The Role of Uncle Sam

David Brooks NY Times

From the dawn of the republic, the federal government has played a vital role in American economic life. Government promoted industrial development in the 18th century, transportation in the 19th, communications in the 20th and biotechnology today.

But the federal role has historically been sharply limited. The man who initiated that role, Alexander Hamilton, was a nationalist. His primary goal was to enhance national power and eminence, not to make individuals rich or equal.

This version of economic nationalism meant that he and the people who followed in his path — the Whigs, the early Republicans and the early progressives — focused on long-term structural development, not on providing jobs right now. They had their sights on the horizon, building the infrastructure, education and research facilities required for future greatness. This nationalism also led generations of leaders to assume that there is a rough harmony of interests between capital and labor. People in this tradition reject efforts to divide the country between haves and have-nots.

Finally, this nationalism meant that policy emphasized dynamism, and opportunity more than security, equality and comfort. While European governments in the 19th and early 20th centuries focused on protecting producers and workers, the U.S. government focused more on innovation and education.

Because of these priorities, and these restrictions on the federal role, the government could be energetic without ever becoming gigantic. Through the 19th century, the federal government consumed about 4 percent of the national gross domestic product in peacetime. Even through the New Deal, it consumed less than 10 percent.

Meanwhile, America prospered.

But this Hamiltonian approach has been largely abandoned. The abandonment came in three phases. First, the progressive era. The progressives were right to increase regulations to protect workers and consumers. But the late progressives had excessive faith in the power of government planners to rationalize national life. This was antithetical to the Hamiltonian tradition, which was much more skeptical about how much we can know and much more respectful toward the complexity of the world.

Second, the New Deal. Franklin Roosevelt was right to energetically respond to the Depression. But the New Deal’s dictum — that people don’t eat in the long run; they eat every day — was eventually corrosive. Politicians since have paid less attention to long-term structures and more to how many jobs they “create” in a specific month. Americans have been corrupted by the allure of debt, sacrificing future development for the sake of present spending and tax cuts.

Third, the Great Society. Lyndon Johnson was right to use government to do more to protect Americans from the vicissitudes of capitalism. But he made a series of open-ended promises, especially on health care. He tried to bind voters to the Democratic Party with a web of middle-class subsidies.

In each case, a good impulse was taken to excess. A government that was energetic and limited was turned into one that is omnidirectional and fiscally unsustainable. A government that was trusted and oriented around long-term visions is now distrusted because it tries to pander to the voters’ every momentary desire. A government that devoted its resources toward future innovation and development now devotes its resources to health care for the middle-class elderly.

I’ve taken this tour through history because we are having a big debate about what government’s role should be, so, of course, we are having a debate about what government’s role has been. Two of the country’s most provocative writers have taken stabs at describing that history — imperfectly in my view — in order to point a way forward.

In his illuminating new book, “Land of Promise,” the political historian Michael Lind celebrates the Hamiltonian tradition, but, in his telling, Hamiltonianism segues into something that looks like modern liberalism. But the Hamiltonian tradition differs from liberalism in fundamental ways.

In his engrossing new book, “Our Divided Political Heart,” E.J. Dionne, my NPR pundit partner, argues that the Hamiltonian and Jacksonian traditions formed part of a balanced consensus, which has been destroyed by the radical individualists of today’s Republican Party. But that balanced governing philosophy was destroyed gradually over the 20th century, before the Tea Party was even in utero. As government excessively overreached, Republicans became excessively antigovernment.

We’re not going back to the 19th-century governing philosophy of Hamilton, Clay and Lincoln. But that tradition offers guidance. The question is not whether government is inherently good or evil, but what government does.

Does government encourage long-term innovation or leave behind long-term debt for short-term expenditure? Does government nurture an enterprising citizenry, or a secure but less energetic one?

If the U.S. doesn’t modernize its governing institutions, the nation will stagnate. The ghost of Hamilton will be displeased.

Obama and Gay Rights

Editor's note: Frida Ghitis is a world affairs columnist for The Miami Herald and World Politics Review. A former CNN producer/correspondent, she is the author of "The End of Revolution: A Changing World in the Age of Live Television."
(CNN) -- After two years of claiming that his views were "evolving," President Obama said on Wednesday that he has finally reached a conclusion and supports same-sex marriage. Obama's public endorsement is an important step in the right direction, but it does not undo the fact that he has a mixed record on gay rights.
This defining moment came only after the issue was pushed to the headlines by Vice President Joe Biden's open support for same-sex couples.
When Obama first took office, many had high hopes. After all, six months in, a press release was sent out entitled: "President Obama Announces Benefits for Gay Partners of Federal Employees." It seemed like a momentous occasion, the fulfillment of a promise by the candidate who had vowed to become a "fierce advocate" of gay rights.

