Sunday, June 24, 2007

Is the VP a Legislative Official, an Executive Official, or both?
Mike Rappaport

Glenn Reynolds analyzes this issue here.  And quite well, except that I question his last move and his conclusion. 

Reynolds argues:

The argument that the Vice President is a legislative official isn't inherently absurd. [My note: It is actually correct, so obviously not absurd].  The Constitution gives the Vice President no executive powers: The VP's only duties are to preside over the Senate, and to become President if the serving President dies or leaves office. The Vice President really isn't an Executive official, and isn't part of the President's administration the way that other officials are.

Whatever executive power a VP exercises is exercised because it's delegated by the President, not because the VP has it already. So to the extent the President delegates actual power (as opposed to just taking recommendations for action) the VP is exercising executive authority delegated by the President.  [And Glenn is right about this subtle point.]

However -- and here's where the claim that Cheney is really a legislative official creates problems for the White House -- it seems pretty clear that the President isn't allowed to delegate executive power to a legislative official, as that would be a separation of powers violation.

Yes, it is the italicized portion that is questionable.  It sounds correct that the President can't delegate executive power to a legislative official.  But why not?  Well, the President can't delegate executive power to a member of Congress.  That is true, but that is probably for two reasons.  First, there is a specific clause which says that a member of Congress cannot also serve at the same time as an officer of the United States (which involves the exercise of either executive or judicial power).  But that prohibition does not apply to the Vice President, only to members of Congress, which the VP is not.  Second, the Constitution vests legislative power in the Congress of the United States, but the VP is not a member of Congress.  It sounds strange that he is the President of the Senate, but not a member of Congress, but the Constitution is pretty clear on this.

So, can the President delegate executive power to the Vice President?  It seems that he can, unless there is some implicit prohibition on delegating executive power to someone who has a legislative office.  And I don't necessarily find such a limit in the Constitution.  It seems clear that the President could delegate executive power to a judge without infringing on a constitutional limitation.  Indeed, judges have performed all kinds of executive functions throughout history, starting with Chief Justice Jay negotiation the Jay Treaty.

In fact, Glenn's argument is more far reaching than one might at first think.  If he is right, then Presidents cannot delegate power to VPs, but they appear to have done this regularly in the last generation.  It would make this modern practice unconstitutional.  Of course, this is not an argument against Glenn's reading -- lots of modern practices are unconstitutional.  But it would be significant. 

Of course, Glenn's final point is that it was politically stupid for the Bush Administration to take this position.  Well, that may be, but if it is true, that is because there are a lot of ignorant people out there.

Update: Glenn notes this post, but does not focus on the most significant point: my argument that it is probably not unconstitutional for the President to delegate executive power to the VP, even if he is a legislative officer. 

June 24, 2007 | Permalink | Comments (34) | TrackBack (0)

Is Fred Thompson attractive?
Tom Smith

I'm asking.  I find the idea the idea of him as some kind of sex god baffling, except as evolutionary psychology in action.  I was sort of hoping we could have a president whose sex life was somewhere in the normal range, as defined by me.  I don't think I'm every going to recover from you know who.  But as you review all the candidates, that does not seem to be in the cards.  Except maybe Obama, unless it turns out he has a mistress or two tucked away somewhere.  And Mitt, unless you hold him responsible for the sins of this fathers.

June 24, 2007 | Permalink | Comments (10) | TrackBack (0)

More humor from the NYT
Tom Smith

The NYT has a new internal watchdog.  Good news for collectors of the infinite varieties of hypocrisy. (via instapundit).

June 24, 2007 | Permalink | Comments (1) | TrackBack (0)

Saturday, June 23, 2007

Blogging K2
Tom Smith

You can follow the progress of EarthTrek's team on K2 here, a step by step if you will blog of their attempt on this greatest of all peaks, a much, much worthier objective than Everest.  It is for all practical purposes as tall as Everest, but much more difficult to climb.  And these guys are trying a route never done before.  They stand a good chance of losing at least one climber, which strikes me on reflection as pretty much insane, but it's not as if they were conscripted.

