Pepper sprayed for public safety.

[Adder]

Originally Posted by sebastian_dangerfield

Lighten up, Francis. For fuck's sake... It's just an intellectual exercise. And by the way, you did notice the author didn't think the idea was wise to put into actual practice. I cited a more qualified author arguing against my position, and you chose, oddly, to rail at his article.

I love these kinds of discussions finding their way to broader audiences because they highlight fragilities in the system and widen the sphere of deviance in regard to acceptably discussed options. It's amusing stuff. You have to admit, a world in which the concrete baselines are continually shifted and consensus defied is entertaining to observe. One would have to be an ogre, or a tremendous dullard, to not find the current flailing nature of things, as scary as it might be for many, pretty fascinating. Why you're getting mad about an article discussing a radical fix I have no idea. I figured you'd agree with the author's conclusion The Policy Could Never be Implemented.

Related thoughts from Krugman.

Also, read what I said. I said Paul and the author were wrong about the implications of the thought experiment. I said nothing about it's desirability or feasibility.

I also said that the author threw out a lot of coockoo "Austrian" asides about money.

[taxwonk]

Originally Posted by Adder

Does it? Doesn't it sound like a political question?

Madison v. Marbury. The Court has jurisdicition over challenges by the Congress to the power of the Executive.

[Tyrone Slothrop]

Originally Posted by taxwonk

The Congress also appropriated discretionary fund for the military. They can't tell him he can not use money that has already been appropriated for discretionary spending. That would be a usurping of Executive power.

If Congress says, very clearly, that federal money cannot be used to incarcerate or try these people in the United States, then the federal government cannot spend money on those things. That is what has happened. I happen to think that Congress is very, very wrong in its judgment, but we are stuck with the Congress we have, not the one we want.

Also, as I noted above, I am fairly certain that the United States doesn't have the authority to kidnap people from their homelands, transport them thousands of miles away and leave them there to rot. As Chief Executive, Obama would be required to follow international law absent a declaration of war on the world, or a bare assertion of military power.

Obama is stuck with a mess that President Bush created.* If you assume that the only people left at Guantanamo are those whom Obama would move to the US and try there, then I doubt that there's any international law that says he must free them.

Instead of kidnapping people, Obama is killing them with drones. I've already said that I think this is bad policy, but if you accept that he is killing people who are at war with the United States and who are otherwise outside our reach, I'm not sure it's illegal. Some big caveats there, though.

[Adder]

Originally Posted by taxwonk

Madison v. Marbury. The Court has jurisdicition over challenges by the Congress to the power of the Executive.

I suppose. But once he does it, isn't it moot? And injunction telling the executive not to have spent money in ways congress said he can't?

[Tyrone Slothrop]

Originally Posted by Adder

Right. That's what comes to mind to me too.

I can't remember if there was any litigation over that, but surely it's a political question.

I guess they can try to impeach him over it. I don't suspect they would make a serious attempt to do so, though (i.e., they'd have someone marginal put up a resolution but not push to pass it). It's better politics for them to keep screaming about scare tactics than to give him a forum in which he's being prosecuted from which to mount a defense from the moral high ground. Maybe I underestimate their outrage though.

Anyway, I guess I'm with you in that I really don't seriously expect them to have done anything differently. But I'm also with Wonk in that I think I probably should.

If it is clear that Congress is acting squarely within an enumerated power, why do you think that Obama gets to simply disregard what Congress has done?

[Tyrone Slothrop]

Originally Posted by Adder

It's difficult, but Wonk's right that he can do it. He's commander in chief and the chief executive. He can move them to the brink at Levinworth and start putting them on trial and there is nothing Congress can do to stop him.

I don't usually respond to the same post twice, but isn't this like saying, "He's commander in chief and the chief executive. He can declare war on Uzbekistan and there is nothing Congress can do to stop him." Uh, no. Congress has the enumerated power to declare wars (and appropriate money), not the President. On some level, what happens in a constitutional crisis is a political question, but let's not kid ourselves about the law. I don't think the President should disregard the separation of powers just because Congress has done something I really disagree with.

[Adder]

Originally Posted by Tyrone Slothrop

If it is clear that Congress is acting squarely within an enumerated power, why do you think that Obama gets to simply disregard what Congress has done?

Is it clear? Congress gets to micromanage the functioning of the executive branch without limitation?

But with that aside, how do they stop it?

[Adder]

Originally Posted by Tyrone Slothrop

I don't usually respond to the same post twice, but isn't this like saying, "He's commander in chief and the chief executive. He can declare war on Uzbekistan and there is nothing Congress can do to stop him." Uh, no. Congress has the enumerated power to declare wars (and appropriate money), not the President. On some level, what happens in a constitutional crisis is a political question, but let's not kid ourselves about the law. I don't think the President should disregard the separation of powers just because Congress has done something I really disagree with.

