POLITICS JANUARY 25, 2013
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I was all set to go into a swivet about the federal appeals court's decision against President Obama's recess appointments for the National Labor Relations Board (and, by implication, his appointment of Richard Cordray to run the Consumer Financial Protection Bureau). Would it be all right with the D.C. Court of Appeals if we had a functioning government? Apparently not. My outrage over the decision increased when I saw the esteemed judges misspelled the word "loath." If you're going to use a pretentious word like "loath," at least spell it right, for crying out loud. And I felt a migraine coming on as I read this passage, so powerfully reminiscent of Bill Clinton's famous Monicagate assertion, "It depends what the meaning of the word 'is' is":
When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing”(emphasis added)). Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.”
Possessing only the dimmest memory that I'd written about the recess-appointment controversy before, I looked it up to remind myself of the details. Only then did I remember that ... oh dear ... I thought Obama's recess appointments were probably unconstitutional at the time. Reviewing my arguments, and the facts, I find myself persuaded all over again. (For a contrasting view, read my TNR colleague Jon Cohn's defense of the recess appointments.)
The Senate was not technically in recess. It was being kept by mischievous Republicans in a kind of self-induced coma over the Christmas holiday break, expressly to block Obama from making any recess appointments. So Obama basically said, "If it quacks like a recess, it's a recess, so here come my recess appointments." The problem with that approach is that there were comparable periods when the Senate was non-functional but clearly not in recess--say, weekends. Weekends quack like a recess too! Was Obama implicitly giving himself the power to make recess appointments 52 weeks a year? That didn't sound kosher to me. Most troubling of all, nobody seemed able to come up with any persuasive precedents.
I am not a lawyer, but Akhil Reed Amar is, and he shared some of my concerns. We ended up writing a piece together urging Obama to get 51 senators on record saying they didn't have any objection to the method of his recess appointments. It wasn't a perfect solution, but it seemed a reasonable one. Here's the nub of our argument:
First, it would serve to limit the precedent of presidential adventurism in the Cordray affair, by making clear that the President in this case was not really defying or circumventing the Senate, but actually facilitating the preferences of the Senate majority itself. Second, it would be an opportunity for Senators to accept responsibility by actually doing something rather than ducking responsibility by doing nothing at all—which the Senate of late has turned into an art form.
Third, it would be a measured move in the direction of filibuster reform—not across the board, not even in all cases involving appointments, but just in situations involving recess appointments. When Republicans controlled the Senate they loudly threatened to use “the nuclear” option—to destroy certain filibusters by a parliamentary maneouver that required only a simple majority vote of the Senate as a whole. Here, Senate Democrats would be doing the same thing, but on a smaller scale (involving only recess appointments). Such a move might be less likely, marginally, to enrage the other side. Call it a tactical nuke.
That last part makes painful reading in light of yesterday's blown opportunity to achieve filibuster reform. Anyway, the White House ignored us. I bet they're sorry now they did, because I seriously doubt the Supreme Court will throw them a lifesaver.
14 comments
Excellent. It is better to tell the truth about Mohammed Morsi and the Muslim Brotherhood than to pretend that they will modify their basic values, beliefs, and behaviors. Dear readers, you will more likely find this truth in TNR than in any other liberal journal of opinion. Muslims are taught to "play nice" until the balance of power turns in their favor, emulating the tactics of their prophet Mohammed the First. The MB has active front organizations in the United States, notably ISNA (Islamic Society of North America) and CAIR (Council on American Islamic Relations). Morsi's visceral anti-semitism is no surprise. "Pigs and apes" comes from the Koran. It goes all the way back to Mohammed the First's depredations against the Jewish tribes in Arabia in the 7th century. It is simply part of the MB package. The creation of the MB is an Islamic revivalist movement that goes back to the 1920, partly in reaction to Kemal Ataturk's abolition of the Islamic Caliphate in Turkey. See Wikipedia article on the MB for details. The anti-semitism is part and parcel of Islam's fundamental intolerance and endless jihad against all non-believers. Morsi brokered the Hamas-Israel cease fire only because Hamas stood to lose. And Hamas is the Palestine subsidiary of the MB. We have some leverage over the Morsi regime. The country faces economic disaster. It has virtually run out of foreign exchange. Most Egyptians depend on government subsidies of basic necessities. But the Obama administration helped bring the regime into power and is not likely to exercise any meaningful leverage over it. And I wonder how much religious fanatics are moved by their people's suffering, vide Iran. The Morsi regime may use the current economic situation to tighten its power through the control of food distribution.
- amidut
January 25, 2013 at 8:01pm
Good article Mr. Trager. Morsi's smile is the smile of a hyena. What are the chances that the Egyptian people will get rid of the "Muslim Achim? The Us needs to help those forces in Egypt that genuinely democratic, if such forces even exist. A selfish corrupt dictator is far better than a principled group of killers.
- arnon1
January 25, 2013 at 8:03pm
US military assistance to Egypt has risen from 1.3 billion in fy 2009 to 1.4 for 2013. Without the military, the country would lose a massive amount of prestige (the armed forces are the strongest in Africa and the second strongest in the ME after Israel) and suffer damage to the economy into the bargain, given the dense intermeshing of the two. Whether he likes it or not, unless Egypt finds a new sugar-daddy, the US is needed to keep the shop open. A real, as opposed to a rhetorical, attempt to dismantle Camp David and the treaty with Israel would lead to the loss of this central support for the country, and nobody knows where that would lead. Morsi and the MB are caught in a bind.
