Yesterday’s hearing on legislative and executive powers before the Judiciary Committee has generally a great deal of media and blog discussion. However, one of the more curious takes was written by Dana Milbank of the Washington Post. Entitled “Activism on the Court? GOP Wants To Be The Judge,” the article portrays the hearing as a hypocritical and “newfound love of activist judges.” Having testified at the hearing, I was mystified by the spin on the hearing. Ironically, Milbank was criticized in the hearing by a member for allegedly distorting a prior hearing’s content and focus — an issue that we discussed in December. In a tense moment, Milbank (who was sitting a few feet from the members at the press table) was criticized for his prior column where he portrayed a Judiciary hearing as largely about impeaching President Obama. He was challenged as misrepresenting that hearing which contained only passing reference to impeachment as one of the various options left to Congress by the framers in serious conflicts with presidents. This now appears a continuing battle between the columnist and the Committee that will only grow more intense with this latest column. Here is the video link to the testimony so you can reach your own conclusions.
I actually enjoy Milbank’s writings. He is often clever and funny in his covering of Washington stories. He is a very intelligent reporter and has been around this city for a good long time. In fairness to Milbank, it is also important to note that he is an opinion writer and readers look to him to give his unique take on stories. He is entitled to focus on the aspect of the hearing that he finds most telling and interesting. A smaller but accurate account appeared on the same page by David A. Fahrenthold (which is different from the last controversy). Notably, however the print version of that piece is entitled “Lawmakers Get Pep Talk In Standing Up To Obama” which is hardly a fair description of a hearing reviewing four pieces of legislation and exploring the legal standards that would apply to such cases. (The web version here is more fairly entitled). Milbank’s article is available here.
The article in the Post however seems oddly unconnected to the hearing. The thrust of Milbank’s article is that Republicans now want activism in seeking standing to sue the President. Notably, Milbank does not explore the opposing conflict in the position of some Democrats in resisting judicial review and voicing support for a president with unilateral and seemingly unchecked powers. Milbank also suggests that any such lawsuit would be “frivolous.” While he does concede lower in the article that “[t]here are legitimate questions to be asked about the long-term shift of power from the legislature to the executive,” he portrays the hearing as all about wanting to get activist decisions from the courts.
Ironically, as discussed in my testimony below, the hearing has little to do with the merits of any of the controversies over the circumvention of immigration, health care, and other laws. We were discussing the ability of members of Congress to simply gain access to the courts in conflicts over the separation of powers. The Supreme Court has made an unholy mess of standing jurisprudence, a view shared by many if not most academics in the field. It is true that this issue pits Republican members against ultra-conservative jurists like Scalia (and puts Democrats in positions of supporting Scalia’s narrow views on standing in favor of presidents). However, that is what makes this a unique opportunity. If the Democrats were to fight for their clear institutional authority, we could see a unified Congress in fighting for separation of powers principles. This is about process not policies. Courts have increasingly removed themselves from separation of powers disputes and the result has been raw and dysfunctional conflicts between the branches.
Republican members in the hearing were highly critical not just of President Obama but President Bush. That is a moment that should be acknowledged and not misconstrued in coverage. Moreover, the failure to consider the silence of other members in the face of unprecedented circumvention of the legislative branch would seem worthy of equal discussion.
Milbank also attacks one of the three expert witnesses in the hearing: Professor Elizabeth Price Foley (right) who is portrayed as hypocritical given an earlier article that she wrote in the Daily Caller entitled “Why Not Even Congress Can Sue The Administration Over Unconstitutional Executive Actions.” Foley explained at length when confronted in the hearing that she did not choose the title — any more than Milbank or Fahrenthold chose the titles this morning. She also explained that she was referred to the weight of the cases as they stand now — not her personal view. From Warren Burger to William Rehnquist, the Court has made it more difficult for people to get access to the courts to challenge unconstitutional actions. However, there remains considerable confusion over the lines of standing jurisprudential, particularly for lawmakers. I have long been an advocate for legislative standing and have represented members in challenging executive actions. I though Foley gave an accurate and impressive account of the standing cases from their standpoint. It was not some “pep talk” or call for activism, but a frank and fair discussion of the issues remaining in these cases. I have never previously met Foley but I was very impressed with her knowledge of the cases and issues. Her testimony is available at the link below and was detailed and thoughtful. Also available is the opposing testimony of Professor Christopher Schroeder of Duke University Law School (left).
