has portrayed illegal immigration into the United States as a component of its own comprehensive domestic economic policy. This is, and should be, unacceptable to all Americans.

I take comfort in the fact that Americans are finally getting it. After being alone in the wilderness for so many years, anti-illegal immigration voices are finally being heard as the influx of illegals swells beyond 11 million. As a general rule, when Mexican officials are angry at American politicians, that means we are doing something right.

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Tuesday, December 27, 2005

Pondering National Security II – A Rejoinder to Gipperclone

Below my good friend Gipperclone effectively articulates the case for a broad grant of executive power to the President especially when it involves matters of “national security.” While neither of us can settle the debate definitively, I thought that I would take my best shot at communicating the other side of the debate, namely, that the President’s powers are no more extensive simply because we are dealing with matters relating to “national security,” and more specifically, that Congress’s power in arena is broader than many who take GC’s position would like to admit. Like GC did, I’m going to this time try to avoid much of the legal minutiae that has plagued many analyses of this issue and speak more broadly about executive and congressional power under the Constitution.

Click the Read More Button to see rest of the post.

GC’s post poses a hypothetical situation in which Congress, in its infinite wisdom, enacts a statute or law that prohibits the use of bombs. GC properly calls this hypothetical absurd and I agree, however, not for the reasons asserted by what follows in GC’s post. According to GC, not only is the policy absurd, but it also infringes on the President’s Constitutional duty to protect the nation. I fully agree with the first part of that statement, but not the second. Rather, I would argue the hypothetical is absurd because the policy is so dumb that even Congress couldn’t muster the political will to do something along those lines. It is, however, perfectly constitutional for Congress to take such an action. As a result, the President would be obligated to follow the law as enacted by Congress, his “inherent” Presidential authority, however one wishes to define it, cannot under our Constitution ever be used to thwart the will of a co-equal branch of government. Should Congress act unconstitutionally we likely would have a different result, but, as all of here at TPS have said at one time or another, stupid is not necessarily unconstitutional. Thus, if Congress acts in a manner consistent with the Constitution, we are bound by their decisions, every one of us, including the President.

Simply put, it is well-within Congress’s power to outlaw the use of bombs. Several clauses of the Constitution give this power directly to Congress and to no other branch of government. For example, the Constitution states that Congress shall have the power to “raise and support armies, but no appropriation of money to that use shall be for a longer term than two years …” In addition, Congress has the sole authority to “provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress…” Thus, it is long accepted and well-established that Congress controls the “power of the purse” and, as such, they could easily and constitutionally prohibit the use of funds for making, using, distributing or otherwise employing bombs of any type. Stupid yes, but unconstitutional I don’t see how. Therefore, the President has no constitutional remedy other than to veto the legislation. Assuming, as GC’s hypothetical does, that Congress has the votes to override the veto, the President is charged with the duty to “take care that the laws be faithfully executed,” not to decide which laws he wants to follow and which ones he does not. Like the Line Item Veto, or the Legislative Veto (See INS v. Chadha), mechanisms that subvert or alter the formal lawmaking and executing process established by the Constitution are in and of themselves unconstitutional and cannot stand. The President’s available, legal, and constitutional option is to convince Congress to change their stupid law, not to simply ignore it and decide to continue doing that which Congress has expressly prohibited.

Admittedly, my analysis has followed a sort of a formalistic bent, similar to the type followed by many of the recent Supreme Court Justices in cases such as Raines v. Byrd and Clinton v. New York. There is another way to argue this and I think GC has done it, albeit implicitly in his previous post, but his is more of a “functional” analysis that can easily lend itself to a charge of being a “living constitutionalist,” a point-of-view that I know that he deeply objects to. That said, I don’t think he’s 100% wrong; rather, I think it’s an open political/legal question that needs to be debated and settled, but I’m not sure this is either the time or the case to do it in. There is too much about this that we don’t know; there are too many facts that will likely never be disclosed, and there are too many possibilities to render a comprehensive answer. The problem is that GC’s argument, like many of its functionalist predecessors, is politically appealing. Functionalist arguments are designed to fit the current political/military situation quite well, are by definition malleable and, therefore, are able to fit almost any situation where they are required. Currently, functional arugements are being designed to provide the President unchecked ability to fight terrorists. Previously, they have been used to curtail federal spending (line-item veto), while at other times they have been used to try to protect the institution of the Presidency (Nixon/Watergate), or to protect the nation from internal destruction (Lincolin's suspension of the writ of habeus corpus). I don’t argue one bit with the logic of GC’s argument, as there is a great deal to be said about flexibility and ability to respond to the threat posed by terrorists. That said, however, there is a right way and a wrong way to get the flexibility that this threat requires and that is to use the channels expressly made available in the Constitution. Yes, they are potentially slow and often the results are painful, but they have withstood for over 200 years, through numerous conflicts both foreign (WWI, WWII, etc.) and domestic (Civil War).

It is without a doubt true that Congress may not be the most efficient or even the most well equipped institution to handle many of the problem faced by our nation in the 21st century, but they are the institution empowered by the Constitution to try, and until we as a country take the affirmative steps to change that we are stuck in the system created by the founders and enshrined in the text of the Constitution. Are there inherent authorities vested in the President, yes, on this GC and I don’t disagree. However, what those are, there scope, and the solution when they conflict with other equally vested powers remains something that we have to and should seriously debate. Too many vested powers can be abused, and Lord Acton’s warning that “absolute power corrupts absolutely” comes to mind. Too few, and there is a legitimate concern that the President will be incapable of protecting us from future threats. There is a balance to be had here, but it will not come by the branches exercising unilateral authority to act in contravention of the Constitution. Again I don’t know if the President violated either the law (FISA) or the Constitution, but I do know that to continue unchecked down this path is potentially dangerous to the United States. We as a nation have to decide these questions, and we should do so in as open a forum as possible using as deliberative a process as necessary. We shouldn’t shy from our duties out of fear, for if we do the terrorists will win without ever having to physically attack us again.

