InstaRefuted

Glenn Harlan Reynolds, today's NYT:

The presidential campaign has taken a detour into a dispute over the constitutional status of the vice presidency. It all started when Sarah Palin asserted in her debate with Joe Biden that the vice president should play an important role in the legislative branch.

Ms. Palin has been roundly mocked for her claim. But she was probably right.... Aside from the job of replacing a president who dies or is unable to serve, the only vice presidential duties that are spelled out in the Constitution are legislative in character.

But if the vice president is a legislative official, then the exercise of executive power by the vice president raises important constitutional questions related to the separation of powers....

Extensive vice presidential involvement in the executive branch — the role enjoyed by Dick Cheney and Al Gore — is not only unconstitutional, but also a bad idea.

Glenn Harlan Reynolds, June 23, 2007:

None of this is to say that the President can't, in his own capacity, decide to apply different rules to the VP (who, after all, is an elected official, unlike cabinet secretaries, NSC staffers, and the like) if he chooses. But that's a different issue entirely from the "legislative official" angle. Like a lot of the Bush Administration's arguments, this is one that would make an interesting law school paper topic, or law review article, but that is politically idiotic and legally self-defeating. It's reminiscent, as one of Capt. Ed's commenters notes, of the Clinton Administration's effort to stall Paula Jones' lawsuit by claiming that as Commander-in-Chief the President is a serving member of the military. Clever, in a way. But definitely not smart.

Um, wow.  If anyone can find any evidence of Instapundit's regarding anything Dick Cheney has done in the past 7+ years as having been unconstitutional before now, let me know.  Cheney can no more make himself into a special fourth branch of government than Taco Bell can invent a magical meal in-between dinner and breakfast (or as dday said, "Fourthbranch ... think outside the Constitution")

Kagro X has a bit more to say about the constitutional claim:

The only vice presidential duties spelled out in the Constitution that have anything to do with the legislative branch actually proscribe a real legislative role for the VP, with the narrow exception of allowing him or her a vote in the case of a tie in the Senate. The VP can't introduce legislation, can't vote in committee markups, and can't address the Senate except insofar as he or she is ruling on or otherwise presiding over debate. Now, if you were to list the essential functions of a legislature, you would probably have to settle on the debating of policy options, and then voting on them. Well, only Senators may debate on the Senate floor, and the Vice President is not a Senator. And the Constitution is pretty clear about the other one: the VP "shall have no vote." In other words, all of that stuff we call "legislating" is unavailable to the Vice President with one narrow and very rare exception.

Other mentions of the duties of the VP: that he or she is elected in the same manner, by the same electorate, and to the same term as the chief executive; that he or she takes over in the event of the death, incapacity, resignation or removal from office of the chief executive; that he or she is subject to impeachment in the same manner as the chief executive (and to which legislators are not); and that he or she shall receive, count and announce the results of the electoral college voting for the federal executive offices in the presence of the two houses of Congress.

So that's the balance of it. The Vice President's one and only "legislative" role is to cast a vote only when the Senate is tied. All other functions -- three times as many being named -- relate directly to the selection and execution of the executive.

But wait, there's more from this insta-classic of sophistry. Claims Glenn -- with whom, mind you, I've had many warm exchanges over the years, but this is just batty:

The most important function of a vice president is to serve as a spare president. Using the spare president in the ordinary course of business is as unwise as driving on one's spare tire. Spares should be kept pristine, for when they are really needed.

Yes, it's just like Steve Carell's action figures in The 40 Year-Old Virgin: a Vice President apparently loses half his value once you take him out of his factory-sealed packaging.

If the president resigns or is removed from office, a vice president who has been involved in the activities of the executive branch is also likely to be at risk for impeachment.

We've impeached two Presidents and came close on two others, Nixon and Tyler.  In none of the four cases was the Vice President implicated in the President's wrongdoing -- though, to be fair, neither John Tyler nor Andrew Johnson had a Vice President.  Kagro X notes,

And the best way to prepare a vice president to take over the entire federal executive should it become necessary? Why, by sequestering him or her strictly from all exposure to executive activity, of course!

Well, that or asking him or her to refrain from and avoid entanglement in impeachable acts. But remember, Reynolds is a Republican, so in fairness, that may not have occurred to him as an option.

