The notion of the legislator as a small-scale Cincinnatus, taking up the reins of power as needed but retiring thereafter to his farm, is an ideal realized by Texas, where it’s ingrained in the constitution, but approximated by many other states. (Only ten states have true, full-time legislatures, though at least in New York, the most effective legislators treat their positions as full-time.) And especially in Texas, it’s proved an unmitigated disaster. Ordinary men and women simply cannot be expected to both manage independent lives, and keep up with the realities of governing large-scale polities in the increasingly complex modern era.

Just so, it’s impractical to expect the legislator’s function to be discharged competently by laymen. That’s the theory of a recent lawsuit against the state of Colorado’s process of budgeting-by-referendum, where, plaintiffs contend, taxpayers seem unwilling to either vote the legislature the money it needs to do its job, or allow cutbacks on state obligations (like the PTA in that Simpsons episode). To no-one’s surprise, the motivating goal of modern Republicanism — to “starve the beast” — just doesn’t work, at least in Colorado.

These distinct problems are bound together by a common solution: better ethics rules, and renewed respect for the work of diligent, professional, educated politicians. Government corruption, and the disproportionate influence of lobbyists, are both true threats to American democracy. But ending the profession of civil service, or trading representative for direct government, are both extreme overreactions, akin to killing a patient to cure their cancer. I’ve had the pleasure to work for several politicians who modeled the values of true civil service, working twenty hour days, eschewing high-dollar contributions, and rigorously enforcing a true separation between the work of government and the work of politics. We need to encourage these kinds of servants, and put them in positions of power where they can make a difference, rather than relegating them to the role of the insurgent reformer.

That process starts with reversing Citizens United‘s narrow view of corruption — where only payments directly to the politician, rather than through intermediaries, evidence regulable misconduct — continues with genuine ethics reform, and ends with an electorate that recognizes and values talent in its elected officials, rather than condemning it as “elitism.”

The concept I use to address some of these questions is “error deflection,” a term borrowed from one of my favorite law school professors. It starts by accepting that we act (always) on the basis of imperfect information, and that, especially with hard decisions, mistakes will often result. (“Bad facts make bad law.”)

Accepting the possibility of error, we change the question from “what should I do?” to, “accepting that I may be wrong, how would I like to be wrong?” Mistakes often have consequences, but they’ll always have different consequences. Choices effect results, in success or in error.

This has the effect of changing a question from one about possibilities, to one about values. For example, many choices are intrinsically about risk: do you preserve the status quo, or try to make it better? Error deflection in these cases is all about you. Do you take chances to build a better world? Or is what you have worth defending, and too valuable to potentially lose?

Others, especially in politics, reduce to questions about worldview. The presumption of innocence is nothing more than a conscious choice to always deflect the risk of error in a verdict towards liberty over safety. If we’re going to be wrong, we’d rather free a murderer than jail Valjean. Similarly, the liberal case in national security chooses to deflect error towards the open society. We’d rather take a 1% risk of a terrorist attack than accept the fact (or, 100% likelihood) of a society that profiles on the basis of race. And we don’t believe the ethical calculus of the presumption of innocence alters just because the magnitudes of risk increase across the board. True, freeing a terrorist is a horrifying prospect; but torturing an innocent man, and keeping him from his family until the “cessation of hostilities” is pretty bad too.

The concept works especially well with murky probabilities. Pretend that anthropogenic global warming is a 50% theory — it’s equally likely, in other words, that mankind is or isn’t affecting the climate. We shouldn’t be paralyzed by indecision, because the question of whether to do something about it, once recast, is easy. A 50% chance of human annihilation is worse than a 50% chance of trying to avoid it and failing, no matter how much it costs Exxon. (This is the case I made a few years ago. I’m just updating it for new readers.)

And, error deflection can be romantic! Should you call the girl? Well, it depends. Would you rather know, or always wonder? (And here’s a song all about error deflection: Fires in France, “Love is Strong.”)

Finally, what about the cases where success is impossible? Well, if you have nothing to lose, you might as well try. Sometimes you have to roll the hard six.