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Friday, December 23, 2005

Merry Christmas

I am off to New York in the morning for Christmas with the family, so no internet for a few days. I hope all of you have a blessed Christmas, Hannukah, or just some sweet time off from work.

God bless.

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Pondering National Security

There has been a lot written, both in the media generally and here at TPS specifically, about the supposed revelations (which were known about more than one full year ago by The New York Times, but were released only recently to coincide with both the reauthorization of the USA PATRIOT Act and a Times contributor's book release) of the federal government using its authority to grant internal wiretaps without seeking approval in the forms of warrants from specially designated Foreign Intelligence Surveillance courts.

I will let others dive into the minutiae of the statutes at issue, and raise only the following zen-like question: Is it acceptable for a president to do certain things in the name of national security, even if those things may not be in keeping with the letter of the law? I am probably going to draw the ire of those on both the left and the right by saying that the answer to that question is, unquestionably, yes.

Let me use an absurd example to illustrate my point (and I will grant you that it is an absurd example, but bear with me for the broader point). Suppose Congress rolls back into town in January and decides that it wants to make targeting ordinance -- in other words, bombs -- illegal. It passes the requisite legislation in both houses and overrides the expected presidential veto. Presto! Federal law now forbids the United States Armed Forces from using bombs in any and all military engagements around the world.

What is a commander in chief to do? Would a president be bound by such a ridiculous law? I would argue that a president would not be bound by such a law, on the following grounds: Were Congress to pass a law that, intentionally or otherwise, handicapped the executive branch's constitutionally granted obligation to protect the safety and security of the American people, a president could -- indeed, must -- still do what is deemed necessary to protect the American people, even if that means ignoring or overriding the problematic law. In much the same way that certain constitutional provisions must yield to others, so too must contravening laws yield to the broader, more comprehensive, constitutional authority of a president to provide for the common defense.

Now, the Foreign Intelligence Surveillance Act (FISA) is nowhere near as absurd as my above example, and the structure of the law is such that I do not believe it is as clear-cut as critics of President Bush would have you believe. Nonetheless, let us assume for the moment that what the president authorized in the wake of 9/11 is in fact not authorized under the text of FISA.

I would argue that Bush still had the authority to do what he did anyway. The president and his advisers had access to information, not long after the attacks on New York and Washington, D.C., that what happened that day was, to some extent, the result of an inside job, and that terrorists were here and planning more attacks. A president, armed with that information, would be downright negligent to not authorize internal surveillance of individuals -- whether or not they are citizens -- whether or not specific authority was granted to him to do so via statute. Congress can make laws binding the executive in some ways, and presidents are not free to ignore legitimate laws with impunity, but when Congress directs the president to do (or not do) something in a way that does not comport with national security, a president has an obligation to eschew federal law and abide by the Constitution.

Merry Christmas and Happy Hanukkah, everybody. I look forward to your scorching criticisms next week.

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Hyperbole Alert

Found this courtesy of Fire Joe Morgan:
The Yankees announced Thursday that they had agreed to a $1.5 million, one-year contract with popular outfielder Bernie Williams, who has been in pinstripes since 1991 and compiled statistics that put his name alongside the team's greatest players.

"He ranks right there with the Gehrigs and the Berras and the Ruths and the Mantles," Yankees general manager Brian Cashman said.
Umm, yeah. I'm gonna say no to that. Bernie Williams is a nice ballplayer, but it's just a teensy, weensy bit of a stretch to put him in the same company as the aforementioned players.

By the way, it kind of makes you wonder - what do you think would take less time: Babe Ruth running from home to first, or a Bernie Williams throw from center to second base?

Speaking of Yankee center fielders, I would be remiss if I didn't point out their faaaaaaaaabulous new addition:

Doesn't he look adorable? I'm sure Reversed Curse is somewhere vomiting. Not necessarily over this picture, but just because.

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Stem Cell Fiasco

This week's story regarding the revelation that renowned South Korean geneticist Woo Suk Hwang falsified data in recent stem cell research has sent shockwaves through the global scientific community. The revelation is, of course, problematic for Hwang's credibility (in that he now has none) and research on the subject (which is now completely suspect and will likely be reviewed), but what will likely go unasked are the following questions pertaining to stem cell research generally:

- Is stem cell research the guarantee that it is claimed to be by its supporters at home and abroad?

- Is this latest revelation about doctored (no pun intended) research problematic for a scientific movement that purports to have had so many successes?

- Does the fact that one of the field's most successful researchers had actually not produced the results he claimed to have produced raise doubts about the scientific community's nearness to cures for genetic diseases?

These questions need to be asked, particularly in light of the close relationship between stem cell research and the advocacy for what is essentially embryo farming.

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Thursday, December 22, 2005


Reasonable minds can and will certainly disagree over the legalities, means, ends permutations, etc., etc., in regards to the NSA eavesdropping, but this quote from our dear AG is just f*cking ridiculous...

Attorney General Alberto Gonzales has said the NSA program was not meant to circumvent the FISA process but to augment it.

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Strike over?

It appears that they will go back to the negotiating table, and the workers will return.

Story here.

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Wednesday, December 21, 2005

Jolly Christmas decorations

Don't have a lot of money to spend on Christmas decorations? Here are some creative decorations one can make with a common hygiene product.

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Letterman's woes

I believe this is the judge that looks awfully foolish for having an issued a TRO against David Letterman.

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DC stadium deal in doubt

Story here.

If it were anybody but Marion Barry at the head of the line opposing the deal, I'd be more supportive of the Council. Actually, I think they're doing the right thing. From a bargaining perspective, baseball needs DC more than DC needs baseball. I do think that economically speaking the Stadium will be a great boon for the city, so I think the Council ought to vote to approve the lease. On the other hand, the costs are getting excessive, and I am leery of spending too much government money on a sports stadium - big sports fan that I am. Thus the Council's caution is warrented.

