The Biggest Advocates For An Imperial Executive Branch Are Suddenly Freaking Out Over Trump
from the oh,-now-you-get-it dept
For many, many years, we've pointed out why there are problems with an executive branch that is too powerful. As we noted, laws should be designed as if the people you trust the least are in power. Of course, in an era of partisan red team/blue team politics, very few people seem to care or listen. Or, worse, their positions on executive power seem to shift based on whether "their guy" is in power or "the other guy" is in power. But in a situation that would be amusing if it weren't quite so terrifying, some of the biggest advocates for expanded executive power are suddenly freaking out about the very thing they helped bring about now that there's a President Trump.
Ryan Lizza, over at the New Yorker, has a post detailing the ways in which Trump could seize more power following a terrorist attack. And there are lots of ways. That, by itself, may be interesting, but what strikes me as even more interesting is that the people who he quotes are some of the very people who helped create this kind of world where the President has almost unlimited power in certain areas.
First up, he quotes Jack Goldsmith. Goldsmith worked for George W. Bush, and while he's positioned himself as having pushed back against executive branch expansion, while he was there he did sign the Office of Legal Counsel memo that enabled the NSA to basically spy on all Americans' internet usage. That memo included the following:
We conclude that in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of that authority.
And, more recently, Goldsmith has argued that we "need" a more invasive NSA which is crazy.
Yet, now, suddenly he's worried that Trump wants these orders to be struck down so he can blame the courts in the event of any terrorist attack, and then use that to claim more powers:
If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.) Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot—in courts and in Congress—if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.
Yeah, that's why we don't say silly things in OLC memos like "The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of that authority."
Next up in Lizza's piece is John Yoo. Yoo, somewhat famously, seemed to have never met an executive power he couldn't justify... until Trump came to power. Yoo, wrote the Bush adminstration's legal justifications for the CIA's torture program after 9/11. He's also argued that the NSA should be given a pass on the 4th Amendment because it takes too long to get a warrant. To him warrantless surveillance is no big deal.
And yet, now suddenly John Yoo is worried about "executive power run amok"?
As an official in the Justice Department, I followed in Hamilton’s footsteps, advising that President George W. Bush could take vigorous, perhaps extreme, measures to protect the nation after the Sept. 11 attacks, including invading Afghanistan, opening the Guantánamo detention center and conducting military trials and enhanced interrogation of terrorist leaders. Likewise, I supported President Barack Obama when he drew on this source of constitutional power for drone attacks and foreign electronic surveillance.
But even I have grave concerns about Mr. Trump’s uses of presidential power.
During the campaign, Mr. Trump gave little sign that he understood the constitutional roles of the three branches, as when he promised to appoint justices to the Supreme Court who would investigate Hillary Clinton. (Judge Neil M. Gorsuch will not see this as part of his job description.) In his Inaugural Address, Mr. Trump did not acknowledge that his highest responsibility, as demanded by his oath of office, is to “preserve, protect and defend the Constitution.” Instead, he declared his duty to represent the wishes of the people and end “American carnage,” seemingly without any constitutional restraint.
Yoo goes on to point out a bunch of problems with some of Trump's actions (while admitting that others he finds perfectly fine).
While I guess it's kinda nice that Goldsmith and Yoo are finally recognizing that an all-powerful executive branch is problematic, they don't seem to recognize their own role in shaping that view of a uniquely powerful executive branch. It's time to own it, guys.
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Filed Under: abuse of power, donald trump, executive power, jack goldsmith, john yoo, surveillance
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John Yoo... useful idiot
but we already knew that! :(
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Re: John Yoo... useful idiot
A war criminal, John Yoo wrote the Torture Memos declaring that torture is peachy-keen if the President authorizes it. And that it doesn't violate American law if done off-shore. Later...
His latest memo tortures history, starting with his own record regarding executive power.
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Re: Re: John Yoo... useful idiot
I would donate if I could see it in person.
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Re: Re: John Yoo... useful idiot
Thus, he is only a mouthpiece.
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Re: Re: Re: John Yoo... useful idiot
Sure, others did their part. But a mouthpiece would be someone who merely defended the torture. John Yoo played a key role in making it happen.
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Who .... Bannon?
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The reaction will be telling...
We'll see how people react. Will they understand that it's the expansion of government power itself which is bad, because it will eventually be abused, regardless of who's in power when the expansion occurs? Or, will they just criticize the "other team" and/or argue that this is all the more reason that everyone should vote for their side?
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Re: The reaction will be telling...
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Re: Re: The reaction will be telling...