Instead, what followed was mostly a charade, and a very successful one.
At the time, almost everyone thought Obama was extending equal rights to same-sex employees in the government. Why wouldn't they? There was a White House ceremony, seen around the world, that showed the president signing some sort of impressive-sounding document regarding federal benefits and nondiscrimination.
Give the Obama team credit for a successful political maneuver. But the discrimination against same-sex federal employees did not end. Not even close.
Follow @CNNOpinion on Twitter and Facebook.com/cnnopinion
Benefits for gay federal employees are much closer to those of their heterosexual colleagues, if they are posted abroad. So if you want the federal government to stop discriminating, you basically have to leave the country.
It also turned out that federal employees cannot sign up their partners -- even their legally married ones -- for benefits as basic as health insurance. Obama's highly touted memorandum gives partners of same-sex federal employees the ability to apply for private long-term care insurance, with no discernible advantage over what they would find elsewhere.
Let's be clear -- it's not Obama's fault that Congress passed and Bill Clinton signed the 1996 Defense of Marriage Act, which says marriage refers only to heterosexual couples. Obama has said that he opposes the legislation.
But the Obama administration has gone out of its way to create an impression that it has done much more for gay people than it actually has. In fact, Obama's Justice Department actively defended the anti-gay Defense of Marriage Act in court until last year. When Karen Golinski, a federal lawyer, managed a rare victory in obtaining coverage by the Federal Employees Health Benefits Program for the woman she legally married, the Obama administration made sure the benefits would not extend to anyone else.
In light of these contradictory -- almost deceptive -- moves by his administration, it's no wonder that Obama has found himself swirling in turbulence over his wobbly position on gay rights.
Comparatively, discrimination on employee benefits is not controversial and it requires much less ammunition than fighting against other forms of discrimination. Americans reject it decisively. Several years ago, two-thirds of Americans told Gallup that "gay and lesbian domestic partners should have access to health insurance and other employee benefits." And that was before support for gay marriage became broader.
The president can only gain from taking a strong position against same-sex discrimination. It will energize his base and help him look like an advocate for fairness and not just another cynical politician. The people who strongly oppose equality in employee benefits would never vote for him anyway. Everyone else would probably find it refreshing to see a politician march out of the morass of ambiguity and double-talk and for once take a clear strong position.
Ironically, Obama has mocked Mitt Romney for flip-flopping on gay rights. In fact, both of them have tried to play all sides of this issue, coldly calculating political advantage.
Some have thought that Obama's personal experience as the African-American son of a mixed-race couple would make him into a fierce advocate of equality and justice. Instead, many in the gay community have derided him for his "cowardice."
But the president's record hasn't been all misses. He achieved an important victory when he had don't ask, don't tell overturned. But until he seemed to have no choice, he remained extraordinarily quiet on gay issues, even though he continues to collect millions of dollars in donations from gay activists.
He has spoken out only when absolutely necessary and sometimes not even then. Gay leaders implored Obama to lend support before a close vote on gay rights in Maine. They blamed him partly for the loss. On the recent North Carolina constitutional amendment banning same-sex marriage, Obama issued a statement against the amendment through a spokesman, and declared that he was disappointed only after it passed.
Obama's claims that he cares about equality for gays have not seemed sincere. Now that he has emphatically stated that same-sex marriage should be legal, he ought to make passage of the Employment Non-Discrimination Act a priority. He should take a stand personally, not through press releases and spokesmen, against discrimination. He should support the bill that calls for the repeal of the Defense of Marriage Act. Now he should follow up his landmark statement with actions that will have practical, not just symbolic impact
As country after country removes barriers to equality for gay couples, the United States should take a lesson. Same-sex marriage, one of the highest hurdles, is already recognized legally in places as different as Canada, Argentina, Israel, South Africa and Spain, among others. Nondiscrimination in employee benefits is far more common, not just for reasons of fairness but also because it allows organizations to compete for the best talent.
The decision to at long last finish the evolution and come out in support of gay marriage is a major step. But, Mr. President, when it comes to fighting discrimination, there are principles to defend, promises to keep and miles to go before you sleep.

Dissident's Plight

BEIJING — Chen Guangcheng, the blind Chinese dissident who fled house arrest last month in a dramatic escape from security forces, left the American Embassy in Beijing on Wednesday after securing assurances from the Chinese government that he would remain safe, American officials said in the first account of his diplomatically tense six-day stay there.

The agreement appeared to defuse a diplomatic standoff that threatened to overshadow strategic talks between the United States and China under way in Beijing this week.

But the future safety of Mr. Chen — and his reasons for agreeing to leave American protection — immediately came under scrutiny, setting off a controversy among human rights activists, some of whom questioned whether Mr. Chen acted under duress. Meanwhile, the Chinese government continued to demand an apology from the United States for interfering in the case.

American officials described details of the negotiations between both governments and Mr. Chen as well as a telephone call to the dissident from Secretary of State Hillary Rodham Clinton after he left the embassy compound for treatment at a medical facility here. They said the agreement involved significant concessions from the Chinese and was the best that could be achieved given Mr. Chen’s desire to stay in China rather than to seek asylum abroad.

Mr. Chen will be permitted to study law at a major university in the city of Tianjin, far away from his home village where he had been subject to harassment and intimidation for many years, they said.

Mrs. Clinton said in a statement that she was “pleased that we were able to facilitate Chen Guangcheng’s stay and departure from the U.S. Embassy in a way that reflected his choices and our values. I was glad to have the chance to speak with him today and to congratulate him on being reunited with his wife and children.”

“Mr. Chen has a number of understandings with the Chinese government about his future, including the opportunity to pursue higher education in a safe environment,” she added. “Making these commitments a reality is the next crucial task.”

But in a telephone interview with The Associated Press from his hospital bed late Wednesday evening, Mr. Chen said American officials told him while he was under American protection that Chinese authorities had threatened to beat his wife to death unless Mr. Chen left the American embassy, and that Mr. Chen therefore left under coercion.

An American official denied that account. The official said Mr. Chen was told that his wife, Yuan Weijing, who had been brought to Beijing by the Chinese authorities while Mr. Chen was in the American Embassy, would not be allowed to remain in the capital unless Mr. Chen left the embassy to see her. She would be sent back to Mr. Chen’s home village in Shandong, where no one could guarantee her safety.

“At no time did any U.S. official speak to Chen about physical or legal threats to his wife and children. Nor did Chinese officials make any such threats to us,” Victoria Nuland, the State Department spokesperson, said in an e-mailed statement. “U.S. interlocutors did make clear that if Chen elected to stay in the Embassy, Chinese officials had indicated to us that his family would be returned to Shandong, and they would lose their opportunity to negotiate for reunification.”

Mr. Chen told another media organization, Britain’s Channel 4 television station, in a subsequent phone interview that he hoped to leave China and seek safety abroad, expressing regret that he no longer had American protection. American officials also quickly disputed that account.

“At no point during his time in the Embassy did Chen ever request political asylum in the U.S.,” Ms. Nuland said. “At every opportunity, he expressed his desire to stay in China, reunify with his family, continue his education and work for reform in his country. All our diplomacy was directed at putting him in the best possible position to achieve his objectives.”

As word of Mr. Chen’s account filtered out on China’s version of Twitter, the community of human rights activists inside China and supporters in the United States questioned the United States’ decision to allow Mr. Chen to leave under a degree of pressure.

