Sunday, December 13, 2015


As the Paris Agreement (that seems to be its formal name, not "Agreement on...") was being signed yesterday, big crowds of protesters stood in the Champ-de-Mars chanting:
That's a crappy chant, from the rhyming and especially rhythmic standpoint. I was wondering if it might have been the tweeter's translation of something in French like, "Un, deux, trois degrés/Crim' contre l'humanité!" which would be a lot more stirring, but no evidence that it was—or that anybody actually used this English one, either; only RT incorporated it into a news story. What the demonstration actually did do, using English, was pretty remarkable:
(That's not an aerial photograph but a map, created by 3000 demonstrators at 1200 stations with their cell phones and tablets dispersed around the city.)

Bravi tutti for the protests, in any case. It is important to spread the message that this agreement will not do the job, with its insufficient goals (holding temperature rises to 2 degrees when the ceiling needs to be 1.5) and lack of enforcement mechanisms for some of the main ones. There is a lot more work to do before we get there, and no guarantee that we will.

I, on the other hand, have nothing to offer but praise for the parties that put it together. Of course it's inadequate, but I believe it marks the real transition from talk to action—not exactly the first step but the first step in a direction, the first advance. A lot of great people are out there saluting and saying the things I might be saying, from a joyous D.R. Tucker to a very gloomy Zandar, so I'm just not going to do exactly that (let's say I'm at the moment much more on Tucker's hopeful side, in fact really kind of pumped), but there's one particular argument I'd like to bring out, in my own usual thematic neighborhood of the struggles between good and evil in the persons of Barack Obama and Mitch McConnell and the larger constitutional debate in which it takes place.

Because everybody knows, to begin with, why this agreement lacks specific targets and legal  certain key requirements, and why Zandar thinks it is doomed: not, as some have been telling us for years, because India and China are unwilling to commit themselves, or as others claim, because the developed countries just don't care, but because of the US Senate:
That hybrid legal structure was explicitly designed in response to the political reality in the United States. A deal that would have assigned legal requirements for countries to cut emissions at specific levels would need to go before the United States Senate for ratification. That language would have been dead on arrival in the Republican-controlled Senate, where many members question the established science of human-caused climate change, and still more wish to thwart Mr. Obama’s climate change agenda.
It's just another of those big fucking deals, like the Iran nuclear accord and the recognition of Cuba, that the administration has had to engineer around the obstacle of the Congress rather than, as the Constitution appears to prefer, through it. Alongside pushing the Affordable Care Act through the reconciliation process to make it immune to the filibuster, issuing executive orders to lift the threat of deportation from over the heads of some of our best future citizens, and freeing state governments one waiver at a time from the most odious provisions of "No Child Left Behind" until Congress finally gave up and dumped the whole thing last week in favor of something at least somewhat better (you never heard any Republicans protesting about Obama's dictatorial rule and refusal to execute the law on that one, because it was one of the areas where the law was so bad that even the GOP recognized how bad it was). And, friends, the finesse through which Congress was maneuvered into a process where they would need a supermajority to vote the Trans-Pacific Partnership down and will end up ratifying it by default, because however you feel about TPP that's what it was politically, an end run around a legislature that can do nothing but obstruct.

Is Obama really a dictator?

No, for one thing, because he is more in tune with what the American majority desires than Senator McConnell is, as the Times-CBS poll found just a couple of weeks ago, with two thirds of the public now favoring a treaty of the Paris type, and
Seventy-five percent of Americans polled said that global warming was already having a serious environmental impact or would in the future. Nine in 10 Democrats agreed, compared with 58 percent of Republicans. One-third of Republicans said they believed it would never have much of an impact on the environment.... The poll found broad support for capping power plant emissions. Half of all Americans said they thought the government should take steps to restrict drilling, logging and mining on public lands, compared with 45 percent who opposed such restrictions. Support for limiting mineral extraction on public lands rose to 58 percent among Democrats.
(But alas, as usual, few were willing to pay higher utility prices or gas taxes, so there's that.)

But no, more importantly, because the Constitution is not only not a suicide pact, it is also not a ball and chain: not a set of restraints, as the Republicans like to suggest, for preventing governments from doing things (that's the first 10 amendments tacked on to the document as a rider, certainly important, but not the thing itself), but a set of mechanisms to enable it: to do stuff—
establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty...
Not "We the people of the United States, in order to stop ourselves from interfering with state governments and the property rights of private landowners..."

And what it provides in the separation of powers is not only checks, but also balances; not only ways for one branch to stop another, but also for one branch to weigh in in the absence of another, to compensate for another's failure. I've said this before, and I'll say it again: we're familiar with examples of executive overreach, in the career of Richard Nixon for the most outstanding example, where Congress needed to step up and halt abuses, as it finally did in 1974, but the last 20 years, since the Gingrich revolution, have been a time of terrible congressional underreach, which different presidencies have dealt with in different ways—Clinton acquiescing, Bush-Cheney abusing (in a kind of perfect-storm confluence, some of history's worst Supreme Court justices helped them do it), and Obama working out ways in which the executive can lawfully make up for legislative torpor.

The conventional discussion of the separation of powers is focused on the checks part, inevitably, as it was launched by The Federalist authors, whose mission was to reassure the public that the new Constitution, providing for a central government far more powerful than that of the Articles of Confederation, would not turn into tyranny. So it's not so easy to find a source in The Federalist for worrying about government not being strong enough. But not impossible; for instance in Federalist 37, where Madison draws a dichotomy between the desiderata of governmental energy on the one hand and stability on the other:
Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society.
Stability, he thought, would be the natural contribution of the legislature, with its diffusion of power among many members whose individual arrivals and departures would not radically change the institution as a whole; energy that of the executive entirely dominated by the single personage of the president for his own possibly lengthy term:
The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.
And Hamilton (naturally) specifies in Federalist 70,
THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.... A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. 
And Mr. Jefferson himself, the great advocate of limited government, is quoted in Federalist 48, complaining in resentful all-caps about the lack of balance in the Virginia constitution in terms that suggest he felt his own energies a little frustrated when he was the governor:
that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR.
Ever since Mr. Jefferson became president in his turn and began deploying his energy on things that would have outraged him into speechlessness if the Federalists had tried them, picking a war with the Libyan pirates and buying Louisiana without any prior congressional authorization or warrant in the Constitution, presidents have been using their energy for projects good and evil, sometimes stretching the original text of the Constitution in ways that seem like a kind of magic, as in Lincoln's Emancipation proclamation (in September 1861 he said it was constitutionally impossible, in September 1862 he did it).

But I think we'll see in the end that Obama's presidency has exemplified Publius's theory of presidential energy at its very best, all the way through, and this culminating trickster move of the Paris agreement as the greatest of all. More in a lovely, somewhat gobsmacked note by James Fallows.

Photo by Patrick Kovarik/AFP via Getty Images.

On the presidential-energy topic, Krugman chimes in to note that Obama's executive style is as important a factor in the agreement as China's realization:
It’s true that America can’t take broad-based action on climate without new legislation, and that won’t happen as long as Republicans retain a lock on the House. But President Obama has moved to limit emissions from power plants — a big part of the solution we need — through executive action. And this move has already had the effect of restoring U.S. climate credibility abroad, letting Mr. Obama take a leading role in Paris.
Via commenter TheBrett, Stan Cox and Paul Cox at The New Republic tell us about the approaching disappearance of Miami; it's probably already too late to preserve it as it is, and the alternatives aren't that hopeful either.

No comments:

Post a Comment