(Photo credit to this person.)

*     *     *     *     *

Recent events in this year’s rapidly closing primary season showed erstwhile Republican frontrunner Newt Gingrich at his level best, creating new campaign themes design to sever, with a surgeon’s precision, a candidate from his independent, middle-class, “real-America” support. The problem: this time, Gingrich’s focus was a fellow Republican, Mitt Romney, and the type of bare-knuckle capitalism he made famous, leading to charges that the fiery speaker was “attacking capitalism” itself. This is an overreaction, but a justified one.

The Gingrich argument — that Romney’s past with the corporate raider firm Bain Capital shows a candidate who’s not just comically out of touch, but in fact made his fortune shuttering the kinds of firms that employ average citizens — is not about capitalism. It’s about Romney’s electability, and the many ways his candidacy fails to resonate with those elements of the 99% that comprise the Republicans’ post-Reagan power base. But it raises deeper questions, and Republicans are right to worry, because the Bain argument appears to show a chink in the larger party’s rhetorical front.

Since the beginning of Obama’s term, Republicans have endeavored to present a unified line of battle when defending corporate interests, large and small alike: that’s why, in the hands of John Boehner and congressional Republicans, the regulation of highly volatile, irresponsibly-traded derivatives becomes an existential threat to the free market, and a danger to small business job creation, when in fact it’s no such thing. The result is a political landscape where one is either entirely for the unregulated free market — with all of its excesses — or by opposing one portion of it, entirely against it.

This line makes sense as long as Republicans stay on one side, and Democrats the other. But Gingrich’s attempt to invoke Bain to damage Romney compromises the Manichean simplicity of their argument. If parts of capitalism are flawed, or work against middle-class interests, maybe other parts need fixing too. And if so, does it still make sense to say that all regulations kill jobs? This is the proverbial flank which, when weakened, compromises the integrity of the entire army. Think of von Kluck’s right flank, turned at the first battle of the Marne, to the ruin of Germany’s greater dreams.*

Of course, the Speaker ultimately reversed himself, and gloriously returned himself to the Republican orthodoxy. But the damage is done, and vigilant Democrats should observe the weakness on Romney’s right. If some Republican voters could be turned by Gingrich in such short order, perhaps they could be turned again in the fall.

* – With apologies for the tortured World War I metaphor. I just finished reading Guns of August, and that book is just great.

How gratifying to see democracy work as well as it has during the SOPA debate. A cadre of lobbyists devise a plan to protect their interests inimical to both the people, and to the larger society; the people fight back; and with alarming alacrity, at a rate comparable to Republicans abandoning Mitt Romney, the lobbyists’ pet representatives jump ship. This is how it’s supposed to work!

For late-comers, the Stop Online Piracy Act is a bill introduced by the lovable Lamar Smith (R-TX), putatively drafted to end commercialized piracy of American intellectual property, especially by overseas actors (like China). This much of the goal is laudable, and drew presidential approval during Obama’s recent State of the Union Address. But SOPA’s mechanism obliterates the safe-harbor provided by the DCMA (the Act that allowed my old firm to successfully defend YouTube’s continued existence, against the assault of Viacom and other content providers), and contemplates a world where content providers may, by simply lodging a protest, see any site that hosts allegedly stolen content shut down without a hearing or chance of reply. Under extreme interpretations of the bill, as originally drafted, this site could be shuttered, in full, on the basis of a copyright complaint about any picture used here without permission. Like the above.

By this late hour, the threat appears at an end, with the Obama administration issuing a thinly-veiled veto threat. But in retrospect, I urge you to look at SOPA as part of a larger narrative, and one liberals (or progressives, if you prefer) blissfully appear to be making some headway. During the darkest depths of the Bush administration, more than a few commentators drew on Ben Franklin’s famous exhortation:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

As a watchword for those worried about the nation’s slow slide into a police state. Freedom, the theory goes, involves risk, but it’s well worth the reward. A free society, which we declare ourselves to be, prefers to allow some chinks in our national security armor rather than to close them all at the price of our liberty of movement, conversation, and discussion.