I also was surprised to read that the hearing “filled three hours with accusations and wild hypotheticals: ‘Tyranny. ‘Dangerous and scary moment.’ ‘Imperial presidency.’ . . . ” These words are taken out of context. Tyranny is the danger described by Framers in the concentration of power and is used widely in academic work on the aggrandizement of power. “Imperial presidency” is a term used to describe the Nixonian concept of a dominant presidency. There are clear dangers presented by the concentration of power in our system and we have to see beyond how we feel about this president or his critics. There is a dangerous and destabilizing shift without our system that did not begin with this President but has certainly accelerated under him.
Once again, I value the work of Milbank who has long been a strong and insightful voice in the media. However, I do not view this piece — even as an opinion piece — to fairly represent the substance or the statements from the hearing. Because I honestly believe that we are in the midst of a dangerous shift of power within the tripartite system, I was disappointed. Milbank is someone who could add an articulate voice in explaining the dangers posed by a dominant president in a system of shared powers. Our system is changing as we are too caught up in this poisonous political debate to stop and take note of the implications of those changes. This will not be our last president, but these powers will remain. Those issues are explored below in the testimony that I gave at the hearing. The other witnesses have testimony available on this site.
leejcarroll,
It’s his modus operandi. He has little of substance to add to discussions…so he makes negative comments about those he disagrees with and/or tries to poke them into an angry response.
I am always surprised when I post links and clicks to (usually) Huckabee, I follow on FB to see what he says and what his lemming like followers think, that they respond like, sorry Nick, like Nick without proof to backup their claims that whatever you post that does not agree with their worldview is biased.
I do not like Sharpton but unlike Fox, and his ilk, MSNBC often has both sides on the shows, not just those that line up with a progressive bent. Hannity et al, have repeatedly been shown to lie, distort, exaggerate to try and prove spurious “facts” such as “birther” junk.
Sean Hannity caught in a blatant lie
Mr. Hannity shouldn’t have ignored those orders to wear a helmet when he was a construction worker.
nick,
You’re accusing me of something. Care to back it up with some proof? Why don’t you do some research and find proof that the information in the articles that I linked to isn’t factual/true. It’s SO easy to post negative comments about others on this blog. How about you back up one of your acuusations for a change?
When will blind ideologues learn that posting articles from a very biased left wing source, about right wing media, is ludicrous. Oh, and the reverse is also true. Lemmings to the left of me, lemmings to the right of me!
Al Sharpton, ‘Nuff said!
I thought most followers of this blog consider Fox News = Weekly World News without the cool alien abduction stories.
Inside the Fox News lie machine: I fact-checked Sean Hannity on Obamacare
UPDATE I re-reported a Fox News segment on Obamacare — it was appallingly easy to see how it misleads the audience
Eric Stern
10/18/13
http://www.salon.com/2013/10/18/inside_the_fox_news_lie_machine_i_fact_checked_sean_hannity_on_obamacare/
I just want to qualify my statement about MSNBC vs FOX. I only watch Maddow, Hayes and O’Donnell and O’Reilly and Hannity regularly, I concede that Sharpton and Schultz are more akin to O’Reilly and Hannity. It is not my intention to provoke this pointless discussion. Hannity is a birther and provides a platform to the King of the Birthers, the disgraceful Donald Trump. I have no doubt that Turley’s decision raised many eyebrows among his colleagues and students. Presumably, he defended this decision, and I, for one, would welcome hearing the reason he resorted to Hannity to broadcast his important message. Was he rebuffed by everyone at MSNBC? Even so, appearing with Hannity has the potential to diminish the well-earned fair-mindedness of Professor Turley. Though Turley was quick to point out that this usurpation of power was not limited to Obama and began under Bush, Hannity predictably put all the focus on Obama. In addition, Hannity attempted to elicit the “I” word from Turley which he declined to so do. For what it is worth, I posted here in the vain hope that the good Professor might learn that another one of his admirers has added his voice to the chorus of those who think as I do.
