Obama

September 18, 2016|Colin Kaepernick, First Amendment, Jeffrey Toobin, Obama, private ordering, Social Norms

Social Norms, Not the Constitution, Should Regulate Protests at Sport Ceremonies

Justice John Marshall Harlan II (image: National Portrait Gallery, Smithsonian Institution)

President Obama weighed in recently on the controversy created by a football player refusing to standing during the playing of the national anthem at the beginning of a game. Colin Kaepernick, a San Francisco 49er’s quarterback, wants to call attention to his view that people of color are oppressed. The President supported him, saying Kaepernick was exercising his constitutional right under the First Amendment. A few days ago Jeffrey Toobin more specifically analogized this issue to a case in which the Supreme Court struck down a law requiring school children to salute the flag, because it violated their beliefs as Jehovah’s Witnesses.

The President’s and Toobin’s comments represent a characteristic bit of Progressive misdirection, failing to distinguish between legal and social norms. It is absolutely correct that the government has no right to penalize Kaepernick for his action. Expressive conduct up to burning the American flag should indeed be immune to criminal penalties. But no government official is threatening Kaepernick with official sanctions, although some politicians are exercising their own First Amendment rights to criticize his behavior.

The real question is whether Kaepernick is right to use the time for the national anthem for protest. A directly related question is whether his team or the NFL should tell him to desist and penalize him if he does not. That is an issue to be decided in light of his contract with his team and his team’s contractual relation to the NFL. It is one of private ordering about which the Constitution has nothing to say.

The optimal content of social norms cannot be decided by First Amendment case law.

June 21, 2016|Cass Sunstein, Delegation, Dictatorship, Obama, Star Wars

Delegation, Unilateral Executive Authority and the Decline of Democracy

by Mike Rappaport|4 Comments

Justice John Marshall Harlan II (image: National Portrait Gallery, Smithsonian Institution)

In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy. While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature. This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.

Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies. According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control. A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”

March 27, 2016|Air travel, Antitrust, Carter, Chuck Schumer, Obama, unions

Chuck Schumer Wants to Raise Your Airfare

by John O. McGinnis|5 Comments

One of the Carter administration’s great achievements was deregulation, and in no sector was the success greater than in the airlines industry. The result was more competition and lower fares that democratized travel. It is a troubling sign of America’s lurch from liberty and free markets that Democratic legislators are trying to re-regulate the airlines and that the Obama administration is dampening competition.

The most egregious offender is Chuck Schumer, the incoming Democratic leader of the Senate (he will be majority leader if the prediction markets are right). He wants to regulate the width and leg room of airline seats. This is hardly a safety issue: the FAA has not expressed concern, and airline travel has never been safer with no fatalities on domestic commercial passenger flights last year.

Airlines already offer more room in first class and economy-plus for additional money. Are consumers not capable of choosing how much leg room they want to pay for? What other decisions does Schumer want to make for us?

December 23, 2015|Constitution, Immigration, Limited Government, Obama, Progressivism

Progressivism Makes Immigrants Unwelcome

by John O. McGinnis|28 Comments

Justice John Marshall Harlan II (image: National Portrait Gallery, Smithsonian Institution)

Last week President Obama gave a speech to newly naturalized citizens at the National Archives. His remarks show why immigration, long rightly praised as an essential part of our heritage, has become a source of ever greater controversy. The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here.

Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents.The President did suggest that one of the “binding forces” for America is “loyalty” to “the documents” that surrounded the new citizens at the Archives. But he never identified these documents by name, quoted any language from them, or explained why they have an enduring claim on our loyalty. In particular, President Obama cited almost none of the liberties protected by the Constitution and nothing of the structure of federalism and separation of powers that protects those liberties.

It is hard to believe this was mere oversight. His administration has notably failed to defend both the structure and rights that are actually in the Constitution.

December 7, 2015|George Washington, Islam, Obama, Religious Freedom, San Bernardino terrorist attack

Obama’s Less Orwellian Terrorism Speech

by Ken Masugi|17 Comments

On the day before the Pearl Harbor anniversary (which he did not reference), President Obama admitted that “Our nation has been at war with terrorists since Al Qaeda killed nearly 3,000 Americans on 9/11,” including horrors that his Administration previously dismissed as workplace violence. While much of what he said seemed to deny the reality of war, the last fourth of the speech raises the key question of what Muslims owe the rest of the world in this time of war.

November 16, 2015|European Union, France, ISIS, Islam, Obama

The Paris Massacre and the European Future: A Conversation with Mark Helprin

by Mark Helprin|8 Comments

PARIS, FRANCE - NOVEMBER 16: A general view of the tributes outside the Le Carillon restaurant, one of the scenes of last friday's terror attacks, on November 16, 2015 (Photo by Christopher Furlong/Getty Images)

Award-winning novelist Mark Helprin is also one of the most significant voices writing on American foreign policy. Liberty Law Talk interviews Mr. Helprin about the recent terrorist attacks in Paris and what they mean for France, the European Union, and the United States.

November 10, 2015|Auto Bailouts, Executive order, Executive Power, Lawless, Obama, Rule of Law, Separation of Powers

Executive Power in the Age of Obama

by David Bernstein|2 Comments

This edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

August 28, 2015|coalitions, Democracy, hegemon, Iran, multilateralism, Obama, pax americana

The Iran Deal and the Weakness of Multilateralism

by John O. McGinnis|4 Comments

Justice John Marshall Harlan II (image: National Portrait Gallery, Smithsonian Institution)

The Obama administration’s best argument for the Iran nuclear deal is also an argument against its general enthusiasm for multilateralism in preserving the international order. If a deal with Iran were not struck soon, it is indeed quite possible that the coalition imposing sanctions on Iran would unravel. And there is no chance that this coalition will ratchet sanctions up to put more pressure on Iran. The coalition may be fraying even more quickly now, as Russia and China fall into financial distress and become more eager to export goods to Iran. Russia in particular supported Iran in its demand to have restrictions on development of ballistic missiles lifted. No prizes for guessing what nation is likely to make money off deals with Iran in that area.

But this line of analysis is also a demonstration of the inherent weakness of international coalitions as an instrument of foreign policy. Nations may come together to purse a joint program, when their interests coincide. But the world is a turbulent place and interests change. And unlike domestic contracts, long term agreements among nations are difficult to police and enforce.

That is the reason that United States would do well to maintain the force and will to act alone.

April 17, 2015|Executive Power, Obama, Presidential Library

Against Presidential Libraries: A Modest Proposal

by Greg Weiner|8 Comments

THE WHITE HOUSE—Declaring his intent to cure the public of its worshipful disposition toward the executive office, and consonant with the Whiggish constitutional modesty on which he campaigned in 2008, President Obama announced that the much-anticipated location of his Presidential Library and Museum will be nowhere.

“Presidential libraries are monuments less to the egos of individual executives, which is bad enough, than to presidential gigantism,” Mr. Obama explained in a statement, which was issued in writing in order to diminish the grandeur an Oval Office setting would otherwise have lent it. “The presidency is a swollen institution that distorts our constitutional system. I consequently will donate my papers to the University of Chicago School of Law, whose faculty I hope will study the constitutional implications of my and other recent presidencies.”

March 11, 2015|Affordable Care Act, Citizens United, exeecutive discretion, Obama, Progressivism

The Dangerous Weakness of Modern Progressivism

by John O. McGinnis|24 Comments

Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order. As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.

But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives. For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care. As I note in the piece:

About