SOPA presents an identical issue. We’ve come to value the internet as a place for free and unbridled conversation, which knits us closer together and enriches each individual’s cultural experience. The price of that liberty, though, is the continual risk of piracy, and the concomitant loss of profit that entails for content providers. By placing the burden of proof to establish piracy and shut down an offending site on content-owners, the Digital Millennium Copyright Act chose to deflect error towards freedom of expression, rather than airtight protection of intellectual property. SOPA proposed the reverse solution, and failed, to the benefit of all. It’s tempting to view individual skirmishes in the broader political landscape as isolated incidents, but to the extent the defeat of SOPA favors liberty over restraint, it inures to the benefit of the larger society.

Thankfully, President Obama will decline to exercise this authority for the duration of his tenure in the White House (pdf):

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret [the NDAA] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

President Obama’s signing statement lawfully construes the NDAA by building off of the closing subparts of § 1021, which follow:

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities- Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Essentially, President Obama reads subparts (d) and (e) to reduce the entirety of Section 1021 to a tautology: “the law is what the law is.” As commander-in-chief, that’s certainly his prerogative. But because executive authority to detain stems from congressional grant, subparts (d) and (e) arguably actually permit the executive to exercise whatever authority he believes to be lawful. I’m heartened that we can trust President Obama not to claim the maximum authority he’s been given, but equally certain that we cannot so readily expect the same restraint from those members of the loyal opposition currently vying for the seat behind the Resolute desk. If the unthinkable should happen, then, Mr. Obama has in Marian fashion forged a sword that he will not wield, but could, by another’s hand, slay the state all the same. Republicans have always opposed Boumediene v. Bush, the 2008 Supreme Court decision that forbade indefinite detention without trial for war on terror detainees, and required that any such individuals at least retain the right to petition for a writ of habeas corpus. It’s all too easy to imagine a President Romney, on day one, moving swiftly to undercut Boumediene and put the apparatus of detention fully in place. And now, with the NDAA’s enhancements, there’s no indication he’d even need Congress’ help.

If this is a fight that ultimately materializes, though, let’s keep in mind how many allies we actually have. For one, Justice Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), has railed at length against the notion that American citizens may be subject to military process simply on suspicion of terrorism:

Justice O’Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10—11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. [. . . .]

In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U.S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U.S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80—84 (2003); see also Cramer v. United States, 325 U.S. 1 (1945). [. . . .]

There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods.

Though not our normal practice, here I’ve preserved in-line citations to illustrate just how broad and deep the legal opposition to indefinite detention runs, and how easily even a Justice as conservative as Scalia may call it to mind. Absent a true, nationwide suspension of the writ of habeas corpus — which has happened only once in our entire history, and which Congress would never authorize — a six-member majority of the Supreme Court, at least, will not permit the full evils of the NDAA to ever be realized. And that is an encouraging thought.

A quick review. The Constitution confers on the President the right to appoint executive officers while the Congress stands adjourned:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Const., Art. II, § 2, cl. 3. Although Congress stands recessed, Republicans leaders have managed to gavel the chamber to order at regular intervals during the recess, on the theory that each such pro forma session interrupts the recess, thereby preventing any appointments over the legislators’ winter vacation. John Elwood’s brilliant piece — which I strongly recommend — concludes that the Constitution’s framers cared more about true sessions than merely the fabricated appearance of sessions; that Congress remains recessed; and that, therefore, President Obama’s appointment is valid. Elwood hardly stands alone. Bush’s OLC adopted the same position, at least on the op-ed pages of The Washington Post. I expect that, on the merits, Republican legislators (or interest groups) would have a hard time arguing that the pro forma trick amounts to anything other than a slick constitutional run-around. Generally, the Constitution means what it says, and we shouldn’t lightly presume that the framers would’ve simply smiled and nodded at slick little acts of legerdemain like the pro forma session.

