CALIFORNIA YANKEE

Obama to nominate Hillary as Secretary of State Monday despite Constitutional prohibition

President-elect Barack Obama plans to nominate Senator Hillary Rodham Clinton as his secretary of state on Monday.

Hillary's nomination will be made in the face of the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office. 

That's quite clear. A Senator, such as Hillary, is prohibited from serving in any federal office "created" or the "emoluments whereof" were increased during the Senator's term.

The salary of the Secretary of State was increased in January 2008 by an executive order, promulgated pursuant to a 1990s cost of living adjustment statute. Because the increase occurred during the time Hillary was a Senator she can not be the Secretary of state.

This issue has been discussed quite a bit in the blogoshpere during the last couple of weeks. One of my favorite Constitutional scholars, Professor Eugene Volokh -- the Gary T. Schwartz Professor of Law at UCLA School of Law, has written about Hillary and the Emoluments Clause. Professor Volokh concludes "it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State." I agree.

The problem has been faced before. Rather than abide the plain language of the Constitution, Presidents Taft in nominating Senator Philander Knox to be Secretary of State, Nixon in nominating Senator William Saxbe to be Attorney General, Carter in nominating Senator Ed Muskie to be Secretary of State, and Clinton in nominating Senator Lloyd Bentsen to be Treasury Secretary, all decided not to let the U.S. Constitution stand in their way.

As President-elect Obama joins the company of Presidents Taft, Nixon, Carter and Clinton, he will probably ask Congress to lower the salary of Secretary of State back to what it was before Hillary took office so that Hillary can take the appointment without a pay increase that while she was in the Senate. Such a charade has come to be known as "the Saxbe fix." 

But many legal scholars believe that the Saxbe fix does not cure the Constitutional problem, because the language of the Emoluments Clause is clearly an absolute prohibition: No senator or representative, period. 

Professor Volokh has also shared the thoughts of Professor Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994), on the Saxbe fix:

 A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.

Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State.

I wouldn't bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

It is sad to see President-elect Obama, a former lecturer on Constitutional Law, show such a lack of respect for the Constitution.

Jindal visits Iowa, the 2012 campaign has begun

Bobby Jindal, the Louisiana governor the Washington Post calls "the Republican's version of Obama," visited Iowa last weekend. Jindal's Iowa trip ignited talk that the campaign for the 2012 Republican presidential  has begun:

Already, a fierce fight is looming between him and other Republicans -- former Arkansas governor Mike Huckabee, who arrived in Iowa a couple of days before him, and Alaska Gov. Sarah Palin, who is said to be coming at some point -- for the hearts of social conservatives.

The Post likens Governor Jindal to President-elect Obama:

Like the president-elect, Gov. Bobby Jindal of Louisiana is young (37), accomplished (a Rhodes scholar) and, as the son of Indian immigrants, someone familiar with breaking racial and cultural barriers. 

[. . .]

Jindal is, above all else, a political meteor, sharing Obama's precocious skills for reaching the firmament in a hurry. It was just four years ago, after losing a gubernatorial election, that he won election to Congress, and only this year that he became Louisiana's governor, the first nonwhite to hold the office since Reconstruction. And now, 10 months into his first term, the talk of a presidential bid is getting louder among his boosters.

[. . .]

Jindal is his own invention, in the mold of an Obama. Born in Louisiana as Piyush Jindal to highly educated immigrants from India, he decided as a young child to nickname himself "Bobby," after his favorite character on the TV show "The Brady Bunch." Raised as a Hindu, he converted to Catholicism while in college and later wrote a lengthy, intimate story that provided a window on his religious evolution, in a manner that fairly calls to mind Obama's books about his own grappling with issues of self-identity. Success at Brown University and later at Oxford University during his Rhodes years led to high-profile attention in the power corridors of Louisiana and Washington.

