The Great Excuse: Obama Blames The Constitution For His “Disadvantage” And The Need To Circumvent Congress

cropped-cropped-500px-scene_at_the_signing_of_the_constitution_of_the_united_states1.jpgAs many on this blog know, I often object to those who criticize our Constitution as a way of excusing their circumvention of civil liberties or the separation of powers. Some in the Bush Administration took that position in suggesting that our Constitution was somehow a contributor to the 9-11 attacks — in their push to pass the Patriot Act. President Obama seems to take up a similar lament to rationalize his repeated violation of the separation of powers in recent years. Obama raised the issue with donors to suggest that the Framers got it wrong in their design of Congress and Article I of the Constitution. Indeed, he appears to be a critic of the “Great Compromise” that gave small states an equal voice in the Senate. It is of course not his assuming legislative and judicial powers in the creation of what I have called an “uber presidency” that fundamentally changed our system. There is no real need for compromise of any kind in the new emerging model of executive power so it should not be a surprise that “Great Compromise” would appear particularly precious and unnecessary.

I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I just ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.

President_Barack_Obama President Obama is now responding by attacking the Constitution and saying that James Madison and others simply got it wrong by guaranteeing equal voting in the United States Senate. Of course, he has not shared such views with the public. Instead, he discussed them with a small group of Democratic donors who are facing increasing opposition from friends in supporting Obama. Obama met with these donors in a private event in Chicago and put the blame on the Framers: “Obviously, the nature of the Senate means that California has the same number of Senate seats as Wyoming. That puts us at a disadvantage.” These comments also appear on an official transcript. The President does not call to change the Constitution but laments about the structure of the Senate and the equality of small and large states.

Not to spoil the new post hoc spin but I find it less than obvious. The “disadvantage” that the President has been complaining about is the refusal of Congress to do what he has demanded. Ironically, he has faced more consistent opposition in the House, not the Senate. The House is divided according to population, which Obama appears to prefer.

The problem is not the Constitution but the division in the country. We are divided on a great number of issues. Roughly fifty percent of Americans hate Obamacare and want it repealed. Immigration and other issues continue to divide voters in both parties. While we have a representative democracy, it still has democratic elements. Congress reflects the divisions in the country. When we go through periods of division, fewer things get done and really big reforms or changes are particularly difficult. However, such division is no license to “go at it alone” as the President has promised. The Madisonian system is designed to force compromise and to vent the factional pressures that have torn apart other nations. That is precisely why the President’s actions are so dangerous. They are creating a dominant branch in a tripartite system that allows for unilateral action from a president. Such powers will outlast this president and will likely come back to haunt those Democrats and liberals who are remaining silent (or even applauding) this president’s actions.

As for the Senate, the “Great Compromise” in 1787 fit well in the anti-factional design of the Article One — even though Madison himself was once an advocate for proportional distribution and did not agree that large states would join together against small states. Where other constitutions (as in France) tended to allow factional pressures to explode outwardly, the U.S. Constitution allows them to implode within the legislative branch — funneling these pressures into a process where disparate factional disputes can be converted into majoritarian compromises. This happens through the interactions of houses with different constituencies and interests. The House tends to be the most responsive and desirous of the fastest reaction to national problems. After all, the members are elected every two years and represent smaller constituencies. The Senate has longer term and larger constituencies. It tends to put the breaks on legislative impulse. At the same time, the mix of different interests from large and small states changing the dimension of legislative work in the Senate — adding adding pressure for compromise and reevaluation.

The Great Compromise was forged after various plans from Virginia, New Jersey, and other states were debated. There was considerable support for bicameralism though William Paterson of the New Jersey suggested a single house system (with equal voting for the states). Some like Roger Sherman sought proportional representation in the “lower” house while guaranteeing equal representation in the “upper” house. Virginia delegates like Edmund Randolph and James Madison (as well as Alexander Hamilton) thought it should all be proportional in a bicameral system.

220px-RogerShermanPortraitThe conference rejected the New Jersey plan which would have created an unicameral legislature with one vote per state. However, the convention deadlocked on the Virginia plan. The issue was referred to committee and out emerged the Great Compromise or what was known as the Connecticut or Sherman compromise. The proposal was put forward by Roger Sherman and Oliver Ellsworth of Connecticut to blend the Virginia (large-state) and New Jersey (small-state) proposals. Sherman called for “That the proportion of suffrage in the 1st. branch [house] should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more.”