In general, I agree.

[Tyrone Slothrop]

Originally Posted by Adder

Is it clear? Congress gets to micromanage the functioning of the executive branch without limitation?

A few brief moments with Bing yields someone named Rachel Casey saying this:

South Dakota v. Dole, 483 U.S. 203 (1987) provided four restrictions on conditional spending by Congress: it must “promote the general welfare”; it must give clear notice of the funding conditions; the funding conditions must relate to the federal spending program imposing the restrictions; and it must not fall afoul of other independent Constitutional bars. These requirements are fairly lenient. According to Dole, Congress doesn’t have to be right in its reasoning, just rational. In Kansas v. United States 24 F.Supp.2d 1192 (D.Kan. 1998), the court ruled that the states’ choice “receiving federal funds and complying with certain statutory mandates, or not receiving such funds” is not coercive. Taken together, these cases give very broad discretion to Congress in regards to the restrictions it can impose through conditional spending.

I think the general answer to your question is: yes. It would be different if the President had an enumerated power to seize and try foreign terrorists in the manner of his choosing, but it's pretty clear that Congress gets to create the federal prison system and can limit the jurisdiction of federal courts.

But with that aside, how do they stop it?

They could go court to seek an injunction to force the President to stop misappropriating federal funds, I suppose.

[Adder]

Originally Posted by Tyrone Slothrop

A few brief moments with Bing yields someone named Rachel Casey saying this:



I think the general answer to your question is: yes. It would be different if the President had an enumerated power to seize and try foreign terrorists in the manner of his choosing, but it's pretty clear that Congress gets to create the federal prison system and can limit the jurisdiction of federal courts.

Ah, the power of Bing! (God what a terrible branding).

And as to the latter, yes. But I'm not so sure that executive as commander in chief doesn't have an enumerated power to seize enemy combatants.

Wait, I'm turning to John Yoo! Ah!!!

I'm not sure that's the right case law though, as I'm not sure the federalism issues raised by funding conditions placed on states is the same as the separation of powers issue raised by funding restrictions placed on the executive.

It seems like the flip side of the line item veto case, in a way.

[taxwonk]

Originally Posted by Tyrone Slothrop

If Congress says, very clearly, that federal money cannot be used to incarcerate or try these people in the United States, then the federal government cannot spend money on those things. That is what has happened. I happen to think that Congress is very, very wrong in its judgment, but we are stuck with the Congress we have, not the one we want.



Obama is stuck with a mess that President Bush created.* If you assume that the only people left at Guantanamo are those whom Obama would move to the US and try there, then I doubt that there's any international law that says he must free them.

Instead of kidnapping people, Obama is killing them with drones. I've already said that I think this is bad policy, but if you accept that he is killing people who are at war with the United States and who are otherwise outside our reach, I'm not sure it's illegal. Some big caveats there, though.

I don't assume that the only people there are ones Obama wants tried. There are still some there who cannot be tried.

And murder being something "I accept" is not a caveat. It's murder.

[Tyrone Slothrop]

Originally Posted by Adder

Ah, the power of Bing! (God what a terrible branding).

And as to the latter, yes. But I'm not so sure that executive as commander in chief doesn't have an enumerated power to seize enemy combatants.

Congress isn't saying he can't seize them. It's saying he can't spend money to incarcerate and try them in the fifty states. So if it's a collision of those two constitutional principles, it doesn't seem like a close call.

[taxwonk]

Originally Posted by Adder

I suppose. But once he does it, isn't it moot? And injunction telling the executive not to have spent money in ways congress said he can't?

Hmmmm. You may be right, but I don't think so. The issue will still be ripe as long as there is a conflict between what the President asserts as his (so far) authority and what Congress asserts it may regulate. Congress could sue for an injunction, but more likely than not, the issue would ultimately be decided as a matter of statutory validity. The Guantanamo misappropriation was attached as an amendment to another bill.

[taxwonk]

Originally Posted by Tyrone Slothrop

If it is clear that Congress is acting squarely within an enumerated power, why do you think that Obama gets to simply disregard what Congress has done?

It is for the Court to say whether or not Congress is acting within an enumerated power, or, by crafting a purported appropriation that actually deprives the Executive of some material measure of his discretion as Commander-in-Chief, Congress has invaded the powwers of the Executive.

[Tyrone Slothrop]

Originally Posted by taxwonk

I don't assume that the only people there are ones Obama wants tried. There are still some there who cannot be tried.

He has released some people. I'm not particularly inclined to trust the decisions that are being made about whom to hold and whom to let go, but that doesn't mean that letting everyone go is the right answer.

And murder being something "I accept" is not a caveat. It's murder.

Sometimes killing during wartime is murder and sometimes it is justified.