Around the country, Republican players have taken notice of Jindal:

Steve Schmidt, the chief strategist of McCain's failed presidential bid, sees Jindal as the Republican Party's destiny."The question is not whether he'll be president, but when he'll be president, because he will be elected someday." The anti-tax crusader Grover Norquist believes, too, that Jindal is a certainty to occupy the White House, and conservative talk-radio host Rush Limbaugh has described him as "the next Ronald Reagan."

While in Cedar Rapids, Jindal claimed he only had one political race on his mind, but like Obama he talks of a new politics:

"I'm running for reelection to be governor of Louisiana in 2011," he said. "I'm not running for any other office."

[. . .]

"I want to be the best governor I can be for the people of Louisiana. Look, I think the American people are tired of campaigns and politics. We need to get behind our new president and our new Congress, support them, and stop being Democrats and Republicans. We need to work together to make sure our government is successful."

Jindal might continue to be coy about it. But, with Jindal and Huckabee already visiting Iowa, Gallup and Zogby conducting preference polling on potential 2012 Republican presidential candidates, and a TV ad already aired, 2012 has begun.

Palin leads among republican voters for 2012

A recent Zogby Poll found that, among Republicans, Alaska Governor Sarah Palin leads the pack of possible 2012 GOP Candidates:

Sarah Palin - 24.4%
Mitt Romney - 18.1%
Undecided/Not Sure - 16.2%
Bobby Jindal - 15.6%
Mike Huckabee - 9.7%
None of the Above/Someone else - 8.2%
Rudy Giuliani - 5.6%
Ron Paul - 2.9%

The Zogby numbers are similar to those reported by Gallup. When Gallup asked Republicans whether they would like to see the following run for President in 2012, Palin again came out ahead:

Sarah Palin - 67%
Mitt Romney - 62%
Mike Huckabee - 61%
David Petraeus - 49%
Rudy Giuiliani - 48%
Newt Gingrich - 47%
Bobby Jindal - 34%
Jeb Bush - 31%
Charlie Crist - 23%
Lindsey Graham - 21%

According to Zogby, Palin's strength is with all conservatives, conservative religious voters and gun owners:

Among Republicans, she gets the support of 30% of Born-Again Christians, 32% of weekly churchgoers, 34% of National Rifle Association members, 28% of current gun owners and 29% of self-identified conservatives. More GOP support comes from 32% of blue collar workers, 30% who shop weekly at Wal-Mart, 28% of NASCAR fans and 25% of both those with children under 17 and those with family members in the military. She scores lower among GOP voters ages 18-29, with 15%.  

[. . .]

Palin looks to be stealing Huckabee's thunder among Republican religious conservatives and working class voters. Huckabee is an ordained Southern Baptist minister, and his highest GOP totals still come from Born-Again Christians (15%) and weekly churchgoers (18%), but those numbers are about half of those drawn by Palin. Despite his populist economic message, he wins only 10% of blue collar Republicans.

The Zogby poll was conducted November 7-18 and has a margin of error of ±0.6 percent. The Gallup poll was conducted November 5-16 and has margin of error of ±4 percent.

Mumbai massacre complicates Obama's plans for Pakistan in the fight against al Qaeda

The Washington Post reports the last gunman has been killed ending the Mumbai massacre:

Indian officials said they now believe that at least 15 gunmen carried out the operation after reaching Mumbai by sea. After an interrogation of one of the attackers, Indian intelligence officials said they suspected that a Pakistani Islamist group, Lashkar-i-Taiba, was responsible. An Indian intelligence document from 2006 obtained by The Washington Post said members of the group had been trained in maritime assault.

Authorities said that the death toll had risen to 195 as more bodies were discovered and that 295 people were wounded, the Associated Press reported, in attacks on the hotels, the Jewish center and several other sites in Mumbai.

The Associated Press provides the following video report:

CNN is more cautious reporting officials were not ready to declare the operation over until they finished their room-by-room search of the Taj Mahal Hotel.