Well, frustration with a polarized, gridlocked Congress is understandable, and selective enforcement is one of the tools in the President's arsenal that exists as a check on the power of Congress. Some executive orders overreach -- ones that, say, have to be immediately enjoined by the courts -- but some are reasonable use of the President's power.
Increasing power to the executive is troubling, but it's part of a long-term trend, and its roots are complex.
Our government is not functioning the way it was intended. Politicians and lobbyists have found its failure modes: the influence of money, gerrymandering, incumbency, automatic filibusters, and the lack of restraint that occurs when a single party controls all three branches.
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Re: Re: The reaction will be telling...
@orbitalinsertion: "never. American politicians in particular believe that the solution to a problem is more of the problem."
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Re: The reaction will be telling...
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Well, at least it is "the liberals" freaking out now.
Now when the trumpeteers decry those freaking out over too much power in Trump's hand as "liberals", for once the label actually fits the target.
It's like a vegan salad in the slaughterhouse, a brief respite before they start butchering language again.
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Re: Well, at least it is "the liberals" freaking out now.
I would suggest that the same goes for libertarians, who tend to be associated with the opposite side of the American political spectrum.
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Re: Well, at least it is "the liberals" freaking out now.
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Re: Re: Well, at least it is "the liberals" freaking out now.
But like many things over time those things change, and what used to be, no longer is.
I am an original liberal, however I am nothing of a liberal by todays standards at all. Bush created the DHS and the Patriot Act... two monolithic things that run absolutely contrary to the conservative principle of "A government that governs least, governs best". The out right 4th amendment breach of privacy occuring every fraction of a second and a population that allows and even welcomes it is very telling of our characters.
Bush has done more damage to the liberty of the people since Woodrow Wilson, and every service member that things fondly of Bush should consider their own selves a traitor. What member of the armed services should like a man that single handedly dishonored every soldier that died to keep America free?
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Re: Re: Re: Well, at least it is "the liberals" freaking out now.
I would certainly argue that the Clintons, Gores, Kerrys, and Obamas of the world aren't really liberals. Neoliberals, sure, but that's an economic term, and means something very different from political liberalism.
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Re: Re: Re: Re: Well, at least it is "the liberals" freaking out now.
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Re: Re: Re: Re: Re: Well, at least it is "the liberals" freaking out now.
Each time we trade the parties in power, people are sharpened by revenge over past administrations... they then get the next bolder, braver entity to visit even more enormities than the previous in retribution. There is not even a single part of government now operating as laid out in the Constitution.
The executive branch uses EO to institute law, which is not a power codified in the constitution.
The legislative branch allows agencies to create law and policy when they never had the power to grant agencies these powers to begin with.
The judiciary has taken to actively lying to juries to keep them ignorant of their duties and have bedded the people they were meant to keep in check by allowing them to lie, deceive, withhold, and/or manufacture evidence against the innocent.
Even the self proclaimed constitutional scholars have corrupted themselves for political expediencies, banking upon the ignorance of the hive mind to keep enlightenment marginalized.
Trump was able to break through much of this because he could not be bought and that appealed to many people because even though he might be a shit stain of a president, the people had a chance to send a big middle finger to the people on capital hill that are completely detached from reality.
Never underestimate a peoples ability to get so fed up over the blatant corruption in government that people will be willing to commit to a scorched earth candidate, because if this keeps up... might as well jump right into the fire and hope a mad dash somewhere will get you some place better than where ever the fuck here is...
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Re: Re: Re: Re: Re: Re: Well, at least it is "the liberals" freaking out now.
.. with a minority of the electorate.
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Re: Re: Re: Re: Well, at least it is "the liberals" freaking out now.
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Re: Re: Re: Re: Well, at least it is "the liberals" freaking out now.
Cuban missile crisis?
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https://www.youtube.com/watch?v=N_skPgxH178
So what's your all excuse? OK for Obama to do it and he did. Where were you all when that was going on? All I heard was Crickets. So for you leftest, the ends justify the means until Ops, Hillary couldn't continue the policy's you all wanted. Maybe you all were dumb enough to think no Republican would get elected ever again? (Not that I think Trump is much of a Republican. We've had a lot of RINO's). Trump has done more for Republicans then these past RINO's so that's something.
The simple fact remains congress over the years has given more and more power away to the President. It's suppose to be that Congress writes the legislation, (Or these days the Lawyers and not them). They don't even bother to read anything. Then the President can either sign it or VETO it. You can't get everything you want. It's the whole point of separation of powers. We haven't had that in many years and it's gotten worse. Obama took it to another level. As you saw in that 3 year old video He kept right on doing what he wanted. That's Obama and somehow that's all OK!!! LOL.
