Adam Kotsko — “Reasonable people disagree.”

About normalization. Donald Trump, who campaigned against Barack Obama's "government by executive order," now wants to use his own executive order to change the US Constitution as if that were "normal."

I’m old enough to remember when we suddenly had a “national conversation” about torture. As soon as the idea of the legitimacy of torture had the slightest toehold in the national discourse, every staged “debate” was oriented toward extorting torture opponents into admitting that there were some circumstances where it was warranted. Hence the infamous “ticking time bomb” scenarios. You see, absolute opposition to torture was an extreme position that couldn’t possibly be right — the truth had to be “somewhere in the middle.” And when the American people repudiated Bush and the Republicans to a degree unprecedented in the last forty years, Mr. Moderation himself decided that it was time to look forward and not backward and didn’t prosecute any of those well-intentioned patriots who let themselves get carried away and wound up doing a few regrettable things. And you have to admit, don’t you, that they kept us safe!

And I’m worried the same thing will happen here — that birthright citizenship will be permanently damaged by the very existence of this sham debate between the constitutional status quo ante of the last century and a half and this new idea that just popped into Trump’s head, both of which are equally legitimate “sides” in the brilliant “debate” that the media will be so proud of themselves for covering so even-handedly.

I am much more concerned about normalizing the view that the President can change the US Constitution unilaterally by executive order. That would, in effect, be the end of the legitimacy of the constitutional and constitutional process, making it what the president says it is. If that is not dictatorship, I don't know what is.

An und für sich

“Reasonable people disagree.”

Adam Kotsko

See also

Now, I do think that the birthright citizenship thing may be a stunt that won’t go anywhere. And I agree with those who say it’s a trap: Trump is trying to get us to debate the idea in order to legitimize it. Even if he can’t actually do it, by introducing the notion, he makes it more viable in people’s minds, thereby increasing the chances that it will someday happen. By entering into an argument about it, we give Trump exactly what he wants….

Current Affairs
Be Careful About Relying On The Constitution

Nathan J. Robinson | Editor of Current Affairs

See also

Reuters
Trump citizenship plan may not conflict with constitution: Pence

U.S. senator [Lindsey Graham] says will offer bill to back Trump birthright citizenship plan

See also

Balkinization
The Invalidity of the Proposed Executive Order on Statutory Grounds

Gerard N. Magliocca | Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law

Also

Truthdig
Trump Falsely Claims Power to End Birthright Citizenship

Jacob Sugarman

See also

Lawfare
The Invisible Caravans
Stephanie Leutert | Director of the Mexico Security Initiative at the University of Texas at Austin

IPA — Attacking Syria “Impeachable”

[Francis] Boyle is professor of international law at the University of Illinois College of Law. He said today: “Any U.S. attack targeting the Syrian government or its forces would clearly violate both U.S. and international law. When Obama was in a similar position in 2013, his advisor Ben Rhodes [see below] has since commented that they turned back largely because they were afraid of impeachment. That fear is well founded. While the prospect of impeaching Trump is thrown around frequently for partisan purposes, on this issue, the constitution is clear: Initiating a war or any such attack without authorization is clearly impeachable.... 

IPA
Attacking Syria “Impeachable”

Sheldon Richardson — That Was Then

"The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." — Candidate Obama, 2008

Before the deep state took over POTUS.

Free Association
That Was Then

Sheldon Richardson

Gaius Publius: IRS is Using NSA Data Too. Who in Town Isn’t?

Summary of the sorry state that has come to pass in the US by trading faux security for liberty and constitutional rights.

Naked Capitalism

Gaius Publius: IRS is Using NSA Data Too. Who in Town Isn’t?

Bruce Bartlett — The Debt Limit Is the Real Fiscal Cliff

There are a host of practical problems any time the president is forced into uncharted constitutional territory, as Lincoln so often was. But when faced with an extortion demand from a political party that no longer feels bound by the historical norms of conduct, the president must be willing to do what has to be done.