Bob Fu, president of the United States-based ChinaAid association, which has defended Mr. Chen and other human rights activists in China, issued a statement saying he feared that the “U.S. side has abandoned Mr. Chen” and that his departure from the embassy was not necessarily voluntary.

“We are deeply concerned about this sad development if the reports about Chen’s involuntary departure (from the U.S. Embassy) are true,” Mr. Fu said. He added that he did understand Mr. Chen’s desire to remain in China rather than to seek asylum in the United States or another foreign country.

The dispute over the terms of his departure erupted even as American official provided fresh details of the six-day saga involving Mr. Chen and his efforts to seek American protection, as well as the negotiations over his status inside China going forward. Mr. Chen entered the American Embassy late last week with the assistance of American officials because of the “exceptional circumstances, including his disabilities,” a senior American official told American reporters traveling with Mrs. Clinton. “On humanitarian grounds we assisted him and allowed him to remain on a temporary basis,” the official said.

Mr. Chen, a lawyer who had campaigned against forced abortions and sterilizations conducted as part of China’s policy of limiting families to one child, suffered an injury to his foot during his escape from his house in Shandong province last week and was walking with the help of a crutch, the official said.

During his time at the embassy, Mr. Chen adhered to his position that he was not seeking asylum in the United States but wanted to stay with his family in China as a free person, said the official, who was involved in the three-way negotiations that involved Mr. Chen and officials from the United States and China.

“He expressed his hope to stay in China and he never varied from that,” a second senior official involved in the negotiations, who briefed reporters, said.

On Wednesday afternoon, after Mrs. Clinton’s arrival about six hours earlier, and after the Chinese had made commitments to guarantee his safety, the American Ambassador, Gary Locke, asked Mr. Chen if he was ready to leave the embassy.

Mr. Chen, who speaks broken English, said in Chinese: “Let’s go,” one of the two American officials said.

As he left the embassy for the hospital, Mrs. Clinton phoned Mr. Chen in what the two American officials said was an emotional conversation since both Mrs. Clinton and Mr. Chen knew of each other but had never met.

At the end of the talk, according to one of the officials, Mr. Chen told Mrs. Clinton, also in broken English: “I would like to kiss you.”

The officials said that during the negotiations inside the embassy, Mr. Chen at times would sit with the two main negotiators, holding each one of them by the hand. The two negotiators were the State Department’s legal adviser, Harold Koh, and the assistant secretary of State for East Asian and Pacific affairs, Kurt M. Campbell.

After driving a short distance to the Chaoyang Hospital from the embassy compound, Mr. Chen was reunited with his wife, Yuan Weijing, who was wearing a gray shirt decorated with a rainbow across the front, and their two children, whom he had not seen in some time, the officials said. Ms. Yuan had traveled from Shandong Province the previous day.

He was being treated by American and Chinese doctors, the officials said. Mr. Chen had agreed that his medical records be given to the Chinese doctors, they said.

Under the arrangement agreed to by the United States, China and Mr. Chen, he would be relocated to a different part of China from his hometown in Shandong, where he was under house arrest and where he says his family had been physically attacked, the officials said. The officials said he had been given a choice of seven locations agreed upon by the Chinese and Americans and that Mr. Chen had chosen Tianjin, an industrial port city east of Beijing.

Mr. Chen would be allowed to enroll at a university to pursue his law studies, his self-taught profession, the senior official said. “He will have several university options,” one of the officials said.

The American officials said they were satisfied with the pledges from the Chinese authorities that Mr. Chen, 40, would be allowed to live a normal life. The Chinese promised to report any actions against him, they said.

Precisely what the Chinese government offered as a way of protection for Mr. Chen was not immediately clear. The American officials went out of their way to praise the Chinese negotiators. They described them as working “intensely and with humanity.”

According to the American officials, negotiations began on April 26. The American negotiators met with their Chinese counterparts, led by the vice foreign minister, Cui Tiankai, at the Chinese Foreign Ministry, and relayed the issues to Mr. Chen at the American Embassy. Mr. Chen never met directly with the Chinese officials, the American officials said.

There appeared to be no similar case in which a high-profile Chinese dissident had sought protection at the American Embassy and then returned to Chinese custody. American human rights officials and lawyers have often questioned whether the Chinese would provide the protection they promised in such a situation.

“This was not easy for the Chinese government,” one of the senior American officials said.

Only hours earlier, the crisis that has swirled around Mr. Chen seemed far from abating as China accused the United States of interfering in its affairs and demanded an apology from Washington for taking a Chinese citizen into the embassy “via abnormal means.”

“The Chinese side is strongly dissatisfied with the move,” the official Xinhua news agency quoted a Foreign Ministry spokesman, Liu Weimin, as saying. “The U.S. Embassy in Beijing has the obligation to observe relevant international laws and Chinese laws and it should not do anything irrelevant to its function.”

The two American officials declined to address the demand that the United States apologize for sheltering Mr. Chen and that the United States investigate the circumstance in which the embassy was used in what the Chinese said was an “abnormal” way.

“Our actions were lawful,” one of the American officials said.

Mrs. Clinton is in China for two days of scheduled talks with senior Chinese officials on economic and security matters.

She landed in Beijing shortly before 9 a.m. Wednesday local time. Whether she took charge of negotiations was not immediately clear but Mr. Chen was admitted to the medical facility some hours after her arrival. Mr. Chen’s case will continue to overshadow the talks, known as the Strategic and Economic Dialogue, which are scheduled to begin Thursday.

But movement toward a resolution may ease some of the pressure. The Obama administration and the Chinese government have been anxious to ensure the case did not dominate the talks, which will cover subjects from North Korea to the global economy.

The last Chinese dissident to take refuge in an American diplomatic compound was Fang Lizhi, an astrophysicist, who walked into the embassy in Beijing with his wife in 1989, the day after the People’s Liberation Army crushed pro-democracy protests in Tiananmen Square.

The Chinese government regards foreign criticism of its human rights policies and practices as undue interference in its internal affairs, and it will almost certainly use the occasion of the talks to drive that point home, diplomats in Beijing said.