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We worried about that too. You can tell by reading the very first article linked from this one.
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We worried about that too. You can tell by reading the very first article linked from this one.
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We were right here. The site was constantly running stories criticizing the surveillance powers, and we readers were constantly adding our own criticism and snark.
LSD perhaps? You weren't here in reality.
Aaaaaand the effects are kicking in again.
SPIDERS! LOOK AT ALL THE SPIDERS!!!
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Sadly, when your guy does it.... well it was just a hey guys... maybe we should not be doing this, but we trust ya fam... when the other team does it... OMFG GOSH THE MUTHAFUCKING SKY IS BURRNING ALARM ALARM!!! Break out the bibs and binkies because shit is getting real!
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Re: Re: Re:
Bull. The site was regularly sounding the alarm during Obama's term. It didn't just "bring it up."
As both the site owners and us readers keep pointing out, Obama was never "our guy." We were just insufficiently partisan for folks like you.
Since it needs to be spelled out for you: This story is about REPUBLICANS freaking out. Like John Yoo - a Republican official who handed Dubya executive power to turn the country into a torture state, used to torture people just to see IF they had any vague connection to terrorism. And to torture their children in front of them just to be sure.
And who shook his pom-poms for fellow Republican official Jack Goldsmith to enable the NSA to conduct warrantless surveillance of all Americans' internet usage.
These are not "our guys", for whatever mythical "our" you imagine. It's the more statist, Imperial Executive REPUBLICANS. When THEY'RE freaking out, and they didn't when Obama was in office, you honestly can't bring yourself to admit that maybe things are different now?
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Obama used executive orders at a lower rate than any President in over a hundred years. Republicans still kept freaking out over it.
The list of Republican freak-outs over Obama's policies is endless - and usually over Obama merely continuing what was previously Republican policy.
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So what's your all excuse? OK for Obama to do it and he did. Where were you all when that was going on?
We were right here writing about it. Many, many, many times.
All I heard was Crickets.
Then you weren't reading this site.
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Rule by Decree
It's bizarre to me that the POTUS can just declare that the US is going to war, or change immigration law, with no debate from congress/senate.
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Re: Rule by Decree
Only with a very limited scope. As just demonstrated, an executive order can't break the law. Nor can a President use an executive order to refuse to enforce a law. (Unless Congress passes a law that's unconstitutional or breaks other laws.)
A President can delay a new law in whole or in part or make minor corrections in order to better execute it. This is common, and usually upheld by the courts. The one-year delay of the ACA's employer mandate for example.
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Re: Rule by Decree
It's bizarre to me that the POTUS can just declare that the US is going to war, or change immigration law, with no debate from congress/senate.
Technically, POTUS can only engage in war actions for 90 days and only in a case of "Clear and Present Danger". Like so may weasel words, this gets weaseled around. Immigration focus is within the purview of the President - eg; Let's deport homicidal maniacs and not bother with the farm laborer that is otherwise obeying the law and just wants to quietly work.
The sad thing is that the past twenty - forty years of US history shows what a dying power looks like. President Trump isn't going to reverse that trend, he's accelerating it in the name of reversing it. This is what happens when small minds try to solve complex and important problems. They simply smash everything in the frustration of not understanding and being unable to effectively address the issue, when it isn't outright special interest intervention as we see in the case of the FCC.
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Re: Rule by Decree
An EO must still, theoretically at least, conform to the constitution and any laws passed. Otherwise the Judge in Washington state (I think it was) couldn't have suspended the immigration EO.
It's actually more like a Judge making common law, in that it can only exist in the vacuum left by lack of legislation or constitutional coverage. If there is legislation that says "all houses must be painted red", and that legislation is held up as constitutional, the president can't enforce an EO that says that all houses must be blue. Sure, he could issue it, but it wouldn't be legally enforceable.
At least, that's my understanding, usual disclaimers (IANAL, IAN SCOTUS etc.) apply.
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The American Experiment
Experimental Result: No
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Re: The American Experiment
That responsibility is for the Citizens, of whom refuse to take that responsibility.
Every Nation gets the Government it Deserves, because the citizens are responsible for ensuring that their government is wearing the proper shackles and when a citizenry allows that government to take them off and place them on the citizens instead by promising security and safety, well...
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."
Ben Franklin
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Re: Re: The American Experiment
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Re: Re: Re: The American Experiment
It's going to get to a point where we either do drugs and keep being entertained, pull a hostile takeover and burn it all down or step the fuck up and eliminate the deafening voices that are the very essence of filth, greed, obstruction and destruction.
