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Delay the Election? Presidents Often Do Things They Can’t Do

August 3, 2020•

Trump Won't Steal the Election, but Your Governor Might | The Nation The stock response to President Donald Trump’s suggestion that the general election might be delayed because voting during a pandemic would involve a record number of mail-in ballots, a format he argues is unreliable and susceptible to fraud, is that he doesn’t have that power.

NBC News is typical: “The president has no power to delay an election.” [Emphasis is mine.]

What the president understands, and most mainstream commentators fail to accept, is that it is easier to ask for forgiveness than to get permission. That goes double when the powers in question are limited by a document that lies in tatters, repeatedly ignored.

Liberal politicians and news outlets point out that the Constitution assigns the scheduling of elections exclusively to Congress. Republicans tepidly (and troublingly) stopped short of denying Trump’s power to push back the big day, while insisting that the election ought to take place on time. “Never in the history of this country, through wars, depressions and the Civil War, have we ever not had a federally scheduled election on time. We will find a way to do that again this November 3^rd,” Senate Majority Leader Mitch McConnell said.

In an era of rampant cynicism it is sweetly naïve and the amusingly charming to see Americans put so much faith into the constitutional checks and balances they learn about in high school civics class. “‘Trump can’t delay the election,’ experts say,” reads a headline in The Washington Post.

Since when has a 221-year-old piece of paper stopped presidents from doing anything?

I think first of war powers. Article 1, Section 8 of the U.S. Constitution clearly states that the right “to declare war” resides exclusively with Congress. Such key founders as George Washington, James Madison, Thomas Jefferson and Alexander Hamilton—men whose right to define original intent can hardly be questioned—believed that presidents could not dispatch troops without legislative approval except in cases of immediate self-defense. Congress signed off on sending soldiers and sailors to the Quasi-War with France in 1798, naval conflicts with the Barbary States of Tripoli and Algiers, and clashes with Native American tribes in the West.

Congress has since abdicated its war-making powers to the executive branch. Congress hasn’t issued a formal declaration since World War II. Yet we have fought countless wars. Presidents have launched military attacks against Korea, Vietnam, Libya, Grenada, Lebanon, Panama, Serbia, Syria, Iraq and Afghanistan. Some of these wars of aggression were legalistically constructed as “police actions” or “peacekeeping missions” under the aegis of the UN. The fact remains, this is not what the drafters of the Constitution intended. And it has never been amended. Presidents do what they want; lawyers twist logic to justify their illegal slaughters.

President Abraham Lincoln earns democracy points for holding the 1864 election during the Civil War. Yet he suspended habeas corpus and ignored a ruling by the chief justice of the U.S. Supreme Court saying that he didn’t have the power to do so. George W. Bush’s Military Commissions Act of 2006 also suspended habeas, for anyone the U.S. government arbitrarily defined as an “enemy combatant.” Until the Supreme Court ruled against him two years later, Congress was complicit with the MCA. Even after the court ruling, the internment facility at Guantánamo Bay remains open; 40 men remain there, not one of whom has ever been charged or tried under basic constitutional standards.

FDR almost certainly didn’t have the constitutional right to send 127,000 Japanese-Americans to internment camps during World War II. Yet he did.

From domestic surveillance by the NSA that violates the agency’s founding charter to asset forfeiture programs that allow the police to seize money and property from people who have never been charged, much less convicted of a crime, Americans live in a society oppressed by a political class that takes no notice of constitutional limits it deems inconvenient.

Does the president have the legal right to delay an election? No.

Does he have the power? Yes, unless We The People refuse to accept it.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of the biography “Political Suicide: The Fight for the Soul of the Democratic Party.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

Authorization for the Use of Farce

February 18, 2015•

Ted Rall

A declining American military empire relies on increasingly flimsy legal justifications to attack foreign countries without provocation. Last year, Obama asserted that the 2001 Congressional Authorization for the Use of Military Force authorized him to launch airstrikes against ISIS in Iraq and Syria, even though the AUMF related to Al Qaeda, an enemy of ISIS. Now Obama wants Congress to give him retroactive authorization, even while claiming he was right last year. Why not go even further to stretch logic?

SYNDICATED COLUMN: America is in Decline. Get Used To It.

May 9, 2014•

Ted Rall

We knew this was coming.

The American Century, after all, was the 20^th.

Things were bound to go downhill.

Like 4^th century Romans and post-World War II Europeans, Americans are beginning to realize that they are no longer citizens of an unrivaled superpower. And they’re kind of freaking out about it.

Using a novel “purchasing power parity” measure, the World Bank estimates that China’s economy will surpass the United States later this year. By per capita GDP — and most useful indices — the U.S. still maintains its lead. Nevertheless, many Americans agree with the thesis of Marxist economist Thomas Piketty’s book “Capital in the Twenty-first Century” thatAmerica’s boom days are behind us, unlikely to be seen again. As The Economist summarizes Piketty: “The middle of the last century was unusual in its growth rates as well as in the distribution of income; the good times most of us see as our due as residents of rich economies were in fact a fleeting anomaly.”

