Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

21 November 2014

At Last the President Leads

[For analysis of how the GOP has become The Reactionary Party, click here.]

We are Yanks. We do things. We do things that no other people could do, or that no other people thought of doing. We make things work. At least we used to.

We formed a new nation on a sparsely populated continent. Our Founders were conscious and unabashed social engineers. They created a new form of government, with a separation of powers, checks and balances, and a Bill of Rights.

Some think that was the most important thing we Yanks ever did. But we did lots of other things, too.

We invented controlled flight, electric lighting, phonographs and movies. We arose from rural isolation to become the decisive factor in defeating human history’s two greatest military tyrannies. Later, we helped dissolve a third, peacefully and without a shot fired.

After working decisively to win the greatest war in human history, we didn’t rest on our laurels. Instead, we created the United Nations and planned the Bretton Woods economic forum, which eventually morphed into the WTO.

We sanitized our tropical South by eradicating malaria and yellow fever and abolishing slavery. We invented television. We invented vaccines for polio, which had crippled our greatest president. We set up medical networks that eradicated smallpox. We co-discovered DNA, co-invented CAT scans and MRIs, co-contained AIDS, and set up medical networks that, so far, have beaten SARs, swine flu, and bird flu, and are containing ebola in Africa and fighting it there.

We invented atomic energy and nuclear weapons. We used the weapons to stop the most horrible war in human history and convert a terrible military tyranny into a thriving democracy and the world’s third-largest economy.

We put Men on the Moon. We invented the Internet, originally to let essential communications survive a nuclear war. Then we gave it to the world for commercial use, even to our rivals and potential enemies.

So I think I can say, without exaggeration or bragging, that we Yanks are inventors and problem solvers.

But not on immigration. Our broken system has festered for 28 years, since the President was 25 years old, and still too young to run for the top job. Hard to blame it all on him, isn’t it?

Our system is not just broken. It’s vicious, immoral and cruel.

It breaks up families. It keeps honest, hard workers in the shadows. It subjects them to exploitation by dishonest and oppressive employers. It uses them as political footballs, while exploiting their labor for low prices. It’s a demonic system unworthy of our democracy and our national reputation for compassion, fairness and justice. In short, it’s a mess.

Opponents of compassionate reform invoke “law” and a twisted notion of fairness. It’s “unfair,” they say, to let people who came here illegally “jump ahead” of those who waited patiently for legal status before coming.

So what should we do with the eleven million already here? One “solution” is to deport them all. Wasn’t that the kind of thing Stalin did? He deported millions of innocent, ethnically non-Russian workers and peasants all over the former Soviet Union. Do we want to emulate him?

The other option is to keep the “illegals” in limbo, where they are now. There, employers can exploit them economically, pols can exploit them politically, and their families can be torn apart, just so those patiently waiting in the legal immigration queue can enjoy their priority. Is that what we Yanks really want?

Sometimes “logic” is not only inhumane and unjust, but flat wrong. This is one of those cases. Another was the First-World-War Germans’ absurd notion of “total war.” It animated the worst atrocities in human history and nearly extinguished our species in October 1962. Now we humans have rejected it: we see the goal of war not as exterminating our human enemies like cockroaches, but as changing their behavior. Sometimes pure “logic” is inhuman.

In trying to solve this vile and long-festering problem on his own, some say, the President exceeded his authority. But the leading Supreme Court opinion on presidential power is Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the so-called “steel seizure” case. For three generations, jurists and legal scholars have taken his probing and flexible analysis as the most that can be said, in general, on the subject of presidential power.

Justice Jackson divided challenges to presidential power into three categories: (1) those involving express or implied congressional approval, (2) those involving the “absence of either a congressional grant or denial of authority,” and (3) those involving presidential “measures incompatible with the expressed or implied will of Congress[.]” He put President Truman’s seizure of the steel plants during the Korean War squarely in the third category, and so he concurred that it was unlawful.

Our current President’s decision to act, announced yesterday evening, falls squarely in the second category, not the third. His temporary expedient of exercising the Executive Branch’s prosecutorial discretion to avoid a torrent of unnecessary, impractical and cruel deportations falls within a clear and longstanding vacuum of congressional action: Congress’ failure to do anything for 511 days.

More important still, Congress’ failure to act was a clear and obnoxious example of minority rule. When the Senate passed comprehensive immigration reform over a year and a half ago, the House would have adopted it, too, had it come up for a vote. There was ample bipartisan support in the House to pass it.