The greater good.. indeed.
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Re: Re: Re: Re: The American Experiment
Many of my activist friends have beliefs that differ quite wildly from mine but we work together on those things we agree with.
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Re: Re: Re: The American Experiment
The "guy" being the idiot who thinks it means the opposite of what the originator meant.
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Re: Re: The American Experiment
When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.
Frederic Bastiat
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Re: The American Experiment
Can god make a rock so big he himself cannot lift it?
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This is why...
Far too many people still do not get it, and while I often disagree with the left leaning tilt of TD, you guys are starting to get it. Not nearly enough but somewhat. I certainly applaud this article TD, but I fear it is too late. This wisdom certainly falls upon ignorant people! They will see it and hear it, but never will they understand it.
This is one of the reasons regulation has to be kept to a minimum, not just because politician A is ready to tyranny civilian B, but because all of this regulation, government involvement in peoples lives institutionalizes them to the point where they are not able to know or even understand how things can possibly be different without the steady hand of government over your lives.
You cannot really even so much as buy a candy bar without some involvement from the government. They do regulate the currencies after all, but people still lash out at anyone that threatens their Stockholm syndromes even a little bit.
“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”
~Thomas Jefferson
A quote that is VERY unfriendly with the pro regulation zealots that infest this place!
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Re: This is why...
No.
As I've said before, I absolutely agree that each President builds on the powers and policies taken on by his predecessor.
But there is nothing normal or natural about what is happening now. Yes, you can absolutely criticize the bad precedents set by Obama and Bush (and Clinton and Reagan and Nixon and Johnson and on down the line). But stop talking about what's been happening these past few weeks as if it were just politics as usual.
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Re: Re: This is why...
Just because things got shaken up from time to time, we were then and still are now heading right down the path George said we would as long as we keep playing these party games. And if you think was has been done now is not natural or normal then you need some history... and in a very bad way. You continue to ignore it at your own peril and your fellow citizens as well.
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Re: This is why...
This is one of the reasons regulation has to be kept to a minimum
Er, have you read Upton Sinclair's the jungle?
Many of the regulations we have are the result of experience steeped in blood. True, there is over reach in places and at times, but for the most part, I like knowing my hamburger doesn't have someone's ground up hand in it. Or his whole body, come to that.
There are many other examples I could point to, but that one seems like a good opener. Again, yes, sometimes regulations are over reaching (example: Electric matches for fireworks. You can get them in other countries, but in the US, it's not so easy unless you make them yourself, which is legal. Wow - I can make my own, unreliable, possibly dangerous ones, but I can't buy them from a known source using best practice? Nuts!)
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Re: Re: This is why...
Some regulations are good and some regulations are bad. That seems like a statement of a very, very obvious fact to me. I don't understand how it's controversial.
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Re: Re: Re: This is why...
That would be because you are too ignorant to know what an absolutist is. Like many others you treat anything 1 centimeter over the line as being to the extreme. You don't have objectivity... not even a small portion of it.
Everyone is moving to the, anyone that does not agree with me even a little bit is an extremist. Keep in mind that the only path after that logic is to cause strife until people have to die over it because you refuse to allow a middle ground.
We have seen it before and time and again over history. There is always a breaking point and people just cannot help themselves.
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Re: This is why...
First, you (and maybe a few others, hard to say with you AC bunch) often argue in favor of absolute free market. When pointing out that a true "free market" always tends towards monopoly (or at best oligopoly) you fall on the sophism of "no true Scotsman": we just need antitrust rules. There goes your "absolute free market".
Next is the simple fact that you basically argue for anarchy, but deny it when confronted. You pretend to be in favor of democracy or capitalism in their purest form, but fail to admit that none of these systems is as absolute as you pretend they are, or that such "pure" systems are not realistic. Reality needs balance and compromise because of human nature. A chaotic mix of greed, altruism, apathy, fanatism (not just the religious kind) and much, much more.
(I'll pass on pointing out the number of strawman arguments and other sophistry you use abundantly.)
I do like contradicting viewpoints when properly argued. Just don't barge in the conversation with misplaced quotes and bad logic and expect to be taken seriously.
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Re: Re: This is why...
It's more like:
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Re: Re: Re: This is why...
/s
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Re: Re: Re: This is why...
there is absolutely no way to have an actual free market, and you are obtusely stupid to believe that I am advocating that. Like I mentioned in other posts... on centimeter in a direction you do not like is treated like warp speed to the end. Stop being stupid and spreading your ignorance to others.