Ultimately, this is - as usual - all Major League Baseball's fault. They have screwed this whole thing up, and have been doing so since they bought out the Expos. The idiotic courting that took place before they finally moved the Expos was simply stupid. Did anybody really think that Portland or Las Vegas were viable options? But by continually hemming and hawing baseball, when it finally awarded the franchise to DC, did not allow enough time to adequately a stadium package in place. The Council had to rush through something at the last second last year, and that impacted these very events.

More importantly, baseball's reluctance to finally award the franchise to any single owner has been disastrous. Aside from the fact that it is unfair to the team because it cannot fully enter the market, the lack of an owner is a sign of bad faith on the part of Major League Baseball. Why should the city spend nearly $700 million on a ballpark when MLB has had no interest in settling the team's ownership situation? More importantly, without a deep-pocketed owner at the helm, the city is left without any assurance as to who will pick up the tab if there are signficant cost overruns. If there had been an owner in place during this process, it is unlikely that we would be witnessing this deacle. Perhaps the owner could have promised to buck up the extra $200 million or so to get this deal finalized.

Major League Baseball has not seen this sweet a deal in ages. They are poised to make millions off of the sale of this franchise, and they are set to have a brand new ballpark in the Nation's capital. Only Major League Baseball could so royally fuck up such a good thing.

Update: More chutzpa from MLB. Now they're warning prospective owners not to tell the city that they'd put up some money for the stadium. Yes, heaven forfend the city not be raped for every cent possible in order to construct the ballpark. It's amazing, but MLB has accomplished the impossible task of making me side with the DC City Council.

One side note: Part of the exorbitant cost is a $60 million stadium design consultant fee. Man, I'm in the wrong line of work.

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Padilla and the Fourth Circuit

Take a gander at this Fourth Circuit Opinion by J. Michael Luttig in the Padilla case. The Judges are incensed at the federal government for attempting to avoid Supreme Court review of the case by indicting Mr. Padilla in Federal District Court in Miami. There is an old and familiar cliché, namely, “don’t bite the hand that feeds you.” Given the court's opinion, it could certainly be argued that the Administration has really pissed off arguably the nation's friendliest Circuit court, at least with respect to executive powers. One wonders what exactly the Bush Administration/Justice Department are thinking.

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Channeling Posner?

Perhaps not, but he'll be taking questions live here at 2pm on his Op-Ed in today's Post entitled "Our Domestic Intelligence Crisis." Objectively speaking, Judge Posner tries to explain why the government needs to have some domestic spying powers such as those currently at issue in a post 9/11 world, and how, in his classic way, how the risk of abuses is too attenuated given the issue at hand.

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Politically Correct Christmas Greeting

I really wanted to send out some sort of holiday greeting but it is so difficult in today's world to know exactly what to say without offending someone. So I met with my attorney yesterday, and on his advice I want to say to all of you:

Please accept with no obligation, implied or implicit my best wishes for an environmentally conscious, socially Responsible, low stress, non addictive gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all.

I also wish you a fiscally successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2006, but not without due respect for the calendars of choice of other cultures whose contributions to society have helped make America great (not to imply that America is necessarily greater than any other country or is the only "AMERICA" in the western hemisphere), and without regard to the race, creed, color, age, physical ability, religious faith, or sexual preference of the wishee.

By accepting this greeting, you are accepting these terms:

This greeting is subject to clarification or withdrawal. It is freely transferable with no alteration to the original greeting. It implies no promise by the wisher to actually implement any of the wishes for her/himself or others, and is void where prohibited by law, and is revocable at the sole discretion of the wisher. This wish is warranted to perform as expected within the usual application of good tidings for a period of one year, or until the issuance of a subsequent holiday greeting, whichever comes first, and warranty is limited to replacement of this wish or issuance of a new wish at the sole discretion of the wisher.

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Ruh roh....

Jack Abramoff, the Republican lobbyist under criminal investigation, has been discussing with prosecutors a deal that would grant him a reduced sentence in exchange for testimony against former political and business associates, people with detailed knowledge of the case say.

But I'm sure such upstanding and principled GOP lawmakers like Tommy D have absolutely nothing to fear...

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Timewaster o' the day

Jonah Goldberg links to a seasonal classic: Penguin Baseball.

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Tuesday, December 20, 2005

And on the 8th day...

God created common sense, or at least well-reasoned federal judges. Now maybe the ID folks can go back to building the ark.

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Price Gouging for the holidays

Thanks to the illegal strike GC alluded to below, it will be costing people upwards of $300 to get to JFK Airport.
In what may be a case of prohibited price gouging related to the transit strike, a Queens car-service company says it will charge a $300 fare for a passenger traveling to JFK Airport today.
Crosslands East Transportation in Long Island City normally charges $40 per hour for its car service.

But yesterday, in response to two requests for rides to JFK, a dispatcher said the company is accepting reservations for today only from customers with existing corporate accounts, at a charge of $50 per hour, with a six-hour minimum.

The dispatcher said that the special $300 fare was in effect because of the expected subway and bus strike.

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Random blog question

Every now and then I'll check the referrals to the blog, and I'll see a grouping of 6 or 7 blogs together. But these blogs haven't referenced us as far as I can tell, nor do they even have us on their links. Anyone out there with some blogger knowledge who knows what that is?

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The NSA Wiretaps and the President's Article II Powers

(Warning, very, very, very long post, so please click the “Read more” button.)

Okay, so my first effort at dealing with this NSA imbroglio caused many lawyers and non-lawyers to have their eyes glaze over with legal text. In addition, it appears that it may also have cured some minor cases of insomnia. That being said, I’m going to risk things and take another crack at untangling some of the legal issues associated with this ever developing story.