From one year ago:
10 biggest lies spewed by Sean Hannity
On Tuesday, Rep. Keith Ellison accused the Fox News host of telling “mistruths.” He was speaking euphemistically
Chelsea Rudman
2/28/13
http://www.salon.com/2013/02/28/10_biggest_lies_spewed_by_sean_hannity/
On the Feb. 27 edition of Hannity, host Sean Hannity replayed part of his Feb. 26 interview with Rep. Keith Ellison. During the exchange, Ellison responded to Hannity’s question about the federal debt being “immoral” by saying, “You are immoral for telling lies.” Hannity asked, “I’m immoral? What did I do that’s immoral?” Ellison responded, “You tell mistruths. You say things that aren’t true.” Speaking before the clip was aired, Hannity said Ellison “at times, seemed incoherent” and “really started grasping at straws.” After the clip was aired, Hannity said to guest J.C. Watts, “I just gave him the rope and said, go. Here you go, rant away.”
10. Hannity Hyped RNC’s Doctored Audio of Supreme Court Arguments. Hannity uncritically aired a Republican National Committee (RNC) ad that used audio from Supreme Court oral arguments to attack health care reform — but the audio used in the ad was dishonestly edited. [Media Matters, 3/30/12]
9. Hannity Distorted CBO Data to Attack Obama. Hannity claimed that a January 2012 Congressional Budget Office (CBO) report showed that if Obama were to win a second term, taxes would “go up 30 percent.” In fact, the report only stated that taxes would increase at such a rate if all the Bush tax cuts were allowed to expire. [Media Matters, 2/2/12]
8. Hannity Falsely Claimed a White House Adviser “Advocated Compulsory Abortion.” Hannity claimed that White House science and technology adviser John Holdren “advocated compulsory abortion” and sterilization. PolitiFact had previously rated a similar claim — made months earlier by Fox News’ Glenn Beck — “pants on fire” false. [Media Matters, 9/9/09]
7. Hannity Falsely Claimed Obama Called the Death of Four Americans “Just a Bump in the Road.” Hannity claimed that Obama referred to the death of four Americans in the September 2012 attack on a U.S. compound in Benghazi as “just a bump in the road.” In fact, Obama was referring to the difficulties Arab countries were facing in transitioning from autocratic rule to democracy. [Media Matters, 9/25/12]
6. Hannity Spread False Report That Egypt Was Considering Necrophilia Bill. Hannity hyped a thinly sourced report from an Egyptian newspaper to claim that the Egyptian government was considering a law that would allow a husband to have sex with his dead wife. The Christian Science Monitor called the story “utter hooey,” and multiple sources later debunked the claim. [Media Matters, 4/30/12; Huffington Post, 4/26/12]
5. Hannity’s Special on “Liberal Bias” Featured Wildly Distorted and Out-of-Context Quotes. Hannity’s “Behind the Bias” special, in which he purported to investigate the “bias” of “the mainstream media,” featured multiple deceptively cropped quotes. For example, he played a clip purporting to show that Katie Couric called President Ronald Reagan “an airhead”; in fact, Couric was citing a conclusion from a biography of Reagan. [Media Matters, 4/24/11]
4. Hannity Cast Doubt on Scientific Consensus About Climate Change. Even though the overwhelming majority of scientists agree that global warming is occurring and is likely caused or exacerbated by human activity, Hannity has repeatedly denied or cast doubt on the existence of climate change. [Media Matters, 12/4/09, 1/13/10, 8/27/10, 11/19/10, 6/24/11]
3. Hannity Fueled Myth That Obama Is a Muslim. During a segment in March 2011 in which he fueled the smear that Obama was not born in the U.S., Hannity claimed that Obama “went to a Muslim school.” In March 2012, while claiming that he was “not doubting [Obama’s] faith,” Hannity said, “[L]ook, he did write about his early years, that he did study the Quran, that one of the most beautiful moments in life was prayer at sunset. So, I mean, he does have that background.” [Media Matters, 3/24/11, 3/21/12]
2. Hannity Fed the Birther Movement. Hannity repeatedly fed the long-standing smear that Obama was not born in the United States, even after Obama released his birth certificate and multiple fact-checkers debunked the smear. Hannity denied that Obama had shown his birth certificate and once falsely claimed that Obama “grew up in Kenya.” [Media Matters, 3/28/11, 4/20/12]
1. Hannity Ignored Overwhelming Evidence to Repeatedly Claim Obama’s Policies Have Not Helped Improve the Economy. Hannity has repeatedly claimed that President Obama’s policies have not improved the economy. In fact, numerous economists and independent analysts have noted that many of Obama’s policy achievements, such as the stimulus, have benefited the economy: GDP is growing rather than contracting as it was at the end of 2008, and the economy has added millions of jobs. [Media Matters, 1/13/10, 7/14/11, 2/2/12]
Looks like the Russians may have upped the annie. Will the President talk to Congress?