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Nobody here said that all regulations are good. TD is a site where bad laws are criticized and guys laws are praised, everyday, all year long, regardless of which party pushed it forward.
In the end, nobody said getting it right is easy. There is a balance to reach and there is much resistance.
You're acting pretty much like Trump is: pretending there is an easy way to complex problems, and people other than you - enlightened one - are just blind to the truth.
I'm not sure if that's what you truly believe (learn more) or a role your playing (stop trolling), but you really look obnoxious in both cases.
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Re: This is why...
You either have a very selective memory or your implied claim of being a regular reader is somewhat exaggerated... Whenever abuse of copyright is discussed, Techdirt writers and regular commenters are inevitably labeled 'pirates' with no respect for the law. Whenever the disruptive nature of Uber is discussed, we again are a bunch of scofflaws for believing taxis regs should not apply to ride sharing. That does not square with your claim. There are hundreds of stories here criticizing the harm caused by both excessive regulation in some areas and insufficient protection by the law in others. The fact that you refer to (paraphrasing) an 'infestation of pro-regulation zealots' is far more suggestive of zealotry on your part. Most people here are far more broad-minded on the topic of regulation than you clearly are.
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Re: Re: This is why...
Ugh, I really hate this Markdown formatting system. At least make it default instead of having to manually select it every time!
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Let's be clear
Trump may be a danger, but choose your bedfellows wisely.
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Sound of mind, reason, and judgement
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Eh? No mention of "unitary executive"?
Also important is his position on res gestae, but ALL judges claim to respect that. How can you tell which judges will run wild over precedent when promoted to SCOTUS? I know of no way to be sure.
One more thing regarding Gorsuch. They say he's an originalist, but the original authors obviously did NOT intend for their thoughts to be permanent and perfect. They understood that change happens which is why they provide mechanisms to AMEND the Constitution. What? A conservative self-contradiction. Shocked, I'm shocked.
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Politics
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Re: Politics
It's not recognizing that this article's subject isn't a diversion. It's a classic case of what politicians would want to divert people's attention FROM.
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Nothing new here
Caesar was subsequently assassinated to "save" the Republic;
Augustus assumed power in order to stop the chaos.
The rest -- as they say -- is history.
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Re: Nothing new here
We have made lots of progress since then haven't we?
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Interesting Choice of Examples
Remember Obama and his pen and phone, who said he would act unilaterally if Congress wouldn't do what he wanted them to? Plenty of Democrats were just fine with that. The same Democrats who are now having kittens over Trump using that same pen and phone.
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Re: Interesting Choice of Examples
Actually no, I don't remember that. What I remember is Republicans endlessly making that claim. In reality:
President Obama Issued Fewer Executive Orders Than Any President in Over 100 Years
By any standard where your claim is true, it's even more true for Bush II, Bush I, Reagan, Ford, Nixon, etc. etc.
When referring to anything to do with the subject at hand, you're completely out of touch with reality there too. This site and us readers were constantly criticizing Obama on transparency and surveillance issues and more. You're citing a myth to back a different myth.
As for "Why reach all the way back to the Bush Administration", it's because this time it's Bush Administration officials - notable for cheerleading obscene executive overreach - who are freaking out over the level at which Trump is doing it.
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Re: Re: Interesting Choice of Examples
> President in Over 100 Years
It's not the total number that's relevant, it's the content and what they purport to do.
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Re: Re: Re: Interesting Choice of Examples
That lame excuse gets parroted but never justified.
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Re: Re: Re: Re: Interesting Choice of Examples
I would think the explanation would be self-evident to anyone with an IQ above that of a cantaloupe.
An order purporting to usurp another branch of government and assume its powers to the executive is vastly different from an order declaring March 18 to be National Hot Dog Day.
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Re: Re: Interesting Choice of Examples
> Obama on transparency and surveillance issues and more.
> You're citing a myth to back a different myth.
Hardly. It's you who is strawmanning here.
I didn't say, "Plenty of TechDirt authors and commenters were just fine with that. The same TechDirt authors and commenters who are now having kittens over Trump using that same pen and phone."
I said, "Plenty of Democrats were just fine with that. The same Democrats who are now having kittens over Trump using that same pen and phone."
> it's Bush Administration officials - notable for
> cheerleading obscene executive overreach - who are
> freaking out over the level at which Trump is doing it.
And so are plenty of Democrats who had nothing but praise for Obama's "bold moves".
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A: Hw wanted to be a dick-tator.
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