Let me start by covering my ass a bit. First, while there is a lot that has been reported, there is so much more that we do not know. In fact, much of what we do not know (and perhaps should never know for reasons related to national security) is critical and may play a huge role in assessing the legality or illegality of what the President has authorized on the advice of his lawyers (White House Counsel) and the Justice Department. That said, I think we know enough to make some assumptions and raise some questions, to which hopefully our diligent commentators will find interesting.

[UPDATE] I'd be remiss if I didn't post a link to Prof. Orin Kerr's analysis over at the Volokh Conspiracy. Prof. Kerr concludes that while the Executive's actions may be constitutional they also may be in violation of the statutory provisions of FISA. He does quite a comprehensive job, although he goes in a bit of a different direction than I do. Nevertheless, it is an excellent piece that I encourage all to read either before, after or instead of slogging through my thoughts.

It seems to me that the predicate question that we have to deal with is what kinds of “intercepts” or “wiretaps” are we talking about; are they domestic or international and; what, if anything, is the difference? These are all excellent questions for which the operative statutes, the Foreign Intelligence Surveillance Act (FISA) and the Wiretap Act, generally do not provide good answers for. Many people have tried to make a distinction between international communications and domestic communications, but while that distinction is clear in some cases (i.e., a call from LA to NY is clearly domestic, while a call from London to Paris is clearly international), it hardly seems to cover the universe of possibilities (i.e., what is a call from London to NY, or a call from LA to Paris?).

Second, you have the open question of who are the persons involved in the phone calls? Are they US citizens or not; are they terrorists, or are they merely persons suspected or believed to have terrorist links; or do they fall into some other category of persons not previously defined? The FISA statute and the Wiretap Act clearly state that no surveillance of US persons (defined by FISA at 50 USC 1801(i) to include, not only citizens, but also “alien[s] lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States”) can be conducted without a court order.

Let’s assume for the purposes of this writing that the predicate questions have been clearly answered as such. First, the communications are entirely international; however you want to define the terms. This precludes the argument made by some that phone calls from NY to LA are being tapped, but says nothing either way about whether one of the systems involved was in the US or not. Second, let us assume that there were at least some US persons involved either placing the calls or receiving them. Note I used the term “person” and not “citizen,” in order to encompass those people who may be in the US legally, but are not considered citizens. This of course preserves the potential Fourth Amendment augments that might be made later.

So now where are we? Well it seems as though what we have is an Executive Order, from the President authorizing the NSA to conduct limited intercepts of international communications (broadly defined) regardless of whether they involve US persons or not, without having to obtain a FISA or any other court order. Next question, is this legal, and if so, by what authority? Here’s where things get interesting, at least from my perspective. The predicate questions are important and perhaps determinative, but not the most fun. Besides, we may never know the answers to them anyway. Nevertheless, it seems that we can make several legal arguments based on my assumptions about the answers to those predicate questions. One question that I won't attempt to answer is, that if all of this was so clearly leaglly authorized by FISA and other statutes, why issue an additional Execuitve Order? If existing statutory law covered the entire universe of what this program was intended to accomplish then it seems to me that the EO was unnecessary. The fact that one was issued at least raised the possibility that there is much more to this than meets the eye and arguably much more than FISA authorizes, which is why there are classified legal memorandum that purport to provide justification for this program. Like I said, I don't have the answers to those questions, but it seems to at least at some point undermine the arugment that all of this is clearly legal or clearly within the law as currently drafted. But enough of that, let's get to the far more interesting Article II discussion.

Initially, we have an argument that this may be justifiable based on the President’s inherent powers under the Constitution. Specifically, this argument relies on Article II, section 2, clause 1, commonly referred to as the “Commander in Chief clause,” which states that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States …” Like many clauses of the Constitution this one is a bit vague. If opens the door to questions such as what does this clause mean; what are its limits, if any and; what have the Courts said about its interpretation? I’ll try to provide some of those answers below.

With respect to meaning, surprisingly there appears to have been little discussion at the Constitutional Convention, during the ratifying debates, or by the Supreme Court of the so-called “Commander-in-Chief” clause. From the available evidence, it appears that the Framers vested this power with the President because historical experience counseled against vesting command of military forces in either a group or in a person separate from elected political leaders. See E. May, The President Shall Be Commander in Chief, reprinted in The Ultimate Decision, the President as Commander in Chief (E. May ed., 1960) 1. At the Virginia ratifying convention, James Madison, replying to Patrick Henry’s objection that danger lurked in giving the President control of the military, is quoted as asking if “the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether?” J. Elliot, 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 393 (1836). Similarly, at the North Carolina convention, Mr. Iredell is quoted as having noted that “[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch, and decision, which are necessary in military operations, can only be expected from one person.” See id. at Vol. 4, 107.

Initially, it appears that the clause was interpreted narrowly as only including the purely military aspects of being Commander-in-Chief. As Alexander Hamilton noted in Federalist No. 69, the office “would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy.” In addition, Joseph Story states in his Commentaries on the Constitution of the United States that:

The propriety of admitting the [P]resident to be commander in chief, so far as
to give orders, and have a general superintendency, was admitted. But it was
urged, that it would be dangerous to let him command in person, without any
restraint, as he might make a bad use of it. The consent of both houses of
Congress ought, therefore, to be required, before he should take the actual
command. The answer then given was, that though the president might, there was
no necessity that he should, take the command in person; and there was no
probability that he would do so, except in extraordinary emergencies, and when
he was possessed of superior military talents.

In 1850, Chief Justice Taney, writing for the Supreme Court in Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850), also appears to have adopted this narrow understanding of the clause, noting that the duties and powers of the President “are purely military.” According to the Chief Justice, the President

[a]s commander-in-chief, is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the manner
he may deem most effectual to harass and conquer and subdue the enemy. He may
invade the hostile country, and subject it to the sovereignty and authority of
the United States. But his conquests do not enlarge the boundaries of this
Union, nor extend the operation of our institutions and laws beyond the limits
before assigned to them by the legislative power.

