Presidential authority as the commander in chief of the armed forces, under Article II of the US Constitution, is real and important, but it surely isn't all that President Donald Trump needs it to be for this war to be even remotely lawful. To review six familiar points: (1) The US Constitutional reserves to Congress exclusively the right to "declare" war; (2) Probably because the framers considered the point too obvious to require stating, there is no specific statement that undeclared wars are illegal wars; (3) The courts have refused to make that inference leaving a gap in the whole notion of the checking of war powers, but (4) Congress, overriding President Nixon's veto, filled that gap with the War Powers Act of 1973, and (5) if Congress does not approve President Trump's action, then under the War Powers Act, the President will have to end hostilities within 60 days of starting them -- which would be by the end of April, but (6) nobody expects President T...
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A lot of hopes have been invested for decades now in the idea of a "Tobin tax." The idea, first formulated by Yale University economist James Tobin in 1972, is that a government can tax short-term, round trip transactions from one currency to another. That is, speculators might transfer their US dollars into UK pounds and, shortly thereafter, their pounds back into US dollars. That would be done, and is done, as a way of profiting off expected changes in the relative value of the currencies concerned: it is betting. Tobin's view was that such betting is destabilizing and it ought to be discouraged: thus the tax. Further, Tobin worked up this proposal soon after Nixon had destroyed the older Bretton Woods system. There was a great deal of concern over what would replace it, how the financial world was going to get along if every currency simply floats against any other, with no agreed up measuring/reference point. The idea seemed to die a quiet death. It was resur...
With no small content I read Mr. Hobbes’ book De Cive , and his Leviathan , about the rights of sovereignty, which no man, that I know hath so amply and judiciously handled. I consent with him about the rights of exercising government, but I cannot agree to his means of acquiring it. It may seem strange that I should praise his building and yet mislike his foundation, but so it is. That was Robert Filmer, the divine-right-of-kings theorist, apologist for the whims of the Stuart family. I take the quote from Yves Charles Zarka's book about Hobbes, newly translated into English by James Griffith. Griffith also contributes an introduction, stressing that though Leo Strauss is "to some degree an ally of Zarka's in the argument against historicism, they are not involved in identical projects." I have a full review of Zarka's book in a forthcoming issue of The Federal Lawyer. I go into more particulars about the Filmer/Hobbes contrast there, as ...
So Ginsburg has spoken out against Donald Trump. "I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our President." Yes, this is very unusual. By way of comparison, Justices Douglas and/or Black, not to mention Chief Justice Warren, spoke in no such way about Richard Nixon in 1968. Surely they despised him, and saw his then-still-hypothetical presidency as a threat to their judicial legacy. But they retained what is considered proper judicial decorum in such matters. For a sober, professorial, discussion of why Ginsburg was in the wrong and why the defenses of her comments are also "mostly wrong," go to PrawfsBlawg. But of course this is the Justice widely known as the "Notorious RBG." If she's not going to be the court's badass, who will be?
Bloomberg Business recently ran a retrospective by Andrea Wong about what she calls the “petrodollar deal” between the US and Saudi Arabia, a deal she says was created in the summer of 1974, when treasury Secretary William Simon and an assistant, Gerry Parsky, went on a diplomatic mission for the Nixon administration. Simon passed away in 2000. Parsky, though, is still alive, and Wong seems to have been working in large part from Parsky’s recollections. Simon “understood how to sell the Saudis on the idea that America was the safest place to park their petrodollars.” A “strikingly simply” barter developed. The US would buy Saudi oil, and would provide the Sauds with military and diplomatic cover. In return, the Saudis would buy lots of US Treasury bonds, becoming a huge part of the financing of the ballooning US debt. There was also a diplomatic cable sent from King Faisal to the US Treasury months later, dealing with one small but critical a...
The well-known journalist, true-crime author, and provocateur Joe McGinniss died Monday, March 9th at the age of 71. Here's an obit with the basics, from the grey lady. McGinniss first found a spot in the public spotlight with The Selling of the President , his account of Richard Nixon's 1968 campaign. As the title suggested, the book played against the series of Theodore White campaign chronicles. As my contribution to the marking of McGinniss' death I'll share one detail from the book that I personally find amusing. McGinniss is telling the story of Nixon's men trying to round up a six-person panel of 'ordinary people' to ask Nixon questions on a television show, a political infomercial if you will. McGinniss himself made a suggestion, "I suggested a psychiatrist I knew: the head of a group that brought Vietnamese children wounded in the war to the United States for treatment and artificial limbs." Roger Ailes (the executive producer o...
This term, largely because of the bang-up way it ended, has seen the beginnings of right-wing resentment against Chief Justice John Roberts. There is even an "impeach Roberts" meme bubbling about in some quarters! It will go nowhere, unless some extra-judicial scandal is brewing I haven't heard about, but it is an intriguing symptom. In the Warren Court era, there were "Impeach Earl Warren" bumper stickers and billboards apenty. Never got traction. There was also a push to impeach Justice Douglas, who was a good bit to the left of Warren by anyone's metric, and that did get a little traction. That arose from Douglas extra-judicial activities. He wrote an artticle for "Avant Garde," a magazine published by Ralph Ginzburg, at a time when litigation concerning alleged libel by Ginzberg, litigation that had constitutional significance and would eventually reach SCOTUS, was underway in the federal courts. The content of the actua...