What stopped the House from helping make law was an obscure House rule, adopted by the then Republican majority in the House. Called the “Hastert Rule,” it requires a majority of the majority, then a minority of the whole House, to approve a bill before it can come to the House floor for a vote. So a “solution” to our immigration debacle, which has festered for 28 years now, failed because a minority of the whole House blocked it.

So not only did the President act within a vacuum of congressional decision. It was a vacuum deliberately created by a minority of the House. Under these circumstances, what would Justice Jackson say?

We don’t have to speculate. He already opined. “[C]ongressional inertia, indifference or quiescence,” he wrote, “may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility.” Isn’t this precisely such a case, where Congress failed to act because of the deliberate obstruction of a minority of a single House?

There is yet another reason why our Supreme Court should not, and probably will not, rule against the President. Our Constitution gives a president of the United States—any president—plenary power over foreign policy. Yet immigration lies in the no-man’s land between foreign and domestic policy.

The status and potential deportation of immigrants is far indeed from the seizure of privately owned domestic steel plants at issue in the Youngstown case. Although President Truman tried to justify that seizure as necessary to prosecute the Korean War, its objects were wholly domestic properties, and the aggrieved persons their US-citizen owners. In this case, the objects of the President’s action are illegal aliens, presumably objects of his dominant constitutional authority over foreign policy, defense, and national security.

But enough of legal niceties. We Yanks pride ourselves on our “rule of law.” But other countries have law, too. They include China, Iran and Russia. Even IS has law—Sharia law.

Somehow, we Yanks think we differ from them in what most of us see as essential respects. The difference, as I have pointed out, is that we Yanks recognize the distinction between law and justice. When the two diverge, we change our law. Sometimes, we even ignore it.

Despite the “total war” logic of the immigrantophobes, our current immigration laws are unjust. They leave eleven million people—mostly innocent, law abiding and hard working—in limbo, subject to injustice, mistreatment, the destruction of families, and exploitation for others’ economic and political gain. In the worst case, they threaten a Stalin-like mass deportation of people who have lived here for years or decades, built their lives here, and raised their families here.

All the President has said he will do is give the best of these limbo dwellers temporary status, until our dysfunctional Congress can make up its collective mind to do right. As the President said last night, all Congress has to do to assert its authority and (if it wants) restrict his Executive authority is act. That it has refused to do, at the insistence of a vocal minority.

As for the Republicans, come January they will have a clear majority in both Houses of Congress. For six years, they have done nothing but jeer a good and diligent president and obstruct his every move. If they want to change his temporary plan to fix our cruel and broken immigration system, they have every right, and will have every power, to do so in just two months.

But no Yank worthy of the name, who considers his or her people problem solvers, should support the cruel, impractical and unjust status quo, even for another day. Twenty-eight broken years are enough.

Coda: The Reactionary Party

The more I think about it, the more the GOP victory in the recent midterm elections strikes me as not just extraordinary, but bizarre.

To understand why, you must recall an old and trusty but today much-underused word: “reactionary.” What does it mean? Well, my parents’ generation and my own often used it loosely to describe people who invariably want to march backward.

You know what I mean. They fear change. They fear the future. They are far from smart, creative, thoughtful or helpful. But they are vocal. They live on nostalgia for an imagined golden past. They want to return there even when doing so is self-evidently impossible, and any real attempt to do so would be counterproductive, even harmful. Yet they persist because they cannot conceive of any way to go forward other than to fall back.

All these words, of course, describe today’s Republican party pretty well. But they are not the precise meaning of “reactionary.” The word’s meaning comes from its root, “reaction.” “Reactionaries” are people who do nothing on their own, but simply react to what other people do and, occasionally, to events. They have and offer no solutions. They just jeer, criticize, carp and view with alarm.

Aren’t these things precisely what the GOP has done for the last six years? It has jeered at every solution proposed by the President or the Dems, and even at most proposed by Republicans themselves.

From all appearances, today’s GOP doesn’t want solutions. It just wants power—the power to oppose. It wants to stop the world and get off. But where? It doesn’t say. When I was a kid, that sort of behavior was the earmark of reactionism.

What’s extraordinary is not that the GOP has absolutely no solutions. It doesn’t even propose any. The reasons are not complex. As a party, it has no imagination, no daring, and no creativity. But more important, it’s split within itself.

Immigration, of course, is a case in point. The GOP has never proposed a “solution” to the eleven million undocumented immigrants now living and working among us. It has jeered a lot at so-called “amnesty,” while horribly misusing that word. It’s jeering now at the President’s limited action—a temporary program for people who’ve been here fruitfully, paying taxes and avoiding criminal activity for five years.