Conversely, a broader interpretation of the Commander-in-Chief clause derives from President Lincoln’s assertion that the “war power” could be used for the purpose of suppressing rebellion. See 7 Messages and Papers of the President 3221, 3232 (J. Richardson comp., 1897). In 1863, a divided Supreme Court in the Prize Cases sustained this theory. See The Prize Cases, 67 U.S. (2 Bl.) 635 (1863). The Prize Cases addressed the validity of President Lincoln’s blockade of Southern ports following the attack on Fort Sumter. Opponents of the blockade argued that for such an action to be legitimate there must be a validly declared “public war,” and only Congress could constitutionally declare war. Writing for the majority, Justice Robert C. Grier argued in favor of a broad interpretation of the President’s Commander-in-Chief power by asserting that, “whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’ ... A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.” Id. at 668-670.

Also important when discussing the President’s constitutional powers as Commander-in-Chief is the Supreme Court’s opinion in Youngstown Sheet & Tube Company v. Sawyer, commonly referred to as the “Steel Seizure Case.” 343 U.S. 579 (1952). During the country’s involvement in the Korean War, President Truman ordered the seizure of the steel industry, which was then in the throes of a labor strike. Congress had provided no statutory authority for such a seizure, and the Solicitor General defended the action before the Court as an exercise of the President’s Article II powers, including his powers as Commander-in-Chief. The Court rejected this argument 6-3, holding the seizure void. Congress’s express rejection of seizure proposals when considering labor legislation and subsequent enactment of procedures that were not followed by the President created a doctrinal problem for the Court and, thus, the case produced no clear majority opinion. Four Justices appear to have been decisively influenced by the fact that Congress had denied the power claimed in an area in which the Constitution vests the decision making power, at least concurrently, if not exclusively, in Congress. See Youngstown, 343 U.S. at 593, 597-602 (Justice Frankfurter concurring, though he also noted he expressly joined Justice Black’s opinion as well), 634, 635-40 (Justice Jackson concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring). Three and perhaps four Justices appear to have rejected the Government’s argument on the merits, while three accepted it in large measure. Despite the inconclusiveness of the opinions, it seems clear that the result was a substantial retreat from previous opinions of the Court, which have been interpreted as having greatly expanded the scope of presidential powers.

In more modern times, proponents of an expansive interpretation of presidential power have cited defenses of the course followed by various Presidents while involved in Indochina. For example, a Legal Adviser to the State Department contended that under the Constitution, “the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. ... These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States ....”

Conversely, opponents of such an expanded interpretation of presidential powers have contended that the authority to initiate war is not divided between the Executive and Congress, but rather is vested exclusively in Congress. The President appears to have the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander-in-Chief arguably is empowered to direct the armed forces only for purposes specified by Congress. Though Congress has asserted itself in some respects, it has never really managed to confront the President’s power with any sort of effective limitation, until the passage, over presidential veto, of the War Powers Resolution. It should also be noted that in Dames & Moore v. Regan, the Court returned in part to the opinions in Youngstown Sheet & Tube, stating that its holdings embodied “much relevant analysis” regarding the issue of presidential power.

Even more recently, Congress, in response to the terrorist attacks of September 11, 2001, enacted the “Authorization for Use of Military Force,” which provides that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” In addition to the broad grant of authority from Congress, the Executive Branch has argued that it has plenary authority under Article II to engage in specific war related activities. For example, the Executive Branch argued to the Supreme Court that it possesses the inherent authority to hold “enemy combatants” for the duration of hostilities, and to deny them meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan; however, a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.

So after all of this we are left not really knowing if the President’s inherent Article II powers confer him the authority to order NSA intercepts without having to first acquire a court order. Depending on your view of the scope of Article II’s grant of authority, it seems that reasonable arguments can be made both in favor of such a program as well as opposed to it. Personally, I think this comes really close to the line, but it’s not clear that it crosses it, unless you can clearly show that US citizens were involved on either end of the communication. If that is the case then it seems to me that you have arguments available pursuant to the Fourth Amendment that I tried to preserve above. It seems rather clear that wiretaps qualify as unreasonable searches under the Fourth Amendment, thus requiring law enforcement to either get a court order (warrant), or demonstrate that an exception to the warrant requirement applies (i.e., exigent circumstances). Absent that there appears to be no legal bases for asserting authorizations. Congress, even it its War Powers Resolution can’t waive the Constitution, and it seems that neither can the President under Article II even citing national security concerns. Now it may be that in some of these cases the standards for something like exigent circumstances existed, which would have justified the intrusion absent a court order, however, since we will likely never know the answer to that question either way, it seems fruitless to speculate.

At the end of the day I stick by my claim that we likely will need an investigation into some of these questions. While I know that is going to be complicated and likely fruitless, I nevertheless think it serves some limited purpose of checking unfettered executive power. All of this may in fact turn out to be both legal and politically acceptable, but right now I think that’s hard to say even if you are an unabashed supporter of the President. As I said before, hopefully Congress will follow through with their threats to hold hearing and demand documents and information. At the very least it will make the executive plead its case more clearly and then we’ll all be able to judge for ourselves whether this is acceptable behavior or not. And isn’t that what a republic like ours is all about

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Transit Union Strikes Out

This morning, I walked to work by walking over the Brooklyn Bridge. It is indeed a beautiful bridge, and I recommend making the walk at least once in your life, but this morning's walk was hardly a scenic one, and it is so cold up here today, I think I lost a couple of toes to frostbite. I did it because New York's Transit Workers Union Local 100 thought it would be a good idea to go on strike five days before Christmas and shut down New York's entire public transit system in the process.