The New York Times also reported evidence suggests Lashkar-e-Taiba, or possibly another Pakistani group, Jaish-e-Muhammad were responsible for the terror attack:

Lashkar-e-Taiba on Thursday denied any responsibility for the terrorist strikes. The group is thought by American intelligence agencies to have received some training and logistical support in the past from Pakistan’s powerful spy service, the Inter-Services Intelligence agency, or ISI, but American officials said Friday that there was no evidence that the Pakistani government had any role in the Mumbai attacks.

American and Indian officials for years have blamed Lashkar-e-Taiba for a campaign of violence against high-profile targets throughout India, including the December 2001 attack on the Indian Parliament building in New Delhi and an August 2007 strike at an amusement park in Hyderabad.

At times, Indian officials have also said that Jaish-e-Muhammad was responsible for the 2001 attack on the Parliament building.

Haaretz also reports the prime suspect is Lashkar-e-Taiba:

Pakistani intelligence founded, aided and cultivated this and other militant organizations as part of its battle against India in the contested region of Kashmir. It was only in 2003, after 9/11 and under heavy pressure from India and the United States, that the organization and similar ones were outlawed in Pakistan.

[. . .]

In the past, the group had strong links to Osama Bin Laden, and its members trained in Al-Qaida camps in Afghanistan. Abu Zubaydah, considered one of the most senior Al-Qaida officials being held at the Guantanamo Bay detention camp, was captured in March 2002 in a joint operation by United States and Pakistani intelligence forces at a Lashkar a-Tayeb safe house.

Pakistan must do more to fight terrorists and control its intelligence service. Pakistan has never been a reliable ally in the War Against Islamic Extremists. In fact the U.S. coerced  Pakistan to support the War.

The Mumbai massacre will at least slow the movement of India and Pakistan toward improved relations:

Reconciliation between India and Pakistan has emerged as a basic tenet in the approaches to foreign policy of President-elect Barack Obama, and the new leader of Central Command, Gen. David H. Petraeus. The point is to persuade Pakistan to focus less of its military effort on India, and more on the militants in its lawless tribal regions who are ripping at the soul of Pakistan.

Preventing better relations between the two hostile and nuclear-armed nations may be exactly the goal of the Mumbai terror attacks.

After the 2001 terrorists assault on the Indian Parliament, India said Pakistan's Inter-Services Intelligence had backed the operation. For the next year the countries teetered on the brink of a war that could have involved nuclear weapons.

Richard Fernandez sums it all up nicely. He writes that because the U.S. seeks Pakistan's help against al Qaeda and the Taliban from a position of weakness, Pakistan is strengthened at the expense of India:

Pakistan can continue to dangle the chimerical carrot in front of Obama. ‘Hold back India and we will help you with Bin Laden’ Then they’ll turn around and hit New Delhi in the face and there won’t be a thing India can do about it.

Endeavour heads home

The space shuttle Endeavour undocked from the International Space Station Friday morning:

Endeavour arrived at the station November 16. The mission delivered equipment to allow the station crew size to double to six. The gear included two sleep stations, a new galley, a water recovery system and an advanced resistive exercise device.

Astronauts also performed four spacewalks -- cleaning, lubricating and installing new bearing assemblies on the starboard solar array.

Endeavour is scheduled to land at Kennedy Space Center, Fla., Sunday at 1:19 p.m.

Obama backs away from '2.5 million more jobs'

In this week's edition of "Your Weekly Address from the President-elect," Obama dumbed down his unimpressive goal of "2.5 million more jobs by January of 2011."

Last week Obama called for "2.5 million more jobs by January of 2011." This week Obama says he wants to "create or save 2.5 million new jobs":

Earlier this week, I announced my economic team. This talented and dedicated group is already hard at work crafting an Economic Recovery Plan that will create or save 2.5 million new jobs, while making the investments we need to fuel long-term economic growth and stability.

Calling for 2.5 million more jobs is much different than creating or saving 2.5 million new jobs. It's sad to see the President-elect dumbing down his goal after only one week. After all, 2.5 million jobs are not nearly enough.