By historical terms, back to normal slogging is a yawner. But humans don’t live in historical terms. We compare where we are now with where we were 10, 20, 30 years ago, and where our parents were. Psychologically if not fiscally, you’re better off never having experienced prosperity than to have had it and lost it. Downward mobility as America’s middle class has experienced it over the last 40 or 50 years — a boom-and-bust cycle featuring shorter expansions and longer, deeper recessions and depressions — is a bummer.

“We’re walking small,” New York Times columnist Frank Bruni wrote on May 3^rd. “And that shift in our gait and our gumption has been palpable for many years, during an unusually sustained period of frustration that has the feel of something more than a temporary dive: a turned corner, the downward arc of a diminished enterprise.”

As Bruni points out, we have good cause for bad ennui: America’s shameful global ranking on education quality (#39), collapsing social mobility (it’s easier to get rich in Old Europe and Canada), and our crumbling infrastructure. China unveils its awesomely cool pressurized bullet train to the Tibetan plateau; when they’re not hours late, our Amtraks derail.

Not that there aren’t upsides. “Less assertiveness could mean less overreach. Less confidence could mean less hubris. And money isn’t everything,” Bruni allows.

Not that the U.S. doesn’t have at least as much money as it used to. Overall, the U.S. is richer. The trouble is, all our loot has gotten aggregated into the claws of too few people. As The Times’ Nicholas Kristof notes in a piece titled “We’re Not No. 1! We’re Not No. 1!”: “Over all, the United States’ economy outperformed France’s between 1975 and 2006. But 99% of the French population actually enjoyed more gains in that period than 99% of the American population. Exclude the top 1%, and the average French citizen did better than the average American.”

Of course, Americans have always worried that America was in decline.

A kind of depression has set in,” Washington Post columnist Richard Cohen wrote in 2011. “We’ve lost our mojo, our groove.”

Jimmy Carter’s 1979 “malaise” speech (which despite our faulty collective memory contains neither the word malaise nor its existential French cousin “ennui”), addressed what he called a “crisis of confidence…the growing doubt about the meaning of our own lives and in the loss of a unity of purpose for our nation.” (And that was before the Iran hostage crisis.)

The Atlantic’s James Fallows (age 64) addressed America’s longstanding we’re-screwed vibe in 2010:

“Through the entirety of my conscious life, America has been on the brink of ruination, or so we have heard, from the launch of Sputnik through whatever is the latest indication of national falling apart or falling behind. Pick a year over the past half-century, and I will supply an indicator of what at the time seemed a major turning point for the worse. The first oil shocks and gas-station lines in peacetime history; the first presidential resignation ever; assassinations and riots; failing schools; failing industries; polarized politics; vulgarized culture; polluted air and water; divisive and inconclusive wars. It all seemed so terrible, during a period defined in retrospect as a time of unquestioned American strength. ‘Through the 1970s, people seemed ready to conclude that the world was coming to an end at the drop of a hat,’ Rick Perlstein, the author of Nixonland, told me. ‘Thomas Jefferson was probably sure the country was going to hell when John Adams supported the Alien and Sedition Acts,’ said Gary Hart, the former Democratic senator and presidential candidate. ‘And Adams was sure it was going to hell when Thomas Jefferson was elected president.'”

Context matters, and it’s smart not to panic.

Unless…

Unless we really are screwed now. The usually-ignored takeaway from The Boy Who Cried Wolf is that there really was a wolf.

In other words, it is entirely possible the events Fallows and Perlstein downplayed — environmental degradation, the military disasters in Vietnam, Iraq and Afghanistan, soaring energy prices and institutionalized political corruption that has gotten so much worse that Nixon now looks like a saint — really were as bad as the worrywarts fretted because, throughout the conscious life of someone Fallows’ age, the U.S. really has been in decline.

Aside from a lot of geopolitical and ecological (metaphorical) birds coming home to roost, the simple truth is that there’s only one world and the U.S. is being forced to share its stuff. Despite a foreign policy centered around disruption and harassment of emerging major regional powers such as China, India, Brazil and Iran, Americans had better get used to a smaller share of power and wealth.

Which isn’t the worst thing. It sucked at the time, but losing their colonial empires is the best thing that ever happened to Europe’s once great powers, both morally and economically. The question for Americans is: What do we do about it? Do we allow our slide into Third Worldism to continue? Or do we scale back the drones and stupid wars, reject the NSA’s Orwellian (and wildly expensive) security nightmare, tax the hell out of the rich, and rebuild the social safety net?

One thing’s for sure: we can’t vote our way out of this problem.

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SYNDICATED COLUMN: Men of Dishonor

January 7, 2013•

Ted Rall

A Congress of 21^st Century Cynics Dodges 19^th Century Rules

People are calling the recently adjourned 112^th Congress “the most dysfunctional ever” and the least productive since the infamous “do-nothing Congress” of the 1940s. There’s lots of blame to go around, but one cause for congressional gridlock has gone unnoticed and unremarked upon: we no longer have a sense of honor.