Why did they go on strike? I thought you'd never ask. (Click the "Read More!" link below to see the full post.) Unions in this town (like unions elsewhere) seem to think they have some sort of divine right to make exorbitant amounts of money without actually doing any work. The TWU is no exception. Most of its roughly 35,000 members have starting salaries in the vicinity of $40,000-$45,000; needless to say, their salaries can and do increase substantially. They work union hours (read: very few hours), receive sick amounts of overtime for working on weekends and holidays, and have the panoply of union protections, which basically means a phalanx of lawyers is always at the ready to fight in order to help a transit worker unworthy of employment keep his job.

The TWU has been in talks with the Metropolitan Transit Authority (MTA) for weeks now, and the issue came to a head last week with a strike deadline looming for midnight on Thursday night. The MTA was offering a reasonable salary boost -- a 6% salary increase over three years -- with some upward adjustments that future union members would make to their own health care and pension plans and a change in the retirement age from 55 to 62. They also want to make it harder for transit workers (who are notoriously poor on the customer service end) to be disciplined, or even scrutinized via disciplinary proceedings, in the wake of public or supervisor complaints.

What did the TWU want? In addition to demanding that the retirement age stay put at 55 and insisting that future workers not contribute anything more to their health care and pensions, they also wanted what amounted to a 30% salary increase over the next three years. Thirty percent! You can't make this stuff up.

After a three-day postponement of the strike and fruitless round-the-clock negotiations, the MTA put its final offer on the table and basically said, Take it or leave it. The union left it, literally -- they walked out of the hotel where negotiations were being held and back to TWU headquarters on the West Side. After letting all trains and buses already in service reach their final destinations, TWU workers walked off their jobs at about 3:00 a.m. this morning.

Why am I boring you all with New York's current transit woes? Because, in an indirect way, they affect broader debates this society needs to have about unions, health care, and retirement.

Those of you who know me know I hate unions. I despise them. I think they are corrupt organizations that have long outlived their usefulness. A century ago, I would probably have been a progressive and a union supporter, when workers were losing limbs and working 20-hour days, but it is hard to rouse sympathy for people who want a one-third salary increase and less accountability to the public. Mayor Michael Bloomberg has all but announced his intention to crush the union with heavy monetary fines under the Taylor Law (which makes it illegal for public workers to go on strike), and I could not be happier.

More broadly, the issues being brought up here may find their way into national debates about health care, pensions, and the retirement age. Like Social Security, the current transit worker retirement age is a product of a different time, when lifespans were shorter and retirement was illusory for many. Now, with people living longer -- decades longer -- than they used to, there is no real-world reason why a public employee, drawing a salary from citizen tax dollars, should get full retirement at what is essentially middle age. I hope the MTA does not give in on this point. I would rather they cave on salary and stick to the age requirement (although the MTA has given no indication of yielding on anything).

And this health care and pension nonsense. I cannot believe we are even seriously debating whether or not workers should contribute more substantially to their own health care and pensions. The answer: Of course they should. The socialist mentality that has co-opted all levels of government in the last half century needs to go. There are no more limitless coffers (as if there ever were). More people need to pay more of their own way. Cities, states, and the federal government simply cannot pay for everything for everybody. Expecting public employees to make contributions to programs that provide for their well being is a simple and reasonable start to curbing out-of-control governmental expenditures.

Finally, if the TWU thinks it is making any friends by striking during the week before Christmas -- where people need to get to work or out of town, or when retailers do their best last-minute business for the Christmas shopping season -- they are sorely mistaken. New Yorkers are furious, are with the mayor in his implied pledge to make the union pay, and have long, long memories.

May they all get lumps of coal in their stockings.

Update: A plethora of updates, all of which bode well for a defeat of the union thugs pushing this strike:

- The Transit Workers Union International spanked Roger Toussaint, the barely literate moron running the TWU Local 100, and essentially withdrew support of both Toussaint specifically and the strike generally.

- According to an MTA spokesman, some transit workers crossed the picket line and returned to work, recognizing that their duty is to the people of New York rather than socialist union bosses. (Each and every one of the people who did return to work should be awarded a commendation by the mayor and given raises and promotions.)

- The TWU Local 100 also knows it is losing the invaluable public relations battle, which is why it removed the comments field (which, by the way, was filled with overwhelmingly hostile comments) from its propagandistic blog (hosted by our very own Blogger).

Hat tip to Rail Ravings.

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Monday, December 19, 2005

Shocking News Story of the Day

This one's for Gipper Clone:
While the editorial page of The Wall Street Journal is conservative, the newspaper's news pages are liberal, even more liberal than The New York Times. The Drudge Report may have a right-wing reputation, but it leans left. Coverage by public television and radio is conservative compared to the rest of the mainstream media. Meanwhile, almost all major media outlets tilt to the left.

These are just a few of the surprising findings from a UCLA-led study, which is believed to be the first successful attempt at objectively quantifying bias in a range of media outlets and ranking them accordingly.

"I suspected that many media outlets would tilt to the left because surveys have shown that reporters tend to vote more Democrat than Republican," said Tim Groseclose, a UCLA political scientist and the study's lead author. "But I was surprised at just how pronounced the distinctions are."

"Overall, the major media outlets are quite moderate compared to members of Congress, but even so, there is a quantifiable and significant bias in that nearly all of them lean to the left," said co‑author Jeffrey Milyo, University of Missouri economist and public policy scholar.
In other news, a team of scientists has discovered that women like chocolate, bears do in fact shit in the woods, and the Pope is Catholic. More at 11 with the team "No Shit, Sherlock" Action News.

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Sunday, December 18, 2005

Hail, Hail to the victors

That was quite the thumping the Redskins put on the Cowboys, and I must say I am quite pleased with the Skins 35-7 shallacking of dem Cowboys. It's always heartwearming to see the Cowboys playoff hopes so devastatingly hampered.

But what's even more satisfying about the Redskins victory is that it will make watching the Giants roll into FedEx Field on Saturday. utterly humiliating the Redskins for the second time this year, clinching a division title while simultaneously crushing the Redskins fleeting hopes, all the more delicious.