- ironyroad
January 25, 2013 at 8:37pm
"A real, as opposed to a rhetorical, attempt to dismantle Camp David and the treaty with Israel would lead to the loss of this central support for the country, and nobody knows where that would lead. Morsi and the MB are caught in a bind." Yes and the bind is called modernity. The Muslim Achim (brothers in Hebrew) Have been facing contradiction which they can't handle since their founding. They want to get back to the 6th and 7th century yet have to live in the 21st C. Their existence would make great fiction, even science fiction: someone discovers a Time machine which sends back people to the century of their choice. Then those of love the contradictions of modern life could go about solving them with a song in one's head and not give in to the hatred of the Brothers be they Muslim or be they others.
- arnon1
January 25, 2013 at 10:07pm
Good piece. I think this advice will be ignored by our State Department and Administration. They want something to show as progress and will give them any money to keep up appearances. I think MB Should be isolated and left to fail in all areas. Cut off the aid, support other countries in their defenses against Egypt and watch them regress into Syrian chaos.
- CRS9TNR
January 25, 2013 at 10:47pm
You are right on target. I live in Jerusalem and know that your observations are on point. What I cannot understand is Liberals toleration of Islams intolerance of real democracy.
- sabbaduvein
January 26, 2013 at 2:30pm
Because honoring the treaty (in practical terms) saves them from the consequences of the loss of US military assistance and the weakening of the one distinctive pillar of the Egyptian state that is observable to outsiders. They can spew poison for popular consumption, and they know that probably won't have practical consequences, but they also know that there's a line they can't cross without danger. Who else could replace America? China is about the only serious contender and I doubt that China wants to get involved in the ME at such a high and potentially dangerous level. Also, the "shell" of the 21st century leader may turn out to be an important shell to keep around. Again, I'm no expert, and I'd be interested in anyone's alternative scenario as to how this plays out.
- ironyroad
January 26, 2013 at 2:31pm
"Because honoring the treaty (in practical terms) saves them from the consequences of the loss of US military assistance and the weakening of the one distinctive pillar of the Egyptian state that is observable to outsiders. They can spew poison for popular consumption, and they know that probably won't have practical consequences, but they also know that there's a line they can't cross without danger." So peace for the Egyptians has a price and it's not an end in itself. What is really going on is that Morsi has changed a peace treaty to a Hudna (a temporary truce) and is asking to be reworded for it. What I find disheartening here is that Morsi antisemitism is a racist type of bigotry. He has a hard time meeting with and being civil to Jews. Erdogan's antisemitism is the antisemitism of self interest. He is courting the Arab States and believes that expressing anger towards Israel will allow him to claim that he is part of the Arab world.
- arnon1
January 26, 2013 at 3:49pm
malahat, just for clarification: by "practical consequences" of poison I meant consequences for the US-Egyptian relationship in its current beneficial form, not consequences (which I agree there are, of course) within Egyptian society itself; by "potentially dangerous level" I meant that China seems to avoid major commitments in environments where their profile would be sharply visible on the global stage and where it could become difficult to avoid diplomatic and political engagement (at least more than they like) in an unpredictable situation -- Egpyt would be all of that and more; I'm doubtful that any country apart from China, Russia, or Saudi Arabia could replace the level of US aid Egypt receives, although I guess a mix of countries is a possibility. Arnon: yes, I think the personal animosity toward Jews shown by Morsi is the joker in the pack -- it's clearly not tactical posturing, but something more volatile.
- ironyroad
January 26, 2013 at 4:04pm
If they go down this route what westerner in his right mind would either invest or go on a tour of Egypt? My next door neighbors are from Egypt, the grandmother barely speaks a word of English and has Egyptian satellite TV on all the time. They kind of remind me of Mexican novellas that you see on Mexican TV; loud, flashy, with a lot of emotional women and scheming men. I simply can't imagine Egyptians are going to willingly go back to the dark ages. I think Morsi will find over time that taking hold of power in Egypt is like catching a tiger by the tail, you might be able to tame one but you will never control one and in an instant it can rip your head off.
- blackton
January 26, 2013 at 4:14pm
As an Islamist he must have absorbed his antisemitism with his religious training. So I wouldn't be surprised by what you wrote, Malahat.
- arnon1
January 26, 2013 at 4:57pm
That was really good. I sure wish that the President would emphasize more the inherent right that the people have to pray as they wish (or not to pray, in the u.s at least - it may be too much to state that on the world stage) over something being "democratic" simply because people vote. I gotta say- i think the President completely misplayed the "arab spring" and i cringe when i reread his speech in cairo. Words should have been given of caution, less of encouragement. Erdogen? His entire career has been based on curbing that Antarek secularization of Turkey. I do think even Erdogen got the wind taken out of his sails when he met with the Brotherhood in egypt and they declined his overtures. The brotherhood is much more militant that anything that would be acceptable in turkey. There were hard anti-israel feelings building in turkey over gaza, but i think the Syrian civil war and the 50,000 dead there has softened things a bit. Not even erdogen is shameless enough to blame that one on israel.
- bob1239
January 26, 2013 at 7:37pm
I don't think the Arab Spring was ours to play or not to play -- we had supported democratic reform for decades, under every administration, while dealing with the rulers as they were (Egypt friend, Libya enemy). We never claimed we wanted that to continue.
- ironyroad
January 26, 2013 at 8:46pm
As a signal of the new TNR direction and focus, the comment thread from the Morsi/Egypt thread has been attached to Tim Noah's piece on the recess appointments decision. Way to go!
- ironyroad
January 27, 2013 at 4:32pm