Back in the late 18th and 19th centuries, when our bicameral legislature and its rules were conceived of by a bunch of land-owning white males, a gentleman’s word was his most precious asset. Integrity and the lack thereof were literally a matter of life and death; consider the matter of Alexander Hamilton and Aaron Burr. As Thomas Jefferson and his de facto wife Sally Hemings could attest, civility was far from guaranteed under this old system. It certainly could have worked better for Charles Sumner, the abolitionist Massachusetts senator who was nearly beaten to death by a proslavery colleague on the floor of the Senate in 1856. (He was avenging what he considered libelous rhetoric against his family.)

Though less-than-perfect, there was a lot to be said for a culture in which a person’s word was his bond, legalistic quibbling was scorned, and a legislator was expected to stake out and defend a principled position, even in the face of political and personal adversity.

It’s hard to imagine the “fiscal cliff” showdown unfolding in the 1800s or even the first half of the 1900s for two simple reasons. First, the general fiscal health of the country would have come ahead of partisanship. Second, and more importantly, members of the two political parties would have stuck to the deal that they struck a decade earlier. When George W. Bush and his Republicans pushed for a set of income tax cuts that primarily benefited the wealthiest Americans in 2001, they argued the standard GOP trickle-down economics talking point that the tax cuts would pay for themselves by stimulating the economy so much that revenues into government coffers would more than make up for the cost. In order to get enough Democratic support for passage, the Republicans agreed to a five-year time period, after which taxes would revert to their Bill Clinton-era levels.

By 2006 there was still no evidence to show that the tax cuts had stimulated the economy. In fact, by many measures, things were worse. The housing bubble was beginning to burst; unemployment and underemployment had increased. If this had been the 19th century, Republican legislators would have acknowledged that their experiment had failed and that would have been that. A gentleman didn’t run away from the facts or his mistakes.

Voters seemed to agree. Unhappy with the invasion of Iraq as well as the state of the economy, Americans returned Democrats to control of Congress in 2006. Republicans had a pretty good idea—the polls were damning—that their unpopular policies were driving them toward a decisive defeat in the midterm elections. For men and women of honor, this would have been a time to reassess and back off.

Nevertheless the GOP jammed through an extension of the 2001 Bush tax cuts for the wealthy months before the midterm election. No honor there.

Here we are nearly 12 years later, and the verdict is in: the Bush tax cuts failed miserably. No doubt about it, it’s absolutely ridiculous that President Obama and the Democrats agreed to extend them for all but the richest one-half of one percent of American income earners. But the debate should never have gotten this far in the first place. Had the Republicans who proposed it in the first place possessed an iota of good old-fashioned 19th-century honor and integrity, this misbegotten legislative abortion would have died in 2006.

Robert’s Rules of Order and other quaint traditions of parliamentary procedure don’t translate to a quibbling little time like ours, when White House lawyers torture widely understood words like “torture” and “soldier” or claim that a US military base in Cuba is in no man’s land, neither in Cuba nor under US control, and that members of both major political parties say anything in order to get their way. Consider, for example, the current push to reform the filibuster, in order to clear the logjam on judicial nominations and other business that used to be considered routine.

The Senate, the only house of Congress that permits a filibuster, draws upon a tradition of principled minority protest that goes back to Cato in ancient Rome. Until the 1970s, filibusters were a rarity, averaging one a year. Senators viewed them as a bit of a nuclear option and only considered deploying a one-man block on debate of a bill a few times during a long political career, to take a stand on an issue where he felt it mattered most. Now the filibuster is not only a daily routine but gets deployed in an automated way so that the Senate has effectively become a body in which nothing gets done without a 60% vote in favor.

Everyone in the Senate understood what filibusters were for. No one abused them. It was a matter of honor.

But honor is too much to ask when even the most basic of all political considerations—ideology and party affiliation—bend like a reed in the winds of change.

Last week the Republican governor of New Jersey and a Republican congressman from Long Island, New York were so incensed by their party’s refusal to approve disaster relief funds for their states after hurricane Sandy that they went public with disparaging remarks about the Republican leadership in Congress. Fair enough. Standing up for your constituents against rank parochial self-interest is what integrity is all about.

On the other hand, the immediate willingness of some so-called liberal and progressive Democrats to welcome Chris Christie—a Tea Party favorite—and Peter King—a notorious nativist and anti-Muslim bigot—into their party’s ranks indicates a willingness to overlook basic principles that would have startled most self-described gentlemen of a century or two ago, much less those who’d entered public service. Back then, of course, the American political party system wasn’t as settled as it is today, so there were mass changes of party affiliation as parties appeared, metastasized and vanished. Still, it wasn’t acceptable behavior to change parties over a minor spat like the hurricane aid or for a party to accept members who didn’t adhere to its principles.

It’s almost enough to make you wish for a duel.

(Ted Rall is the author of “The Book of Obama: How We Went From Hope and Change to the Age of Revolt.” His website is tedrall.com.)

Dynasty

December 31, 2012•

Ted Rall

Some pundits say that the early presidential front-runners for the 2016 campaign are Hillary Rodham Clinton and Jeb Bush. They act like it’s the most exciting thing in the world to go to these familiar familial retreads, but what could possibly be more boring than for a country of 311 million people to resort to the same old same old? We may have had a revolution to throw out the British and the monarchy, but the old tribalist instinct lives on.