There is a moderating influence that has come from the additional constituency factor of small versus large states in the Senate. In fairness to Obama, the division does appear more driven by party politics than geographics today. I am not convinced that the large versus small states are a defining political line in today’s politics and Madison may have been right about that point. However, some of the divisions between the parties reflect such geographic elements. Western and Southern politicians tend to be less supportive of environmental issues, national parks and other areas that reflect their interests of their states and citizens. In the end, however, the “disadvantage” faced by Obama is found in both houses, not just the Senate. Moreover, polls show considerable opposition in the areas where Obama is acting unilaterally like immigration.

As for the House, Obama complained that he is also at a disadvantage because “Democrats tend to congregate a little more densely, which puts us at a disadvantage in the House.” That is a perfectly valid call for political action. The Senate comments tend to reflect a growing criticism among some supporters that the Congress is rigged against the Democrats due to the equality of state voting.

Ironically, if there is one provision that could clearly be changed as outmoded it is the electoral college, which has consistently dysfunctional effects on our system. Rather than change the fundamental structure of Congress, that would be a change worthy of presidential advocacy. The changes that have occurred in the Constitution makes this relatively small provision a growing anomaly in our elections. The equality of states in the Senate is neither the cause of the current deadlock (given the role of the House) nor does it excuse the President’s circumvention. It seems to be an obvious post-rationalization for acts of circumvention.

So here is my only request. This is not the first veiled criticism of the Constitution by leaders of both parties. I have long ago stopped hoping that our leaders would maintain a logical and efficient approach to taxes, the environment, education, and other areas. I have come to accept that the executive and legislative branches will continue to waste hundreds of billions and harass trends toward growth. However, I continue to believe that our system can carry the huge costs of both branches and still benefit our citizens. The only limited request is that the two parties with a stranglehold on this nation leave the basic principles of the Constitution alone. That is all. They can destroy the economy, the educational system, and even global stability. However, the Constitutional structure was given to us by the Framers and has served us well. It has certainly served us better than our leaders.

In other words, what is “obvious” Mr. President is that it is not the Constitution that is the problem.

849 thoughts on “The Great Excuse: Obama Blames The Constitution For His “Disadvantage” And The Need To Circumvent Congress”

    1. Mendez is the founder of Human Rights Watch (America) and actually has skin in the game. There is nothing on Wikipedia showing that he is an expert in this field.

  1. Schulte:

    “Never tried to pass anything off as my own work that was not. But generic fallacy there, buddy.”

    The genetic fallacy is attacking the source instead of the points. So, how did I do that? And you most certainly copied from Wikipedia, put it in your comment without any quotes or citations, and had I not recognized that it wasn’t your style or writing and googled it, it would have gone off as your work.

    Don’t BS me, buddy. You’ll get it back in your face.

    1. generic fallacy again. You cannot let up can you. You cannot connect the dots on torture so you attack either Bob, Esq or myself. BTW, my note to the special rapporteur for torture went out this morning.

  2. Schulte:

    “I find the continued repetition of your fallacious argument”

    What fallacious argument? Is it like Bob’s use of the “fallacy fallacy” against me?

    Or do you mean this argument, which is directly on point, as is the argument about the woman in Nebraska none of you want to talk about?

    “The UN special rapporteur on torture recently recognized that outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT, saying that “all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.”

    “I will be notifying all parties that the United States is a signatory with, to stop this torturous behavior.”

    Bring it.

  3. Never tried to pass anything off as my own work that was not. But generic fallacy there, buddy.

  4. As you are probably aware, the United States is a signatory to the United Nations, but does not sign on to all of its pronouncements. The rapporteur is not necessarily an expert in the field, only the one chosen to make the report.

  5. Schulte:

    “Annie – rather than the Wikipedia article, which we know could have legitimacy problem”

    From the man who copied and pasted an entire paragraph from Wikipedia on chicken hawks, and then proceeded to pass it off as his own work.

  6. Spinelli

    “Bravo, and well reasoned and stated, Bob. And wise choice to wash your hands.”

    Of course one should wash their hands when they’re covered in crap. It’s not healthy.

    Like this, from Bob:

    “You also claimed that “Torture is the infliction of pain.””

    I did no such thing. I merely copied one of the definitions of pain. I never said ALL infliction of pain is torture, which is what Bob wishes I’d have said so he could argue with that instead.

    What I stand by is what the UN special rapporteur on torture said, which I would think a marijuana prescribee like you would agree with:

    “outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT”

  7. Childish crap, Bob? That’s civility in your world?

    I think civility is highly overrated. I think you should reply to the paragraph I provided that is precisely on point. You might not like the UN, but I’m pretty sure the UN special rapporteur on torture is more qualified on this than you are.

    ““The UN special rapporteur on torture recently recognized that outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT, saying that “all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.””