Shift on Executive Power Lets Obama Bypass Rivals WASHINGTON — One Saturday last fall, President Obama interrupted a White House strategy meeting to raise an issue not on the agenda. He declared, aides recalled, that the administration needed to more aggressively use executive power to govern in the face of Congressional obstructionism. “We had been attempting to highlight the inability of Congress to do anything,” recalled William M. Daley, who was the White House chief of staff at the time. “The president expressed frustration, saying we have got to scour everything and push the envelope in finding things we can do on our own.” For Mr. Obama, that meeting was a turning point. As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals. But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more. Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.” Aides say many more such moves are coming. Not just a short-term shift in governing style and a re-election strategy, Mr. Obama’s increasingly assertive use of executive action could foreshadow pitched battles over the separation of powers in his second term, should he win and Republicans consolidate their power in Congress. Many conservatives have denounced Mr. Obama’s new approach. But William G. Howell, a University of Chicago political science professor and author of “Power Without Persuasion: The Politics of Direct Presidential Action,” said Mr. Obama’s use of executive power to advance domestic policies that could not pass Congress was not new historically. Still, he said, because of Mr. Obama’s past as a critic of executive unilateralism, his transformation is remarkable. “What is surprising is that he is coming around to responding to the incentives that are built into the institution of the presidency,” Mr. Howell said. “Even someone who has studied the Constitution and holds it in high regard — he, too, is going to exercise these unilateral powers because his long-term legacy and his standing in the polls crucially depend upon action.” Mr. Obama has issued signing statements claiming a right to bypass a handful of constraints — rejecting as unconstitutional Congress’s attempt to prevent him from having White House “czars” on certain issues, for example. But for the most part, Mr. Obama’s increased unilateralism in domestic policy has relied on a different form of executive power than the sort that had led to heated debates during his predecessor’s administration: Mr. Bush’s frequent assertion of a right to override statutes on matters like surveillance and torture. “Obama’s not saying he has the right to defy a Congressional statute,” said Richard H. Pildes, a New York University law professor. “But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago.” The Obama administration started down this path soon after Republicans took over the House of Representatives last year. In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. Previously, the administration had urged lawmakers to repeal it, but had defended their right to enact it. In the following months, the administration increased efforts to curb greenhouse gas emissions through environmental regulations, gave states waivers from federal mandates if they agreed to education overhauls, and refocused deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children. Each step substituted for a faltered legislative proposal. But those moves were isolated and cut against the administration’s broader political messaging strategy at the time: that Mr. Obama was trying to reach across the aisle to get things done. It was only after the summer, when negotiations over a deficit reduction deal broke down and House Republicans nearly failed to raise the nation’s borrowing limit, that Mr. Obama fully shifted course. Page 2 of 2 First, he proposed a jobs package and gave speeches urging lawmakers to “pass this bill” — knowing they would not. A few weeks later, at the policy and campaign strategy meeting in the White House’s Roosevelt Room, the president told aides that highlighting Congressional gridlock was not enough. “He wanted to continue down the path of being bold with Congress and flexing our muscle a little bit, and showing a contrast to the American people of a Congress that was completely stuck,” said Nancy-Ann DeParle, a deputy chief of staff assigned to lead the effort to come up with ideas. Ms. DeParle met twice a week with members of the domestic policy council to brainstorm. She met with cabinet secretaries in the fall, and again in February with their chiefs of staff. No one opposed doing more; the challenge was coming up with workable ideas, aides said. The focus, said Dan Pfeiffer, the White House communications director, was “what we could do on our own to help the economy in areas Congress was failing to act,” so the list was not necessarily the highest priority actions, but instead steps that did not require legislation. Republican lawmakers watched warily. One of Mr. Obama’s first “We Can’t Wait” announcements was the moving up of plans to ease terms on student loans. After Republican complaints that the executive branch had no authority to change the timing, it appeared to back off. The sharpest legal criticism, however, came in January after Mr. Obama bypassed the Senate confirmation process to install four officials using his recess appointment powers, even though House Republicans had been forcing the Senate to hold “pro forma” sessions through its winter break to block such appointments. Mr. Obama declared the sessions a sham, saying the Senate was really in the midst of a lengthy recess. His appointments are facing a legal challenge, and some liberals and many conservatives have warned that he set a dangerous precedent. Senator Harry Reid of Nevada, the Senate Democratic leader, who essentially invented the pro forma session tactic late in Mr. Bush’s presidency, has not objected, however. Senate aides said Mr. Reid had told the White House that he would not oppose such appointments based on a memorandum from his counsel, Serena Hoy. She concluded that the longer the tactic went unchallenged, the harder it would be for any president to make recess appointments — a significant shift in the historic balance of power between the branches. The White House counsel, Kathryn Ruemmler, said the Obama administration’s legal team had begun examining the issue in early 2011 — including an internal Bush administration memo criticizing the notion that such sessions could block a president’s recess powers — and “seriously considered” making some appointments during Congress’s August break. But Mr. Obama decided to move ahead in January 2012, including installing Richard Cordray to head the new consumer financial protection bureau, after Senate Republicans blocked a confirmation vote. “I refuse to take ‘no’ for an answer,” Mr. Obama declared, beneath a “We Can’t Wait” banner. “When Congress refuses to act and — as a result — hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.” The unilateralist strategy carries political risks. Mr. Obama cannot blame the Republicans when he adopts policies that liberals oppose, like when he overruled the Environmental Protection Agency’s proposal to strengthen antismog rules or decided not to sign an order banning discrimination by federal contractors based on sexual orientation. The approach also exposes Mr. Obama to accusations that he is concentrating too much power in the White House. Earlier this year, Senator Charles E. Grassley, Republican of Iowa, delivered a series of floor speeches accusing Mr. Obama of acting “more and more like a king that the Constitution was designed to replace” and imploring colleagues of both parties to push back against his “power grabs.” But Democratic lawmakers have been largely quiet; many of them accuse Republicans of engaging in an unprecedented level of obstructionism and say that Mr. Obama has to do what he can to make the government work. The pattern adds to a bipartisan history in which lawmakers from presidents’ own parties have tended not to object to invocations of executive power. For their part, Republicans appear to have largely acquiesced. Mr. Grassley said in an interview that his colleagues were reluctant to block even more bills and nominations in response to Mr. Obama’s “chutzpah,” lest they play into his effort to portray them as making Congress dysfunctional. “Some of the most conservative people in our caucus would adamantly disagree with what Obama did on recess appointments, but they said it’s not a winner for us,” he said. Mr. Obama’s new approach puts him in the company of his recent predecessors. Mr. Bush, for example, failed to persuade Congress to pass a bill allowing religiously affiliated groups to receive taxpayer grants — and then issued an executive order making the change. President Bill Clinton increased White House involvement in agency rule making, using regulations and executive orders to show that he was getting things done despite opposition from a Republican Congress on matters like land conservation, gun control, tobacco advertising and treaties. (He was assisted by a White House lawyer, Elena Kagan, who later won tenure at Harvard based on scholarship analyzing such efforts and who is now on the Supreme Court.) And both the Reagan and George Bush administrations increased their control over executive agencies to advance a deregulatory agenda, despite opposition from Democratic lawmakers, while also developing legal theories and tactics to increase executive power, like issuing signing statements more frequently. The bipartisan history of executive aggrandizement in recent decades complicates Republican criticism. In February, two conservative advocacy groups — Crossroads GPS and the American Action Network — sponsored a symposium to discuss what they called “the unprecedented expansion of executive power during the past three years.” It reached an awkward moment during a talk with a former attorney general, Edwin Meese III, and a former White House counsel, C. Boyden Gray. “It’s kind of ironic you have Boyden and me here because when we were with the executive branch, we were probably the principal proponents of executive power under President Reagan and then President George H. W. Bush,” Mr. Meese said, quickly adding that the presidential prerogatives they sought to protect, unlike Mr. Obama’s, were valid. But Jack L. Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel during the George W. Bush administration, said the Obama administration’s pattern reflects how presidents usually behave, especially during divided government, and appears aggressive only in comparison to Mr. Obama’s having been “really skittish for the first two years” about executive power. “This is what presidents do,” Mr. Goldsmith said. “It’s taken Obama two years to get there, but this has happened throughout history. You can’t be in that office with all its enormous responsibilities — when things don’t happen, you get blamed for it — and not exercise all the powers that have accrued to it over time.”