The Vice President has assumed a lot of power in recent decades because the Executive Branch is really, really big.  The idea that we need to keep the Vice President away from presidential decisionmaking only makes sense in a universe in which one didn't trust the Vice President to be competent in making any such decisions.  Hmm.

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The American Way of War

This week at Cafe, filmmaker and author Eugene Jarecki joins us for TPM Cafe book club. We'll be discussing his recent book, The American Way of War: Guided Missiles, Misguided Men and a Republic in Peril. Expanding on the themes from his film, Why We Fight, we'll be talking war, American foreign policy, the public's mandate and the Constitution. Or, in Eugene's words:

I try to put today's constitutional crisis (let's call it what it is) in an historical perspective. The Framers intended a government of the people, in which the separated powers of equal and opposing branches of government would exert checks and balances over each other and thus prevent any individual or faction from steamrolling the remainder of the society. Fast-forward two hundred years and we today see a very different picture - a government unleashed, its arrogant executive branch, aided by Congress and the courts as it tramples over the separation of powers, shows contempt for the checks and balances, and guides the country to long-term ruin in its effort to seize its own short-term gains.

Joining Eugene are Lawrence Wilkerson, retired United States Army Colonel and former Chief of Staff to Secretary of State Colin Powell, Greg Mitchell, Editor of Editor & Publisher magazine, and author, most recently of So Wrong for So Long on Iraq and the media, Andrew Bacevich, Professor of international relations at Boston University and author of The Limits of Power: The End of American Exceptionalism, Joe Cirincione, president of the Ploughshares Fund, a foundation focused on nuclear weapons policy and conflict resolution, Ben Friedman, Ph.D. candidate in Political science at MIT, and Research Fellow in Defense and Homeland Security Studies at the Cato Institute, and Naomi Wolf, author of Give Me Liberty: A Handbook for American Revolutionaries.

Join us.

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Obama's closing argument: I ask you to believe

Jed posted the last few minutes of Obama's closing speech, which was debuted today in Ohio. I watched the speech earlier today. It's powerful. And, I believe:


video details and more

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What’s the Matter With Kansas A GOP Petty
Thief

Today’s Republican crime report and perp walk is brought to you by the letter “T” and the number “6″. John Toplikar is the “T” in question, the Republican incumbent for Johnson County Commission District “6.” He’s just lost his reelection, according to Life in Sojoco, by being cited for misdemeanor theft this weekend. It seems Mr. Toplikar stole his opponent’s yards signs. Here’s the scoop from the Kansas City Star:

Olathe police cited Johnson County Commissioner John M. Toplikar on a charge of misdemeanor theft over the weekend.

The crime: stealing two of his opponent?s campaign signs.

?You always think it?s a campaign worker or kids or just vandalism,? said Toplikar?s 6th District opponent, Calvin Hayden. ?You certainly don?t think that the candidate would do it. It?s almost surreal. You just can?t believe it.?

. . .

Hayden and his wife said they saw Toplikar throw signs on the ground on Friday. But police told them they could not act unless the crime was caught on tape, the couple said.

That is when Kelly Hayden became determined, waking up at 4 a.m. Saturday and grabbing a video camera. She was with campaign volunteer Teri Atwell.

?They took walkie-talkies, tailed him,? Hayden said. The signs were worth less than $6.

?You don?t sacrifice your integrity for that.?

Of course, that’s assuming John Toplikar had any integrity to start with. Yes, Toplikar’s raid to steal $6 worth of yard signs, including his being confronted by a couple police officers, is on Youtube already.

I really like John Toplikar’s official bio, on the Johnson County Board of Commissioners web site:

?Keeping Johnson County an affordable place to live is a top priority in my role as a county commissioner,? says Toplikar. Toplikar has also made a top priority the enhancement of key components of county infrastructure, including roads and public safety.

That would be the public safety officers quizzing Toplikar about his theft in the latter half of the Youtube video showing his crime. The thefts happened on the sides of those roads he seems so concerned about.

That’s all today for this segment of the Republican crime report and perp walk. Stay tuned for more in the coming days.

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Forgetting The "One-Party Elephant"

I?m sure you?ve heard by now, along with me, what is destined to be one of the final, dying gasps of the Palin-McBush campaign as they approach what should be electoral obliteration in about a week (though I?m not assuming anything, I hasten to add). And that is the cry to ?beware of one-party rule,? or words to that effect (echoed by, among other people, Kevin Ferris yesterday in the Inquirer, and Jonathan Martin here).