Jeffrey, I don’t agree w/ you but your civility is commendable and much appreciated. Being a libertarian, I am very reticent to use “ought not” when it comes to personal choice. If someone’s personal choice has an effect on me, then I will weigh in. I’ve said here many times my mother’s oft repeated wise words, “To each their own.” And, consistent w/ that philosophy, I respect your opinion on Mr. Turley’s appearance on Fox. The only show I watch w/ any regularity is Jake Tapper. I find him a smart and fair reporter.
nick:
fish dont know that water is wet.
Jeffrey, You do realize the network you watch “3 hours a night” is the same only @ the other extreme, don’t you?
I watch 2 hours of Fox as well. I’m a news junkie! There is a profound difference between MSNBC and FOX: whereas MSNBC is biased, FOX is prejudiced – the former is inescapable- everyone is biased, the latter is deliberate slanting and intellectually dishonest. There is no moral or intellectual equivalence between Chris Hayes and Sean Hannity, but there is no point in disputing this since it is a matter of opinion. Can we not agree that there are some programs that a serious intellectual ought not to appear?
Jeffrey, I think Mr. Turley showing up on Fox is a sign of how committed he is to getting the truth out there. He probably thinks the same of Hannity as do you, but any port in a storm. And we are in a hurricane right now.
The ends don’t justify the means. Do we need to debate it? In addition, one must weigh what may be gained by what will be lost when one associates with the likes of Glenn Beck, say. I’m simply advocating that Hannity should be included in the same class as shock jock Michael Savage, et al. And shunned.
I watch 3 hours of MSNBC coverage each night religiously, and I fail to recall seeing any coverage of this issue regarding separation of powers. It is a real shame and disheartening if I am correct that MSNBC had ignored this important topic for political reasons. Be that as it may, I must confess that seeing Professor Turley appear on Hannity last night truly disillusioned me. Whatever the merits of the case, legitimizing that intellectually dishonest host is incomprehensible. I take it you would not appear on the Alex Jones show. If you don’t realize that Sean Hannity is no better, I can only pity you.
“Yesterday’s hearing on legislative and executive powers before the Judiciary Committee has generally a great deal of media and blog discussion.” Unfortunately, this is not true when it comes to most of the media. And it should not surprise you that when you testify about matters that tend to support the administration, you will garner far more coverage than in this case, where you are essentially calling into question much of the Obama presidency. But good luck and keep up the good fight.
I think you explain it very well Darren. I am not an Obama fan whatsoever, but my real fear is that we will get another W-Cheney-Rumsfeld situation with no checks or balances left. The moment is now. It could soon be too late, and people that pose a counter argument in the future, like the Professor, won’t be tolerated. We know these things happen quickly and quietly.
One has to wonder if the topic at hand can be addressed.
Some are justifying the unilaterism shown in the recent occupants of the presidency as been good because Congress is deadlocked. They trumpet how each of them took charge and bypassed Congress. Well lets look at it this way.
What would happen if the exact same deadlock happened in a future Congress and the president took unilateral action him/herself. But, in that incidence the president took action by doing something you DISAGREED with. Then the same people today will be all up and arms about how the president is bypassing the will of Congress and becoming an imperialist. I’ll bet many are the ones who are saying now that whatever the president is doing good.
The fact that Congress is having trouble for whatever reason in passing certain legislation does not grant presidents the authority to ignore the tenents of the US Constritution and do as they please.
I know there are those out there who believe a particular president can do no wrong, but since the president is term limited to two terms they are not going to be there forever. And what’s the next going to be like? Could they be worse? Well if they are worse then everything that was done in the past to erode the triparte system and to bolster unchecked powers self granted by a president and expanded over the years by successive presidents, emboldened by lack of resolve by the other two branches to reign those powers in and having a large portion of voters who ignore the dangers of this type of powers because a charismatic president rewards them or creates an illusion of danger to convince them further erotions are necessary then we will create a presidency that is more like one having nearly absolute power and Congress and the Courts are either rubber stamps or simply irrelevant.
Arthur, The 9/11 hijackers were financed by the Saudi govt. and high ranking individuals connected to that govt. They were not acting against their own govt. They were financed by them!
What we did not need to do was go to war with any nation, most especially Afghanistan. We further did not and should not have ever agreed to the suspension of our Constitution offered by presidents Cheneybush and Obama.
As citizens, we must stop turning over our rights and start demanding the rule of law.