Why George Zimmerman, Trayvon Martin’s killer, hasn’t been prosecuted. By Emily Bazelon SLATE

Slate.com

 

Why Trayvon Martin’s Killer Remains Free

Florida’s self-defense laws have left Florida safe for no one—except those who shoot first.

The story of Trayvon Martin’s death is heartbreaking. If you have missed the facts: The 17-year-old, who is black, was walking to a friend’s home in a gated community in Sanford, Fla., when a neighborhood-watch volunteer*, 28-year-old George Zimmerman, spotted him. Zimmerman, whose father says identifies as Hispanic, called the cops to report a suspicious person. They told him not to follow. “They always get away,” Zimmerman told dispatch in a 911 call released Friday, and he kept tracking Martin. Zimmerman had a gun. Martin was carrying only an ice tea and the Skittles he’d just bought at the store. The two had a struggle that no one saw. Hearing shots, neighbors called 911. In one call that’s hard to listen to, a woman anxiously says she can hear someone calling for help while in the background, a terrified, wailing voice pleads, "No! No!"

Zimmerman shot and killed Martin, but he said he did so in self-defense. The shocker of this case so far is that the Sanford police say they don’t have enough evidence to dispute Zimmerman’s claim and arrest him. Martin’s mother told the Today show Monday morning that her son was killed “because of the color of his skin,” and his parents want the FBI to investigate. With these facts, you can see why. UPDATE, March 20, 2012: On Monday evening, the Justice Department announced it will investigate Martin's killing.

How did we get to a place where Zimmerman’s claim of self-defense, which seems barely plausible, could prevent his arrest? The answer starts with the “Stand Your Ground” law that Florida passed in 2005. The idea was to give people who think they are being threatened the right to use force: They can protect themselves without first trying to retreat. The history behind that controversial idea is actually about gender, not race. It involves the intersection between the fight against domestic violence and the agenda of the National Rifle Association.

Let’s back up, with the help of Jeannie Suk, a Harvard law professor who wrote an article in 2008 that I’ll rely on for the next few paragraphs. In the 17^th century, English common law held that people whose lives were threatened in a public place could use deadly force to defend themselves only after retreating as far as possible. It was up to the king and his men to keep the peace, and everyone else was supposed to stand aside. There was only one exception: If someone broke into your house, you could kill him without retreating.

This is called the Castle Doctrine, after the old saying that a man’s house is his castle. It makes intuitive sense—a limited exception to the duty to retreat that leaves the rule in place. But when the Castle Doctrine made its way to America, Suk says, some courts expanded it. Now someone under attack could "repel force by force" if he was attacked "in a place where he has a right to be." That’s how the Supreme Court put it in 1895. This is amazingly called the “true man” doctrine, from a line in an 1876 case: “A true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.”

Not all the states adopted the true man doctrine. And 100 years later, courts and legislatures faced a new problem: What to do with women who said they were victims of domestic violence and had killed their husbands to save themselves? Did you have a right not to retreat if the person coming after you lived under the same roof? At first, the answer was no, to the fury of feminists. Then in 1999, the Florida Supreme Court said a woman who shot and killed her husband during a violent fight at home could successfully call on the Castle Doctrine to argue self-defense. “It is now widely recognized that domestic violence attacks are often repeated over time, and escape from the home is rarely possible without the threat of great personal violence or death,” the court wrote.

Suk calls this revision of the true-man rule to encompass domestic violence transformative, and you can see why. The new rules made for more shooting and less retreating. And they set the stage for Florida to ditch the duty to retreat entirely, which the legislature did in passing the nation’s first Stand Your Ground law in 2005.