And as long as I?ve brought up Ferris? weekly literary exercise in freeper fiction, please allow me to highlight the following mess in particular?

?(Joe Biden)?went out of his way Sunday to scare voters, saying an international crisis is inevitable solely as a test to an inexperienced President Obama. Worse, and oddly enough, Biden also suggested that Obama wouldn't handle the issue well.

Give me a break; here is the exact quote from Biden (as Obama said, maybe it was a bit of a flourish in elocution, but Biden?s fundamental point is correct)?

"Mark my words. It will not be six months before the world tests Barack Obama like they did John Kennedy. The world is looking. We're about to elect a brilliant 47-year-old senator president of the United States of America.

"Remember I said it standing here, if you don't remember anything else I said. Watch, we're going to have an international crisis, a generated crisis, to test the mettle of this guy.

"I promise you it will occur. As a student of history and having served with seven presidents, I guarantee you it's going happen. I can give you at least four or five scenarios from where it might originate."

Where in that excerpt does it indicate that Barack Obama would not handle a crisis ?well,? as Ferris puts it?

However, what I really wanted to highlight in Ferris? noxious punditry is the following?

"Pennsylvania is not out of the game for us," Cindy McCain said in an interview after an appearance at the National Constitution Center on Monday morning. "We're very much in it and very competitive."

Reasons for that, Cindy McCain said, are worries about the economy and one-party rule in Washington.

I?ll respond to the beer heiress and her prognostication about our beloved commonwealth a little later, but for now I just want to take a little trip back in time about, oh, four years ago or so, and recall the following:

This tells us how Dubya ?gambled heavily and won big? in the 2002 mid-term congressional election, in which ?Mr. Bush criss-crossed the country as the campaign hotted up, visiting candidates in key battles where advisers believed his presence could make a vital difference. Paying visits to three, four, even five states in a single day was not uncommon. In all, he visited a total of 25 states on the campaign trail.?

The story also noted that Dubya, who apparently is not fond of travel (I?m sure Clinton ?hit the road? more than Dubya as president, but I don?t have any stats on that at the moment), became ?grouchy and bad-tempered in the final five days of the campaign,? according to the Independent.

Awwww, poor President Highest Disapproval Rating In Gallup Poll History (I mean, what else is a figurehead supposed to do in an election year?).

But not to worry; because ?gambling Dubya? managed to pull it off that year and in '04 (barring electoral fraud in Ohio, of course, which is a subject of at least one whole other post), Nancy Gibbs and John F. Dickerson of Time Magazine gushed that, ?For sharpening the debate until the choices bled, for reframing reality to match his design, for gambling his fortunes?and ours?on his faith in the power of leadership, George W. Bush is TIME's 2004 Person of the Year.?

And call me crazy, but even though the Repugs managed to consolidate their holds on the Senate and the House that year, I don?t recall reading about ?the dangers of one-party rule? anywhere, or words to that effect (with this post noting presciently that, "The one consolation that people are clinging to is that (Dubya) will fuck things up so badly in the next four years that the Democrats will move back into favour. That's if we still have a world." ? hey, the bad word didn?t come from me, it?s a quote, OK?).

So what happened after that? Well, the Dems take over Congress in 2006, of course, with the predictable tepid response from our dear corporate media cousins, as noted by Media Matters here (what could be more boring than a Venn diagram?).

And it?s not as if the Repugs weren?t warned; as Frank Rich noted so correctly here in his New York Times column yesterday, the entire George Felix Allen ?Macaca? incident in Virginia that year was a warning that the red meat, cultural conservative, values voter demagoguery had had its day (fortunately for the Dems, though, the Palin-McBush team never got the memo, which I believe has a lot to do with its current slide into electoral oblivion).

And getting back to the former Ms. Hensley?s PA prediction, I give you this from the aforementioned Frank Rich column?

The constant tide of anthropological articles and television reports set in blue-collar diners, bars and bowling alleys have hyped this racial theory of the race. So did the rampant misreading of primary-season exit polls. On cable TV and the Sunday network shows, there was endless chewing over the internal numbers in the Clinton victories. It was doomsday news for Obama, for instance, that some 12 percent of white Democratic primary voters in Pennsylvania said race was a factor in their choice and three-quarters of them voted for Clinton. Ipso facto ? and despite the absence of any credible empirical evidence ? these Clinton voters would either stay home or flock to McCain in November.