Oh it's going to be quite something listening to the vapid sports radio this week and hearing all the cute, gullible Skins fans talking up this team as if they are anything worth hyping. Sadly I will be out of town next Monday, so I won't get to hear the dejection in their voices as they, once again, fall short of even making the playoffs.

Ah, good times.

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Friday, December 16, 2005

Muchas Gracias

The United States House of Representatives went and did something unusual today: it cast a responsible vote in favor of national security and sovereignty.

The House voted 260-159 in favor of commencement of construction of approximately 700 miles of fencing along the United States-Mexico border. This, frankly, is something that should have been done thirty years ago, but better late than never, I suppose.

While I applaud the House for finally getting it (or at least responding to the pressure of constituents who get it), two things prevent this from being a substantive step toward protecting our borders:

- The United States-Mexico border is substantially longer than 700 miles; and

- The United States Senate, and its decided lack of testicular fortitude, will no doubt kill this bill.

In time, we might actually have senators that favor national security. Until that day comes, I can only say to the House members who voted yea: muchas gracias.

P.S. Do you think Vicente Fox is angry that the House of Representatives has decided to interfere with his domestic economic agenda, which consists solely of sending his impoverished citizens into the United States illegally to earn money and send it to Mexico?

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A Stern Goodbye

Today was Howard Stern's final day on free, or as he likes to call it, terrestrial radio. He closed his career on free radio with a mini parade/rally outside his studios.

I must admit it was something of a sad moment for me. Believe it or not I have been a listener for over 15 years, though I skipped most of last year and his daily Bush bash. There were also those torturous years in Atlanta with no Stern. But for most of my days I woke up to the sound of Stern in the morning. Back in high school I would go jogging while Stern was on the air, and the hilarity of his show and particularly the news with Robin Quivers (and I can hear the sentimental music that introduced the newscast as I type this) kept me going that extra mile or two.

Yes, it was/is a rather crude show, and it's only going to get cruder now that he has absolutely no restrictions. But the show was much more than just strippers, lesbians, and weird people who had sex with their mothers/sisters/grandmothers/dogs. Okay, not much more, but it beats the hell out of the rest of the morning schlock. I can not bare the thought of listening to some insipid morning zoo (Oh joy, Elliot in the Morning, I can listen to his whacky DJ voice for hours, I tells ya). Then there's the old coyboy Lameus in the Morning. Even just thinking of listening to that drooling old fart for more than a few minutes causes me to yearn for sweet, sweet death to come and take me. I guess Mike and Mike are okay, but God help us if one of them is out (which seems to be the case like 90% of the time). The sound of Eric Kesilius (or however the hell it is spelled) makes me want to bore a hole through my eye socket with a blunt screwdriver.

So, I guess I'll miss the Stern show. Yeah, he got a little whiny at the end - okay, more whiny than usual. And his repeated invocation of the "American taliban" is pretty freaking stupid. But he did sort of have a point about the FCC, though it's hard to get too worked up about a guy who will now be earning hundreds of millions of dollars for his "persecution."

Fare thee well, Mr. Stern. I might get satellite radio one day, though if I do, well, let's just say "okay, terrific" to the guys I'd prefer to be listening to.

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Don't pray in my school and I won't think in your church

Ok, so that's one of my favorite bumper stickers that I just happened to see on my walk to work this morning and it just so happens that I have occasion to use it today...

This article from the Economist examines an interesting twist in the debate over religious curriculum being fought between Christian high schools and the California's UC system, based on the latter's refusal to accept students from the former if they don't meet the established course criteria. Personally, I think the mention of Bob Jones provides just about all the delegitimization necessary, but others may have different thoughts...

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The Problem with Simplistic Legal Analysis to Make Political Points

I’m sure that by now everyone has seen the stories in the New York Times and the Washington Post regarding the alleged NSA wiretapping of US persons pursuant to a secret Executive Order that may or may not be legal. I’m going to be very careful about the words I use because this is an incredibly complicated matter and I’m far from the most qualified attorney to pass judgments, especially legal ones. That said, I am qualified to read the US Code and that’s why this post from NRO’s The Corner both surprised me and at the same time ticked me off.

Here is the excerpt from the beginning of Mr. Levin’s post. Levin is, by the way a noted attorney and popular conservative legal commentator:

Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.”

Seems simple enough, right? The President can under certain circumstances authorize wiretaps or other electronic surveillance without obtaining a court order. However, when you actually read the text of 50 USC 1802 you get a much more restricted view of what actually is permitted.

Here’s a small snippet of the statute, with my own emphasis added:

(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and …

From this it seems that, in fact, Levin’s depiction of the statute completely contradicts what the statute actually says. A FISA court order is required for all forms of surveillance except those that are exclusively between foreign powers or on foreign soil, AND where there is no likelihood of hearing a US person’s conversations. Not as Levin claims where “the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.” Bottom line is that Mr. Levin is just wrong, 180 degrees wrong.

Now I don’t have any reason to think that there is ill will or intentional deceit here, just laziness. Nevertheless, this kind of thing is completely inexcusable, especially from a lawyer. If you don’t know something, just say “I don’t really know or haven’t checked but here are my thoughts for what they are worth.” We here at TPS, myself especially, do this all time. It’s a CYA mechanism, nothing more nothing less, and there is no shame in admitting you don’t know something. Here, however, Levin not only states things as fact, but provides code citations to support his positions. Unfortunately, the two don’t add up and it leaves a false impression about what is going on. Both papers reported that there were legal opinions, albeit classified ones, issued on this topic written by some very well-credentialed attorneys, and thus, I’ll reserve judgment until either they are released or a better case is presented. At best we can conclude that there is something to investigate, and hopefully Congress won’t shirk its Constitutional responsibility to conduct executive oversight by backing down yet again.