Florida’s new law did three things: It further loosened the restrictions on using deadly force at home. It scrapped the duty to retreat in public places. And it gave people who use self-defense civil and criminal immunity. Pushing for these changes, NRA President Marion Hammer focused on women and their need to protect themselves. “You can’t expect a victim to wait and ask, ‘Excuse me, Mr. Criminal, are you going to rape me and kill me, or are you just going to beat me up and steal my television?” she said.

Prosecutors opposed the Stand Your Ground law, and they still complain about it. "It is an abomination," former Broward County Prosecutor David Frankel told the Sun Sentinel in January. "The ultimate intent might be good, but in practice, people take the opportunity to shoot first and say later they had a justification. It almost gives them a free pass to shoot." The quote comes from a story about a former sheriff’s deputy, Maury Hernandez, who killed an unarmed homeless man in a Haagen-Dazs shop on a Saturday afternoon. Hernandez, who was with his children, said the man aggressively asked for money and then tried to assault him. Witnesses said Hernandez warned the man several times before taking out his gun and firing multiple times. The police said they wouldn’t charge Hernandez for the shooting because he claimed he was under attack.

It’s that decision not to press charges that makes Stand Your Ground laws, which a bunch of other states have adopted, a crazy departure from the past. It’s one thing to raise self-defense at trial. It’s another to have what the Florida Supreme Court calls “true immunity.” True immunity, the court said, means a trial judge can dismiss a prosecution, based on a Stand Your Ground assertion, before trial begins.

At least there’s supposed to be a hearing before that happens, at which the defendant has the burden of proof. And yet as the Hernandez and Martin’s case shows, Stand Your Ground laws often lead prosecutors to decide against so much as bringing charges. According to the Sun Sentinel, “In case after case during the past six years, Floridians who shot and killed unarmed opponents have not been prosecuted.”

Now the death of Trayvon Martin is the latest in that line. Maybe this is the kind of case that is so sad and so tinged with racism that Florida will think hard about the very scary place where their self-defense laws have taken them. Maybe.

*Correction, March 20, 2012: This article originally stated that George Zimmerman is white, but his father says he identifies as Hispanic.

U.S. Department of Justice, FBI and FDLE to probe Trayvon Martin killing

By Frances Robles Miami Herald

Courtesy Martin family / Family photo

Trayvon Martin, 17, of Miami Gardens, shot and killed by a neighborhood watch voluntter Feb. 26 in Sanford, an Orlando suburb.

The U.S. Department of Justice’s Civil Rights Division and the FBI will investigate the killing of Miami Gardens teenager Trayvon Martin by a neighborhood watch volunteer, the department announced late Monday.

The announcement coincided with a statement from Florida Gov. Rick Scott asking the Florida Department of Law Enforcement to offer “appropriate resources” in the case.

The federal and state agencies are intervening in what attorneys call a botched investigation into the killing of the Michael Krop Senior High School student, who was killed Feb. 26 in Sanford, a town of 55,000 just north of Orlando. Trayvon, 17, on suspension from school, was staying at his father’s girlfriend’s house when he walked to a nearby a 7-Eleven store to buy candy and iced tea.

George Zimmerman, 28, a neighborhood watch volunteer with a long history of calling in everything from open garage doors to “suspicious characters,” called police to say he had spotted someone who looked drugged, was walking too slowly in the rain, and appeared to be looking at people’s houses. Zimmerman sounded alarmed because the stranger had his hand in his waistband and held something in his other hand.

The unarmed teen was carrying Skittles and a can of Arizona iced tea.

Zimmerman said he had stepped out of his truck to check the name of the street he was on when Trayvon attacked him from behind as he walked back to his truck, police said. He said he feared for his life and fired the semiautomatic handgun he was licensed to carry because he feared for his life.

“The department will conduct a thorough and independent review of all of the evidence and take appropriate action at the conclusion of the investigation,” the Justice Department said in a statement. “The department also is providing assistance to and cooperating with the state officials in their investigation into the incident. With all federal civil rights crimes, the government must prove beyond a reasonable doubt that a person acted intentionally and with the specific intent to do something which the law forbids — the highest level of intent in criminal law.

“Negligence, recklessness, mistakes and accidents are not prosecutable under the federal criminal civil rights laws.”

From the start, Trayvon’s family accused Sanford police of molding the investigation to fit Zimmerman’s account. Several witnesses said they heard cries that sounded like a boy wailing — howling silenced by the crack of gunfire — and were shocked to hear police later portray the cries as Zimmerman’s. One witness said police ignored her repeated phone calls.

The police chief was accused of telling lies big and small in ways that shielded Zimmerman. The family hired attorneys who helped devise a national campaign to demand a federal investigation.

Members of Congress and prominent black clergy members joined the chorus for a federal probe. At a rally outside the Sanford courthouse Monday, students called for Zimmerman’s arrest.

Police Chief Bill Lee told The Miami Herald that he was comfortable that his investigators were fair and thorough.

“I can say very confidently we would welcome any outside entity that wants to come look at what we did,” Lee said last week. “They are welcome to come here and look at it. We have not done anything but conduct a fair and complete investigation.”

He dismissed accusations of irregularities and insisted that investigators found no probable cause to arrest Zimmerman because there was no evidence to disprove his version of events.

The U.S. Community Relations Service will be in Sanford this week to meet with civil rights leaders, community leaders and local law enforcement officials to address tension in the community, the Justice Department announcement said.

Read more here: http://www.miamiherald.com/2012/03/19/v-print/2703029/us-department-of-justice-fbi-and.html#storylink=cpy

Analysis: From Israel, urgings of caution on Iran

By DAN PERRY, Associated Press

JERUSALEM (AP) — Israeli Prime Minister Benjamin Netanyahu faces significant pressure at home to coordinate with the United States in any attack against Iran's nuclear program, despite his public insistence on Israel's right to act alone.

With the clock ticking toward a monumental decision by Netanyahu, it largely could come down to whether he trusts President Barack Obama — a man with whom Netanyahu, often jokingly referred to as an "Israeli Republican," seems markedly ill at ease.