The McCain campaign is so dumb that it bought into the press?s confirmation of its own prejudices. Even though registered Democrats outnumber Republicans by 1.2 million in Pennsylvania (more than double the 2004 gap), even though Obama leads by double digits in almost every recent Pennsylvania poll and even though no national Republican ticket has won there since 1988, McCain started pouring his dwindling resources into the state this month. When the Democratic Representative John Murtha described his own western Pennsylvania district as a ?racist area,? McCain feigned outrage and put down even more chips on the race card, calling the region the ?most patriotic, most God-loving? part of America.

Well, there are racists in western Pennsylvania, as there are in most pockets of our country. But despite the months-long drumbeat of punditry to the contrary, there are not and have never been enough racists in 2008 to flip this election. In the latest New York Times/CBS News and Pew national polls, Obama is now pulling even with McCain among white men, a feat accomplished by no Democratic presidential candidate in three decades, Bill Clinton included. The latest Wall Street Journal/NBC News survey finds age doing more damage to McCain than race to Obama.

I look at it this way; the last time we had one-party rule under the Repugs, a terminally ill woman in a persistent vegetative state was paraded before the nation, almost the entire leadership of the majority party was embroiled in a lobbying scandal led by a man currently serving a four-year prison term, and our government floundered in a virtually helpless state as practically the entire Ninth Ward of the city of New Orleans was destroyed in the aftermath of Hurricane Katrina (and that?s just for starters, to say nothing of the Iraq War, of course).

Assuming all good things next Tuesday, the Democrats would have to go a long way to amass a more abject record of futility than that.

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Invasion of the Obama Snatchers

Writing from his negro-proof panic room (which doubles as the laundry room when his wife send him out to get milk) a sweaty, disheveled, and quite possibly drunk Mark Levin types out a warning, inserts it into a hamster ball with Mr. Skittles the Wonder[...]

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Hoping for A New History

By the Law of Periodical Repetition, everything which has happened once must happen again and again and again -- and not capriciously, but a regular periods, and each thing in its own period, not another's, and each obeying its own law. The eclipse of[...]

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Obama's Closing Argument Speech

Yesterday on Meet The Press, John McCain gave Barack Obama one final talking point. Of President Bush, McCain said: "Do we share a common philosophy of the Republican Party? Of course," Mr. McCain told NBC News' "Meet the Press," which was taped in[...]

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Penn. GOP Sues Over ACORN

The latest in the GOP's actions against ACORN come in Pennsylvania, where Republicans have filed suit amid allegations that the group engaged in widespread voter registration fraud.

From the Philadelphia Inquirer:

The suit asks Commonwealth Court to force Pedro Cortés, Pennsylvania's secretary of state, to ensure that the state database used by county elections officials to approve local registration applications is working properly. GOP officials said that they have had reports that the database is often down, creating a backlog of registrations.

The complaint also asks that the court require the state to provide a significantly larger number of provisional ballots at each polling place so that voters whose registrations have not been processed by Election Day can cast ballots. It also asks the court to order ACORN to provide a complete list of all the applications it has obtained and to fund public-service announcements informing first-time voters that they are required to show proof of identity before casting ballots.

Cortés called the suit frivolous and said the allegations are "aimed at doing nothing other than undermining voters' confidence just 18 days before the election."

"The fact that apparently fraudulent registrations have been identified is a testament to the safeguards we have in place to prevent ineligible voters from casting a ballot," said Cortés, adding that the state has not received any complaints about the database system.

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My Almost-Hidden Stake in an Obama Win

Some people are still wondering whether Barack Obama will be flummoxed on Nov. 4 by the so-called "Bradley Effect." Maybe, maybe not, but that we're even debating it shows that much has changed for the better, as I note in a short commentary, "Things No One Talks About," in Dissent magazine.

What I don't talk about even there is that some of us were heralding this change even before we'd heard of Obama, way back when some of his biggest current backers were claiming that prospects like his could never materialize, and even that they shouldn't, because who needs a deracinated neo-liberal? The struggles behind his struggle can be quickly sketched, but they were hard-won, and worth knowing about.

So let's glance back 15 or 20 years, to when contests involving even only white candidates were shadowed by Willie Horton, Sister Souljah, Tawana Brawley, and O.J. Simpson. Only a few black scholars, such as William Julius Wilson and Orlando Patterson, and white writers, such as yours truly, suggested that the significance of race was declining - and that it should.