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So long. Farewell. Auf Wiederschauen. Goodbye

ST. LOUIS -- Braden Looper and the Cardinals agreed Thursday to a $13.5 million, three-year contract, giving St. Louis another newcomer in the bullpen.

Looper had 28 saves in 36 chances with a 3.94 ERA for the New York Mets last season, but will be a setup man for closer Jason Isringhausen with the Cardinals. The 31-year-old right-hander fills a slot held the past two seasons by Julian Tavarez, who became a free agent.

Looper's deal calls for salaries of $3.5 million in 2006, $4.5 million in 2007 and $5.5 million in 2008. He can earn $1 million annually in performance bonuses, some of them based on games finished in case he becomes the closer.
Hehehehe. Suckers.

Maybe away from the bright lights of New York, and in a set-up rather than closer role, Loopey (intentional sic) will do all right. But over $4 million per year for the guy?

Looks like someone else will be winning the NL Central this year.

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Thursday, December 15, 2005

On the other hand . . .

John Hawkins at Right Wing News presents some evidence that suggests that Cory Maye, whose story I linked to a couple of days ago, was not as innocent as the original blog post indicated.

Update: And Balko responds to this and other critiques here.

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Iranian President calls Holocaust a myth

I know that I wrote that I would prefer not to link to the sayings of whackjobs and idiots, but unfortunately this whackjob idiot is the President of Iran.
Iranian President Mahmoud Ahmadinejad on Wednesday called the extermination of 6 million Jews during World War II a "myth," bringing a new cascade of international condemnation onto a government that is increasingly viewed as radical even within Iran.

"They have created a myth in the name of the Holocaust and consider it above God, religion and the prophets," Ahmadinejad said in an address carried live on state television.

The speech in the Iranian city of Zahedan echoed the president's remarks at a conference of Islamic nations in Saudi Arabia last week, when he suggested that if Europeans established Israel out of guilt over the Nazi campaign, the country should be carved out of Europe.
Hmmmm. You know, it would be a real shame if an Israeli fighter plane accidentally flew off course and accidentally flew over Iranian airspace and accidentally let loose with a pay load that decimated Iran's nuclear capability. But maybe we shouldn't rely on Israel to bail us out of trouble with yet another crazy Middle Eastern country's efforts to construct a nuclear bomb.

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Wednesday, December 14, 2005

Confessions of a Blogger

Kathryn Lopez expressed thanks for being a Times Select suscriber when she saw the one-line description of Maureen Dowd's latest screed. In the back of my mind I was prepared to run over to my company's library to dig out the print edition of the Times to see what Dowd had to say, just so I could have the opportunity to mock her. But then I thought, "why bother?" What is the point of even wasting three minutes of my life reading a woman who is one of the dumbest and least engaging writers of our time? She contributes nothing to the political discourse, and really no one takes her seriously.

This is part of a larger issue I have been struggling with for some time. Pssst. More after the fold. Hit read more. I have been struggling with the question of how to deal with or respond to, if at all, to people who really are not worth wasting one's time dealing with. Now, this is not about arguing with people whom I simply disagree with. After all, this blog is dedicated to thoughtful discourse between people of varying ideological beliefs. We have upheld, for the most part, a pretty high standard. Both my co-bloggers and the commenters consistently offer thoughtful, intelligent comments. So I have no problem engaging in debate, even if it sometimes gets heated. And I enjoy, for lack of a better term, picking apart other writings. The most notoriety I have received in a year and a half of blogging was my Confirm Them rebuttal to Hugh Hewitt. But what made that piece, and in fact that whole month of blogging, more worthwhile was the knowledge that I was engaged in debate with people whose opinion I deeply respected. It's much more stimulating analyzing a column or debating another individual when there's a high measure of intelligence coming from the other side, or when the other person is clearly a reasonable and thoughtful individual.

But what of people who are clearly lacking in intelligence, or who are generally unreasonable, or who are simply crude and idiotic. For example, Francis Beckwith linked to a story about a college professor who linked to a "Benny Hill" version of the "Passion of the Christ." Now, the professor in question deserves scorn for said action, but I also wonder what's the point in even drawing attention to such idiocy. Another example is the Toynbee article DS linked to last night. I saw this some time ago, have seen it mentioned on other blogs and have briefly commented on it, but never linked to it myself (I believe) on this site. Why? Because I wondered about the propriety of linking to such malicious drivel. Similarly, I never linked to a Phil Pullman critique of Narnia because his observations were so obtuse that I could not take his argument seriously. And, most infamously, is the case of Andrew Sullivan. His religious writings have become so unhinged that any trace of logic and reason has seemed to have vanished. He has libeled the Pope, and seems to lament the fact that the Pope is actually Catholic in belief and doctrine. The conservative and Catholic blogosphere has exploded in response to his writings, but I haven't really bothered. Why not? Because, again, what's the point?

Sometimes the idiocy reaches a higher level. Howard Dean has become a caricature. I have posted more than a few links to Dean's brand of lunacy, and have commented on why I believe he is destructive to the Democratic Party. But I didn't comment when he declared the Iraq War to be essentially unwinnable. Frankly, I have grown tired of writing about an individual who seems to be dumber than a post. On the other hand, he is the Chairman of one of the two major political parties, so he does have the potential to indirectly influence policy. And Andrew Sullivan has a daily readership of some 100,000. Kos approaches 1,000,000 hits a day, as does Democratic Underground. So it might be reasoned that these people merit responses simply because so many others listen to them, and there needs to be a voice offering a rebuttal. But it also seems that their idiotic blustering speaks for itself.

So I guess I am fairly conflicted. Blogging is a form of venting, and frankly it feels good to let loose with a nice little rant. But at what cost to my own sense of sanity? Is it really worth the headache to sift through the noise? Is it really worth it to read a Maureen Dowd or Eugene Robinson column just so I can snarkily comment on its insipidness? It seems my efforts can be better put to use elsewhere.

Just thinking out loud I guess.

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