June 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Hamas and the PA
Mike Rappaport

Hamas's takeover of Gaza is a disturbing event, but I don't think that is the greatest danger facing Israel these days.  A much greater danger comes from the pressure that the West will place on Israel (and that many within Israel will also impose) to make large concessions to Abbas and the PA.  Immediately, money will flow in and Abbas will be praised, and everyone will forget (or at least not mention) that the PA does its own form of terrorism, that it is weak, and that it is corrupt.  Does anyone think that good results can come from such entity?  This type of wishful thinking is, of course, the mistake of Oslo once again. 

What should Israel do?  It should stand firm against Hamas in Gaza and it should simply treat Abbas proportionally -- better than it treats Hamas, but not as if he is something that he is not.  The fear is that Hamas will take over the West Bank, but that is not the only danger.  An unconstrained PA, flush with funds, and corrupt as ever, that competes with Hamas by reinstituting terror is another possibility that must be avoided.

Some of the things that Israel should do in response to Hamas are obvious and have been obvious for a while.  For example, as Charles Krauthammer says,

Israel should declare that it will tolerate no more rocket fire — that the next Qassam will be answered with a cutoff of gasoline shipments. This should bring road traffic in Gaza to a halt within days and make it increasingly difficult to ferry around missiles and launchers. 

If that fails to concentrate the mind, the next step should be to cut off electricity. When the world wails, Israel should ask, what other country on earth is expected to supply the very means for a declared enemy to attack it?

Unfortunately, there is not all that much chance of Israel doing this, and even less chance that Israel and the Quartet will adopt the appropriate response to the PA.  At the least, they should adopt Krauthammer's suggestion that

before we give him the moon, we should insist upon reasonable benchmarks of both moderation and good governance — exactly what we failed to do during the Oslo process. Abbas needs to demonstrate his ability to run a clean administration and to engage Israel in day-to-day negotiations to alleviate the conditions of life on the ground.

But don't hold your breath.  As I say, it is a dangerous time.

June 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 20, 2007

A Fitting Punishment
Mike Rappaport

For the Group of 88 Duke faculty members who rushed to judgment against the Duke lacross players: having the Duke case persuasively compared to that of the Scottsboro boys.   By the excellent John Steele Gordon.

June 20, 2007 | Permalink | Comments (4) | TrackBack (0)

Tuesday, June 19, 2007

Free Scooter Libby
Mike Rappaport

Or reduce his sentence or do something. 

There, I said it.  I am not entirely sure I believe it, but I am much closer than I used to be.  I have found the arguments for helping Libby persuasive but I don't really trust my judgment about the matter -- I fear I am biased.  (My sensitivities about my bias have been raised by regular reading of the fascinating Overcoming Bias blog). 

So I do take notice when someone who is certainly not biased reaches a similar conclusion.  Christopher Hitchens, who does not carry water for the President or his men, writes a powerful column about this matter in Slate.  And that says something.   

At the very least, I am convinced that the judge in the case is biased.  Hitchens puts into print my view that the judge's response to an amicus brief for Libby demonstrates bias.  (Of course, the existence of bias may not regularly get one a pardon or reduction in sentence, and that is the main hesitancy I continue to have about the issue). 

While I am at it, I should note that the special prosecutor, Patrick Fitzgerald, owes us an accounting for his behavior in this case.  (Hitchens details some of the problems.)   I don't mean to equate his seeming irresponsible behavior with the criminal behavior of Mr. Nifong in the Duke case, but the latter case does underscore the wrong that prosecutors may do.  I would like to see a justification for his behavior in this case, because I can't imagine one, and his explanation for his behavior is a nice place to start.

In fact, it seems to me that special prosecutors should regularly be required to file reports explaining their decisions in detail.  Since they have strong incentives to overprosecute, this might provide some small degree of a counterweight.

June 19, 2007 | Permalink | Comments (10) | TrackBack (0)

Monday, June 18, 2007

StanfordTroll gets sued
Tom Smith

A Yale Law School student who claims (plausibly, I would say) she was defamed in an anonymous internet post sues the troll in federal court.