Conservatives such as Ward Connerly and Abigail Thernstrom were saying so, too, of course, assuring us that, with free-market prosperity, the only color to count would be dollar green. Leftists such as Thomas Sugrue and George Shulman retorted that racism and American capitalism are inextricable and that only militant anti-racism can dislodge capitalist exploitation.

But it wasn't conservative or leftist thinking that prompted Wilson, Patterson, me, and others to question the color-coded "identity politics" of racists and anti-racists alike. We even questioned variants of the "diversity" speak of the Ford Foundation, Louis Farrakhan, and David Duke, all of whom presumed that having a color means having a culture.

We insisted, instead, that the best way to dissolve racism's blighting effects (including some equally blighting non-white racialist responses) is to invest more deeply in a common civic-republican culture that sustains trans-racial heavy lifting in economic stimuli, early education, and, yes, family values.

For saying so we were accused rather bitterly of denying white racism and of chilling black pride and of being Uncle Toms or racists ourselves. Now, though, Obama is saying virtually everything we did. And he is winning.

No wonder that some conservatives dread him and some leftists reject him, as a dissimulating neo-liberal. That's how they process what he has done - whether they fear that he is undermining Sarah Palin's America or really only shoring it up.

Others have come around, though, to a more balanced view. I had to smile on Sunday as New York Times columnist Frank Rich inveighed against a mainstream press whose "default setting," he claims, "has been to ominously intone that 'in the privacy of the voting booth' ignorant, backward whites will never vote for a black man.'" In my book Liberal Racism ten years ago, I faulted Rich for using that default setting himself, discerning racism and reactionary politics in white proletarian gatherings like a Christian men's "Promise Keepers'" rally, whose composition he didn't notice was 25 percent black and Hispanic!

Times change - as has the Times. Twenty years ago, too few black leaders endorsed or embodied our hopeful consensus. Now, Obama has put that consensus to the clearest, cleanest test any of us could have envisioned. He can do it because he has put himself through the personal struggles I mention in Dissent and that I ruminated about here the day after the New Hampshire primary.

No one talks much about his early struggles these days, but from them he has enriched a civic-republican idiom worthy of Lincoln and more, tapping the deepest American currents in African-American identity and the indelibly black elements in American national identity.

He hasn't done it alone. The change he represents has come quietly to many others since the late 1990s: George W. Bush's elevation of Colin Powell and Condoleeza Rice to positions of influence and authority was part of a sea-change in the perceptions of many whites and of young blacks orienting themselves to broadening horizons.
Give a little credit even to John McCain, adoptive father of a Bangladeshi daughter, for refusing to tie Obama to the histrionic anti-racism of Jeremiah Wright.

But will Obama's trans-racial politics really prevail on November 4th, or will the "Bradley effect" be back on our lips?

Racist robo-calls and radio demagogues are stirring up racist diehards and dissimulators, whose fears may be driving state boards of elections to look for ways to stop new and non-white registrants from voting.

Fortunately the Supreme Court, perhaps recalling its own fall from public grace in the election of 2000, has sent a strong signal against sweeping suspensions of new registrants. The Justices know that many Americans who deferred to them in 2000 won't tolerate a similar gambit on their part this year. And that's because national thinking about race has changed, fitfully and painfully, for the better.

Obama has done everything a black candidate could to show that this country's redemption has not and will not come through making race a central organizing principle of our polity and civic culture, let alone a wedge for partisan politics. Decent Republicans and conservatives have stepped forward to show it, too.

Now it's up to those who claim, as Palin does, that Obama is different from other Americans to admit that he's different enough from inner-city black youths, too -- though similar enough in ways racism has made important -- to have turned their heads, raised their hopes, and denied them any cheap racial excuses.

If Obama loses, despite an economic crisis that ought to doom supply-siders like McCain, it will be a body blow to all of us who've looked and reached beyond race in American politics. But if he wins by more than a bitter squeaker, I won't just feel vindicated; I'll fantasize another possibility, one I haven't heard any great mentioners mention:

If Obama would consent to be sworn in as "Barack Hussein Obama," millions of young Muslims' heads would turn, too. I'd love to watch his American detractors absorbing the gain that would bring to America's best civic-republican ideals world-wide, as well as in Harlem, the Southside and Watts.

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