The New York Times | Economix
The Debt Limit Is the Real Fiscal Cliff
Bruce Bartlett

Constitutional law professor Jonathan Turley on Obama's statism

TURLEY: Oh, President Obama has created an imperial presidency that would have made Richard Nixon blush. It is unbelievable.

Shannyn Moore: Just A Girl From Homer
John Cusack & Jonathan Turley on Obama’s Constitution
(h/t Lambert Strether at Naked Capitalism

Gerard N. Magliocca — Penny Wise, Euro Foolish

The European Union has one of the world's most dysfunctional constitutions....

A single currency without central fiscal and regulatory institutions, though, is reviving national tensions in Europe. Moreover, the politics of harsh austerity in countries like Greece are the best friend the enemies of democracy could have.

Read it at Balkinization (very short)
Penny Wise, Euro Foolish
Gerard N. Magliocca

Constitutional lawyers get it.

Jack Balkin — The Dangerous Thirteenth Amendment

Sandy Levinson and I have posted our latest article, The Dangerous Thirteenth Amendment, on SSRN. The essay is part of a symposium on the Thirteenth Amendment organized by Alex Tsesis, and will appear in the Columbia Law Review later this year. Here is the abstract:

Read it at Balkinization
The Dangerous Thirteenth Amendment
by Jack Balkin | Knight Professor of Constitutional Law and the First Amendment, Yale Law School

Jack Balkin — Popular Constitutionalism and the 2012 Election

Watch Jack Balkin's keynote address at a conference on "Popular Constitutionalism and the 2012 Election" held at Roger Williams Law School in Bristol, Rhode Island.

Here is his summary:

A few weeks back I gave a keynote address at a conference on "Popular Constitutionalism and the 2012 Election" held at Roger Williams Law School in Bristol, Rhode Island. A video of the talk, which runs about an hour, is posted below. It discusses different theories of popular and democratic constitutionalism, and explains why presidents are so important to constitutional transformation. Drawing on Stephen Skowronek's work, it also analyzes the Obama Presidency as a preemptive presidency. A preemptive president-- examples are Cleveland, Wilson, Nixon and Clinton--is one who is swimming against the tide of the current constitutional regime and the politics of the time. As Skowronek explains, preemptive presidents look "for reconstructive possibilities without clear warrant for breaking cleanly with the past." (The Politics Presidents Make, at p. 44).

Viewing Obama as a preemptive president explains two curious facts about his administration which seem to be in tension with each other and have puzzled many political commentators.

First, Obama has not been on the leading edge of constitutional change, but has largely worked within the parameters of the Reagan regime. As a result, his liberal colleagues have often been very disappointed in him, despite his major accomplishments both in foreign affairs and in domestic policy.

Second, despite his moderate tone and his often stated desire to transcend partisanship, his opponents in the Republican Party have acted as if Obama is engaged in a full-scale constitutional revolution that they believe will subvert the foundations of the American Constitution.

It is a curious fact of preemptive presidents like Nixon or Clinton that although they routinely compromise and take moderate positions that often disappoint members of their own party, their political opponents become ever more outraged at everything they do. This explains how a president like Barack Obama, widely regarded as a sell-out by many liberals, has nevertheless been viewed by his opponents as a secret Muslim, a crypto-radical, and a scheming manipulator (i.e., a "Chicago politician") who is promoting a "secular socialist agenda" that will forever destroy liberty in the United States. Obama's policy of moderation and conciliation--like that of other preemptive presidents--has only succeeded in further radicalizing his opponents, leading to an election that in some respects resembles 1972 or 1996. 

Perhaps Obama will turn out to be a transformative president after all, (think Andrew Jackson's second term). Nevertheless, even if Obama sought to be a transformative president in his second term, it is possible that what Skowronek calls the thickening of political institutions has introduced so many veto points into the system--for example, the Senate and the role of money in elections--and so greatly narrowed the window for genuine change that real transformation may be difficult in our current era.

Read it at Balkinization

The Constitution and the 2012 Election

by Jack Balkin | Knight Professor of Constitutional Law and the First Amendment at Yale Law School