June 18, 2007 | Permalink | Comments (1) | TrackBack (0)

Mike Rappaport

The Civil War in Gaza won by Hamas (apparently with help from Syria and Iran) should be a moment of clarity for people.  First, the Israeli withdrawal has shown how a Palestinian state operates, if anyone needed convincing.  No more -- at all -- should be heard about a Palestinian state unless one's objective is a radical Islamic state.  Second, Condoleeza Rice -- and her boss -- should admit error in forcing Israel to give up its ability to police the entry into Gaza from Egypt.  In fact, the question is why, now, Israel and the United States should continue with this agreement.  Presumably, significant smuggling occurs through that entry policed by the Egyptians.  The agreement should be terminated.  But don't hold your breath.  Even with unilateral withdrawals, the Palestinians are all about taking the benefits that are conferred without ever living up to their side of the bargain. 

June 18, 2007 | Permalink | Comments (1) | TrackBack (0)

Sunday, June 17, 2007

Paul Krugman is an America-hating ninny
Tom Smith

Can you even believe this?  From Herr Professor Krugman's NYT column . . .

“U.S. children,” write Mr. Komlos and Mr. Lauderdale, “consume more meals prepared outside the home, more fast food rich in fat, high in energy density and low in essential micronutrients, than do European children.” Our reliance on fast food, in turn, may reflect lack of family time because we work too much: U.S. G.D.P. per capita is high partly because employed Americans work many more hours than their European counterparts.

A broader explanation would be that contemporary America is a society that, in a variety of ways, doesn’t take very good care of its children. Recently, Unicef issued a report comparing a number of measures of child well-being in 21 rich countries, including health and safety, family and peer relationships and such things as whether children eat fruit and are physically active. The report put the Netherlands at the top; sure enough, the Dutch are now the world’s tallest people, almost 3 inches taller, on average, than non-Hispanic American whites. The U.S. ended up in 20th place, below Poland, Portugal and Hungary, but ahead of Britain.

Whatever the full explanation for America’s stature deficit, our relative shortness, like our low life expectancy, suggests that something is amiss with our way of life. A critical European might say that America is a land of harried parents and neglected children, of expensive health care that misses those who need it most, a society that for all its wealth somehow manages to be nasty, brutish — and short.

Now we have to run out and become Euro-socialists or else, here it comes, we will throw short puppies.  The econo-justice dynamic will punish us with little stumpy-boys, even unto the Nth generation.  And how's this for social science:  Unicef does a report showing the Dutch take the best care of their childern and, shore nuff, the Dutch kiddies are the tallest!  Gall dang!  If I had known it was so easy to make them sort of dee-ductions, I woulda become an economist, just like Dr. Krugman!  Honestly, does being a formerly leading economist give you some kind of special dispensation to insult everyone's intelligence?  Is he somehow allowed to say things that are so stupid because he is reputed to be so smart?  I know, let's do some Krugman style social science.  When people have PhD's and wrote lots of good papers long ago, then start writing for the New York Times, they gradually become complete hacks who confuse their prejudices for insights, and shore nuff, look at Krugman.  Q.E.D.  I had thought the Dutch were famous for being tall.  Reagan was tall and his nickname was Dutch.  The big galoot in the Western is frequently Dutch.  They're big people, Paul.  Big!  Their kids are big!  Maybe Americans are short because they don't eat enough cheese! For heaven's sake.  Please, just stop it.  You can make plenty of completely spurious arguments without being so transparent about it.

And please, will you just shut up about Europe.  We are are just too tired of Europe.  Europe is not hip anymore, Paul.  Maybe it's Korea or China now, I don't know, but it's not Europe.  Europe only seems hip to old people like you.  There are a few places where things are happening, like Ireland, and maybe recently liberated parts of Central Europe, but by in large, they are horribly overtaxed, over-regulated, and the smart kids what to get the heck out of there and come to the US.  Have you any idea what it is like to try to start a high-tech start up in France, or Italy, or Germany?  What kind of taxes a business has to pay?  Wonderful people, great food, beautiful buildings, yes, yes, but their economic system?  Don't make me laugh.  The Euro strong against the dollar because Congress has been spending money like there is no tomorrow, and if we did a tenth of the things Krugman thinks are necessary to make our babies bigger, the dollar would be a lot weaker, and I doubt it would any difference to our babies.  And speaking of babies, the Europeans aren't even making them!  You better hurry up and measure those little suckers, Dr. Krugman, while there are some left.  Italy, France, Germany, the UK, do any of them have replacement rates of reproduction among their native populations?  I don't think so.  So don't talk to me about sick societies.  At least we're making babies.

June 17, 2007 | Permalink | Comments (5) | TrackBack (0)