  8. Paul honoring the civility rule I will not reply to you personally. I gave an example of what my doctor wrote in his notes in describing my pain and its effect on me. It was my body vis a vis the pain that was ‘victimizing” me (and since you have often indicated disbelief with the people we cite much less sources) that doctor was one of the founders of he specialty of neuroophthalmology, and one who understands what chronic pain; not something to be pooh poohed, or with which one “soldiers” on

    1. leejcaroll – three things. 1) then you are torturing yourself 2) I am always cautious of people who either create or help create new fields. They have skin in the game and it is necessary to not only defend their new creation but to make sure new people get on board with it. However, the pioneers are often found to be incorrect. For example, Sigmund Freud started psychoanalysis, but now his theories are pooh poohed. 3) That is an odd note for a doctor to write unless it was designed to be seen by someone else.

  9. Bravo, and well reasoned and stated, Bob. And wise choice to wash your hands.

  10. The following:

    “The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”

    is NOT an argument.

    It is a claim.

    What’s more, as shown above, it is a false claim.

    Furthermore, claiming that a letter from The U.N. Special Rapporteur constitutes

    “an international treaty, ratified by the U.S., recognizing the withholding of pain medication as torture”

    is yet another false claim.

    You also claimed that “Torture is the infliction of pain.”

    This is yet another false claim; since not all inflictions of pain are torture.

    Example:

    Two boxers in the ring inflict pain on each other; yet they are not committing acts of torture.

    The denial of pain medication in and of itself does not necessitate the intentional infliction of pain for purposes of punishment or coercion and is therefore not torture per se.

    Can the denial of pain medication be used as part of a system of torture?

    Yes. Just as the denial of water can be used as part of a system of torture.

    However, the denial of water per se is not torture. A coach denying his players a water break is not torture.

    I now wash my hands of this childish crap.

  11. Annie said: “While my last three links deal with prisoners, those of us who suffer with chronic pain and aren’t incarcerated, deserve the same right.”
    We are incarcerated: we are prisoners of pain. (The term my neuroophthalmologist used was “victimized” – “She is being victimized by her pain.”

    1. leejcaroll –

      “She is being victimized by her pain.”

      Now, we play the victim card? And is your doctor complicit in your victimization? Or, is your body victimizing you?

  12. Bob Esq attempts to use the argument from fallacy, or the “fallacy fallacy” on my apparent misuse of the term treaties. I then provided the quote from the UN special rapporteur on torture, which is precisely ON POINT:

    “The UN special rapporteur on torture recently recognized that outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT, saying that “all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.”

    Bob then gives us an intro to philosophy short course:

    “Arguing is reason giving.”

    Pat Buchanan denying pain meds to a burned terrorist is torture.

    The woman in Nebraska was tortured.

    The people behind this should be ashamed of themselves for using their authoritarian government to do these things to people. Real libertarians would never stand for it.

  13. Karen S:

    “That link to torture and CIDT was from Liberal Human Rights Watch. ”

    Genetic fallacy. Argue the points, don’t attack the source. And while it’s fine to say, they come from a liberal point of view, it’s not fine to say that because of that you don’t have to agree with them that, say, if you deny a woman the right to an abortion, and she suffers excruciating pain for 10 days, then those who denied that abortion have tortured that woman. I have provided plenty of proof on that point.

  14. Leej, that sounds like torture to me. Shame on those doctors.
    ****************************
    Dredd, LOL! That Springsteen video brought back a few memories and Bruce does wear those jeans well.

  15. One last link from me re torture and pain:

    80% of countries use torture – New Zealand is one

    Thousands of prisoners are also subject to a form of enhanced pharmacological torture. Instead of being given drugs which cause pain, prison doctors in New Zealand are told to take medication off prisoners who are in pain. Section 6.1.1 of the Department’s Medicines Policy “actively discourages” doctors from prescribing opiate (pain killers), benzodiazepines (for anxiety), ritalin (for ADHD) – or any drug which might be ‘traded’ in prison. In some prisons, this policy appears to include anti-depressants and anti-psychotic medication. In other words, prison doctors are encouraged to breach their medical ethics, ignore the welfare of their patients, and allow them to suffer.

    Richard Barriball was a victim of this ‘discouraged medication policy’. Prior to being admitted to Otago prison in 2010, he was on four different pain medications after a series of operations on his arm. On his first day in prison, the prison doctors took away two opiate pain killers; four days later they took away the benzodiazepines he had been on for years.

    With increasing pain, anxiety and in severe withdrawal, he committed suicide three days later. The coroner said Corrections provided him with sub-optimal care.

    http://pundit.co.nz/content/80-of-countries-use-torture-%E2%80%93-new-zealand-is-one

  16. Annie

    Dredd, we need some transparency!
    ==========================
    It’s like a student rebellion over a crotchety application of a prima facia poem about civil stuff floating in a cloud some distance above criminal stuff.

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