The signs from this week's summit at the White House are not particularly good. The two allies agree that Iran is on a path that could eventually lead to the production of a nuclear weapon, but part ways over urgency: Netanyahu seems impatient with Obama's statements that tough new economic sanctions imposed by the West be given time to work.

But if he decides to strike alone, Netanyahu would be courting an astounding array of consequences.

An Israeli attack would likely unleash retaliation, in the form of Iranian missiles as well as rocket attacks by Iranian proxies Hezbollah and Hamas on its northern and southern borders. Especially daunting is the prospect of sustained missile strikes on Tel Aviv, a bustling business and entertainment capital whose populace is psychologically ill-prepared for a homefront war.

It also would likely cause oil prices to skyrocket at a time when the global economy is already struggling — risking a new recession for which Israel would absorb much if not most of the blame.

Iran is widely expected to attack American targets in response to any Israeli strike — a scenario that could directly influence the outcome of this fall's U.S. presidential election. Israel can hardly contemplate a genuine rift with its closest ally; without U.S. diplomatic, military and financial support the Jewish state would be dangerously exposed on multiple fronts.

Few here would dispute that a nuclear-armed Iran is an existential threat, mindful of Iranian calls for Israel's destruction, support for anti-Israel militant groups, and development of sophisticated missiles capable of striking Israel. Concerns were only heightened by a recent report by the U.N. nuclear agency that found Iran continues to enrich uranium — a key step toward developing a bomb — and by Iran's movement of enrichment facilities deep underground.

But after months of strikingly open debate about an Israeli military strike, awareness of the colossal risks involved appears to be sinking in. A growing number of senior figures have raised concerns that Israel should not act alone.

Two former Israeli military chiefs on Tuesday lambasted Netanyahu's heated rhetoric about Iran's nuclear ambitions, saying the threats of an imminent military strike are actually weakening Israel.

"This is not a Jewish problem," Shaul Mofaz, who headed the military from 1998 to 2002 and later served as defense minister, told Israel Radio. "It is a strategic problem facing the whole world."

Mofaz, who was born in Iran and moved to Israel as a child, said Israel "is not a ghetto" and that despite its military might must fully coordinate with the U.S. on any plan to strike Iran.

Both Mofaz, who is now an opposition lawmaker, and Dan Halutz, the military chief from 2005 to 2007, criticized Netanyahu for invoking Holocaust imagery in describing the threat posed by a nuclear-armed Iran.

Halutz said the Holocaust references diminished the actual genocide of 6 million Jews at the hands of the Nazis and blew the Iranian threat out of proportion.

"We are not kings of the world," Halutz said. "We should remember who we are."

Both echoed a similar warning issued recently by Meir Dagan, the former head of Israel's Mossad intelligence agency.

A recent poll suggested the public, normally hawkish on security matters, agrees. The survey, conducted by the Israeli Dahaf agency for the University of Maryland, said 81 percent of Israelis oppose a solo attack on Iran. At the same time, it said two-thirds of Israelis would support military action if coordinated with Washington.

The poll, released last week, questioned 500 Israelis and had a margin of error of 4.3 percentage points.

At their high-stakes White House meeting on Monday, Obama appeared to make little headway with Netanyahu. In public comments both before and after the meeting, the Israeli leader repeatedly stressed his country's right to act alone.

"Israel must always have the ability to defend itself, by itself, against any threat," he declared to raucous applause in a speech to the pro-Israel lobby group AIPAC — the same forum that heard Obama, a day before, decry "too much loose talk of war."

At a news conference Tuesday, Obama implied that Israeli pressure for urgent action was not supported by the facts, saying that a decision was not necessary within the next weeks or months.

Efforts to find a diplomatic solution appeared to get a boost Tuesday when world powers agreed to a new round of talks with Tehran, and Iran gave permission for inspectors to visit a site suspected of secret atomic work.

While stressing his preference for a diplomatic solution, Obama said Monday that the U.S. would strike Iran if necessary and pointedly rejected suggestions that "containment" of a nuclear-armed Iran would be acceptable. The tough talk was clearly aimed at convincing Netanyahu that the United States accepts that the problem is global and truly "has Israel's back," as Obama insisted.

The U.S., which has large forces stationed near Iran in the Persian Gulf and far more powerful weapons at its disposal, is in a much better position to strike.

A recently retired senior security official said Tuesday that Israel's military — armed with sophisticated American warplanes, missiles and unmanned drones — has sufficient military capability to damage Iran's program in coming months. But afterward, key installations will be hidden underground and out of reach of Israeli capabilities.

At that point, the United States with its superior firepower — B-1 and B-2 bombers, powerful bunker-busting bombs, aircraft carriers — would still be able to act even if Israel could not, the former official said.

Speaking on condition of anonymity because of the delicacy of the issue, he added that Iran is not pushing its program forward at full speed, preferring to inch ahead just enough to make progress while not providing a clear pretext for attack.

The official said it was in Israel's interest not to attack but receive real assurances that the United States would do so if sanctions had conclusively failed.

The official said Iran is capable of being persuaded to drop its nuclear ambitions — but that this required a more determined and airtight sanctions regime than currently in place.

Israel sees two critical deficiencies in the current sanctions, despite their escalation to include oil exports and the Iranian central bank: First, the U.S. oil sanctions have been delayed until summer — pushing their beginning, and certainly any effect — past Israel's perceived window of opportunity; second, China, Russia and India have not been compelled to join in — making the measures less than truly crippling.

If Israel loses faith, Israeli defense officials and external military analysts say its threats are far from empty.

Israel has been warning of an Iranian nuclear threat for nearly two decades, and the military has been systematically planning ways to stop the Iranians for years.

Scott Johnson, an analyst at the IHS Jane's military research firm, said Israel's air force is now believed to possess some 300 U.S.-made F-15 and F-16 warplanes, along with at least eight aircraft capable of refueling warplanes during a mission to Iran. He said Israel is also believed to have about 100 "bunker-busting" GBU28 bombs. The U.S.-made bombs pack 5,000 pounds (2,200 kilograms) of explosives and can go through six (yards) meters of concrete and penetrate up to 30 yards (meter) of dirt.