Let’s assume for the sake of argument, though, that President Obama has actually done something shocking — aside from standing up for himself, which actually does come as a surprise. Let’s say that any federal judge would agree with Republicans, and hold President Obama’s invalid as outside of the recess appointment power. Surprisingly, this may still not matter.

The reason is, not every right has a remedy; and more to the point, no individual citizen enjoys a “right” to see their government managed effectively. See generally Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) (canvassing authorities). The only remedy to correct an unconstitutional appointment would likely be something like a writ of mandamus, but all such remaining writs incorporate the requirement that the Article III requirement that the petitioner possess “standing” — a discrete, particularized interest in the activity he would like to see performed. Marbury v. Madison, of course, famously involved a mandamus petition, but in that case the petitioner sought to have his appointment reinstated, not to have someone else’s rescinded. If no-one can claim a direct injury from Mr. Cordray’s appointment, no-one may challenge it.

Whatever exception exists may lie in the structure of the Dodd-Frank Act, which itself created the Consumer Financial Protection Bureau. According to other Volokh authors, some of the CFPB’s powers require a validly-appointed chief; if this bears out, Republicans could (theoretically) await some regulatory action from the CFPB that creates a discrete, particularized “injury,” and then sue to enjoin the action on the theory that, without a validly-appointed chief, any of the CFPB’s actions are ultra vires, since the prerequisites to the agency’s statutory authority have not been met.

Such activity may not be forthcoming, though, and by the time it is, most voters will have forgotten the afront. Separately, query whether Republicans actually want to dig in their heels on another issue favored by the 99% — responsible regulation of major financial actors — and give the President license to grandstand about both the wages of Republican obstructionism, and the need for common-sense custodianship of the American economy.

Odds are this is a fight Republicans simply lost. By changing up the play at the last minute, Obama rolled the hard six he needed, resulting in a quick, clean checkmate, and not a penalty flag in sight. And other such game metaphors.

Update: a Facebook friend directs me to Evans v. Stephens, 387 F. 3d 1220 (11th Cir. 2004) (html/pdf slip op.). There, the Court reached the merits of a Recess Appointment Challenge in the context of the recess appointment of an Article III judge. The Court discusses the jurisdictional question in note 1, where they appear to imply that recess appointment challenges, as applied to Article III judges, may be heard at the court’s discretion. Here, too, the suit was brought by litigants before the allegedly-unlawful appointee, who necessarily possess a discrete, particularized interest in the question of what authority (if any) their judge possesses. For these reasons, I don’t view Evans as necessarily foreclosing a standing argument in the non-Article III context. Note, too, that Evans‘ ultimate holding reads the appointment clause quite broadly.

Yesterday’s Times draws an even clearer example — New York City itself — and explains how the heavy-handed government planning that created Manhattan’s iconic grid enabled the city’s rise to preeminence as a global city, the heart of American culture and finance.

In fact, the story runs even deeper: Manhattan’s inexpensive public transit, the subway, is one of the greatest success stories of how eminent domain can be used to take a private creation, turn it back to the public good, and by doing so enable broader private development. The 1940′s squeeze-out by which New York City acquired the Interborough Rapid Transit Company and the Brooklyn-Manhattan Transit Company was justifiably controversial — and the Supreme Court’s eventual resolution of the fare-caps that made the acquisition feasible, tenuous at best — but produced a more affordable, interconnected, and user-friendly system, better capable of enabling urban growth and suburban life. (In fact, if you’ve transferred at Times Square between the 1/2/3 Seventh Avenue Line and the N/Q/R Broadway Line, or used the 7 Flushing Line, you’ve benefited directly from unified city control.) “Big government” creates the conditions for small business to prosper. Per Jed Bartlet (YouTube):

No matter what its failures in the past and in times to come for that matter, government can be a place where people come together and no-one gets left behind. An instrument of good.

This is in fact the foundational theory of government: that we do better together than we would apart. Somehow we’ve forgotten that lesson during our two-year long tea-induced stupor, but it’s time to remember it, and for Obama, to campaign on it. Unity and common purpose have always prevailed in America over selfishness, profit, and oligarchy. And that, fundamentally, is what the 2012 election should be about.