The GOP continually hints at deportation, if only to attract the brutal and heartless goons who now seem to comprise its electorate. But it never actually goes there.

Why? Because the party’s adults know that deportation would be costly, disruptive and un-American. More important, the business titans who finance and now run the party need all those intimidated and oppressed “illegals” for cheap labor.

Unlike the Fox-deluded GOP cadres, the titans know that the “illegals” take no jobs away from native-born Americans: they just do jobs (and for wages) that no native-born would take because, however hard conditions may be in their workplaces, they are worse where they came from. Recall the rampant gang murders in Central America that sent tens of thousands of unaccompanied children to bang on our closed doors?

The GOP titans—and, no doubt, even John and Mitch—know that border fences are likewise no solution. There is no fence that cannot be dug under, climbed over, walked, sailed or flown around, or breached. And building one along our entire Southern border would cost far too much and bust their precious budget.

More important, John and Mitch, unlike their deluded partisans, are fully aware that present economic conditions, plus the President’s honest efforts to better control our borders, have cut the flow of illegal entrants to the lowest levels since the seventies. But they continue to paint, falsely, a picture of waves of criminals and terrorists submerging our borders every day.

So what do the GOP leaders actually do? They propose nothing, if only because they can’t agree. They jeer at and deride the President and his solutions. And they threaten to get even nastier and more negative if, God forbid, the President should do anything on his own.

PBS commentator David Brooks buys this line. While agreeing with the President on substance, he laments that the President taking action after 28 years of inaction will make the GOP’s obstinacy even worse. How could it possibly?

Lest you think the GOP’s reactionism is confined to immigration, look at health-insurance reform. From the very beginning of the debate, the GOP jeered at the new law’s “mandates,” which require individuals and businesses to buy health insurance of suffer penalties. I, too, criticized the individual mandates, on political and economic grounds, as early as seven years ago, in one of the most popular essays on this blog. I pointed out that, as the sole rational flaw in the proposed health-insurance reform, mandates would provide a strong foundation for opposition and political attacks. And so they have done.

But now GOP members are suing the President for delaying the mandates, challenging his power to do so. Go figure. Consistency, apparently, doesn’t matter at all to these fools. What matters is having more to jeer and cavil about, while solving nothing. And Fox—the greatest propaganda machine in human history—continues to make hay of this relentless, mindless negativity.

Then there’s Benghazi. A minor headline yesterday noted that the GOP-controlled House committee still beating this dead horse had “cleared” the CIA and military of culpability for the tragedy. The obvious next step is blaming it all, once again, on Hillary. “Solutions” for preventing anything similar from happening again in a still-turbulent Middle East, where IS is weaving its noxious, beheading web? Fuhgeddaboutem!

This is what has become of the so-called Grand Old Party, the party of Lincoln, Teddy, and Ike. It rightly uses only the initials today. The full phrase would be self-evident self-parody.

The wonder is not that this can happen to grown men. The wonder is not that people who claim to devote their lives to public service can make diabolically relentless negativity their credo and their lodestar.

The wonder is not that a serious political party can make threatening to make diabolical obstinacy even worse a serious political riposte to an attempt to solve a real problem that has festered for a generation and a half. We Yanks went behind the looking glass long ago, when we decided to substitute thirty-second “gotcha” ads financed by rich people for serious political debate.

The wonder is not that elected representatives who style themselves the modern (and better!) heirs of Plato, Socrates, Cato and Cicero can so self-evidently act like bullies on a playground, or frat boys getting ready to gang-rape a drunk freshwoman. There are still far too few women in Congress to provide motherly restraint on the child gangs.

The wonder is that, in our much vaunted Information Age, the “free” American public, led around by nose-rings forged by Fox and the rich, could buy this culture of jeering and “no” as American. Aren’t carping, jeering, threatening and repeatedly blocking solutions what Russians are supposed to do?

Footnote: One of the real tragedies of this month’s election was that so many good women lost to reactionary men. How many women do you know who would say, in effect, “if you don’t stop trying to solve this real problem and improve people’s lives, I’m going to stamp my feet even harder and fight you even more”?

Maybe female candidates need to get female campaign advisers. So far, they’ve not had great success trying to duplicate male testosterone-fueled obstinacy and stupidity. Or, in Grimes’ case, abandoning a good and honest leader striving hard to do right (and often succeeding).



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