Israeli defense officials say the air force has practiced a number of long-distance exercises that could serve as models for striking Iran, where targets are believed to be some 1,000 miles (1,600 kilometers) from Israel.

In 2008, 100 air force jets participated in a drill in Greece that simulated similar distances. Israel has carried out similar drills more recently in Greece and Italy, the officials say. They spoke on condition of anonymity because they were discussing classified military information.

Backing up any Israeli air attack, foreign analysts say that Israel could use its arsenal of Jericho ballistic missiles, which are reportedly capable of reaching Iran. Israel is also believed to possess German-made Dolphin submarines that could fire missiles at Iran.

As part of its preparations, Israel has developed a series of missile-defense systems. Last year, it activated its "Iron Dome" rocket defense system, meant to defend against short-range rockets from Gaza and Lebanon. It also has activated its "Arrow" missile defense system, meant to stop missiles from longer distances. The third generation of the Arrow is currently in development.

Dan Perry is the Associated Press bureau chief for Israel and the Palestinian areas, and Josef Federman is Jerusalem news editor.

Copyright © 2012 The Associated Press. All rights reserved

There’s More to Nothing Than We Knew

By DENNIS OVERBYE NY Times

Why is there something, rather than nothing at all?

It is, perhaps, the mystery of last resort. Scientists may be at least theoretically able to trace every last galaxy back to a bump in the Big Bang, to complete the entire quantum roll call of particles and forces. But the question of why there was a Big Bang or any quantum particles at all was presumed to lie safely out of scientific bounds, in the realms of philosophy or religion.

Now even that assumption is no longer safe, as exemplified by a new book by the cosmologist Lawrence M. Krauss. In it he joins a chorus of physicists and cosmologists who have been pushing into sacred ground, proclaiming more and more loudly in the last few years that science can explain how something — namely our star-spangled cosmos — could be born from, if not nothing, something very close to it. God, they argue, is not part of the equation. The book, “A Universe From Nothing,” is a best seller and follows recent popular tomes like “God Is Not Great,” by the late Christopher Hitchens; “The God Delusion,” by Richard Dawkins; and “The Grand Design,” by the British cosmologist Stephen Hawking (with Leonard Mlodinow), which generated headlines two years ago with its assertion that physicists do not need God to account for the universe.

Dr. Krauss is a pint-size spark plug of erudition and ambition, who often seems to be jetting off in several directions at once on more missions than can be listed on a business card. Among other things he is Foundation Professor and director of the Origins Project at Arizona State University.

And he knows his universe. In 1995, he and Michael S. Turner of the University of Chicago made waves by arguing that many of the paradoxes regarding cosmology could be resolved if a large portion of the cosmos resided in the form of a hitherto-undiscovered energy, known then as the cosmological constant. Three years later astronomers discovered that the expansion of the universe was being accelerated by some “dark energy” that behaves exactly like the cosmological constant.

Dr. Krauss is also a prolific author of popular science books, including “The Physics of Star Trek.” And he has been an outspoken critic of attempts to introduce creationist ideas and to censor the teaching of evolution in schools and textbooks.

The new book grew out of a talk he gave in 2009 that got more than a million hits on YouTube.

The point of the book, Dr. Krauss, a self-described nonbeliever, writes at the outset, is not to try to make people lose their faith, but to illuminate how modern science has changed the meaning of nothingness from a vague philosophical concept to something we can almost put under a lab microscope.

How well you think he succeeds might depend on how far you yourself want to go down the rabbit hole of nonbeing. Why, for example, should we assume that nothingness is more natural than somethingness? Indeed, you might ask why it is that we think there is something here at all. The total energy of the universe might actually be zero, according to the strange bookkeeping of Einstein’s general theory of relativity, as Dr. Krauss points out. “The universe,” Alan H. Guth, a physicist at M.I.T., likes to say, “might be the ultimate free lunch.” Even space and time themselves might be a kind of holographic illusion, string theorists say.

You might think to dispute this by kicking a rock, but remember that both the rock and your foot are mostly empty space, prevented from intermingling by electric fields.

Dr. Krauss delineates three different kinds of nothingness. First is what may have passed muster as nothing with the ancient Greeks: empty space. But we now know that even empty space is filled with energy, vibrating with electromagnetic fields and so-called virtual particles dancing in and out of existence on borrowed energy courtesy of the randomness that characterizes reality on the smallest scales, according to the rules of quantum theory.

Second is nothing, without even space and time. Following a similar quantum logic, theorists have proposed that whole universes, little bubbles of space-time, could pop into existence, like bubbles in boiling water, out of this nothing.

There is a deeper nothing in which even the laws of physics are absent. Where do the laws come from? Are they born with the universe, or is the universe born in accordance with them? Here Dr. Krauss, unhappily in my view, resorts to the newest and most controversial toy in the cosmologist’s toolbox: the multiverse, a nearly infinite assemblage of universes, each with its own randomly determined rules, particles and forces, that represent solutions to the basic equations of string theory — the alleged theory of everything, or perhaps, as wags say, anything.

Within this landscape of possibilities, almost anything goes.

But even the multiverse is not totally lawless, as Dr. Krauss acknowledged. We are not quite there yet. At the very least, there would still be the string equations and those quantum principles that undergird them. Is quantum randomness the secret of existence?

“Maybe in the true eternal multiverse there are truly no laws,” Dr. Krauss said in an e-mail. “Maybe indeed randomness is all there is and everything that can happen happens somewhere.”

It would be silly to think that we won’t have better answers and better questions 50 or 100 years from now, but for the moment this is the story science can tell. If you find it bleak, that is your problem. “The universe is the way it is, whether we like it or not,” Dr. Krauss writes.

It gets worse.

If nothing is our past, it could also be our future. As the universe, driven by dark energy — that is to say, the negative pressure of nothing — expands faster and faster, the galaxies will become invisible, and all the energy and information will be sucked out of the cosmos. The universe will revert to nothingness.

Nothing to nothing.

One day it’s all going to seem like a dream.

But who is or was the dreamer?