You can watch Obama's entire gloomy weekly address below:

Democrats' Word Games

Democrats are all about propaganda rhetoric these days:

Democrats, who almost never call themselves liberal anymore (preferring to be known as progressives), have apparently decided that the terms "bailout" and even "stimulus" won't do either. Such efforts will now be called economy "recovery" programs.

"Economic recovery" sounds reminiscent of New Deal:

Incoming Chief of Staff Rahm Emanuel says, "'Stimulus' is Washington talk, and 'economic recovery' is how the American people think of it."

Britt Hume covers it in the following video:

Whatever the Democrats call it, $7 trillion is too much.

Picking on Obama's cabinet

Late night comics make fun of President-elect Obama's cabinet picks in the following MSNBC video:

Happy Thanksgiving 2008

The traditional Thanksgiving story is that some time in the fall of 1621, the settlers at Plymouth, Mass., held a feast to thank God they'd survived their harrowing first year in the New World.

They invited neighboring Indians, who had taught them agricultural skills critical to their survival. Together they celebrated their good fortune with a three-day feast.

There is a problem with the traditional story - no one invited the Indians.

The settlers threw the party for themselves. Members of the local Wampanoag tribe arrived only after hearing the English firing their arms in celebration. This view may be historically accurate.

A firsthand account of the original Thanksgiving is provided in "Mourt's Relations," a series of letters written in 1620 and 1621, primarily by settler Edward Winslow.

He writes of a harvest celebration, "at which time amongst other recreations, we exercised our arms, many of the Indians coming amongst us and they went out and killed five deer, which they brought to the plantation and bestowed on our governor."

 Actually, the harvest of 1621 wasn't great at all. The barley, wheat, and peas the Pilgrims brought with them from England had failed. Fortunately, the corn did well enough that they were able to double their weekly food rations.

The Pilgrims were happy to be alive: The previous winter had wiped out 47 people--almost half their community.

What people are thankful for changes from year to year.

The Founding Fathers were happy to have established a government. And Lincoln's Thanksgiving proclamation expressed thanks that the Civil War had not destroyed the country.

On January 6, 1941, President Franklin D. Roosevelt addressed Congress. His "Four Freedoms" offered a vision in which the American ideals of individual liberties were extended throughout the world:

Four Freedoms We look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression--everywhere in the world. The second is freedom of every person to worship God in his own way-- everywhere in the world. The third is freedom from want . . . everywhere in the world. The fourth is freedom from fear . . . anywhere in the world.

The speech inspired Norman Rockwell to create a series of paintings on the "Four Freedoms," including "Freedom From Want."

In his Thanksgiving Day, 2008 Proclamation, President Bush reminds us that we have much to be thankful for:

Thanksgiving is a time for families and friends to gather together and express gratitude for all that we have been given, the freedoms we enjoy, and the loved ones who enrich our lives. We recognize that all of these blessings, and life itself, come not from the hand of man but from Almighty God.

Every Thanksgiving, we remember the story of the Pilgrims who came to America in search of religious freedom and a better life. Having arrived in the New World, these early settlers gave thanks to the Author of Life for granting them safe passage to this abundant land and protecting them through a bitter winter. Our Nation's first President, George Washington, stated in the first Thanksgiving proclamation that "It is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor." While in the midst of the Civil War, President Abraham Lincoln revived the tradition of proclaiming a day of thanksgiving, asking God to heal our wounds and restore our country.

Today, as we look back on the beginnings of our democracy, Americans recall that we live in a land of many blessings where every person has the right to live, work, and worship in freedom. Our Nation is especially thankful for the brave men and women of our Armed Forces who protect these rights while setting aside their own comfort and safety. Their courage keeps us free, their sacrifice makes us grateful, and their character makes us proud. Especially during the holidays, our whole country keeps them and their families in our thoughts and prayers.

Americans are also mindful of the need to share our gifts with others, and our Nation is moved to compassionate action. We pay tribute to all caring citizens who reach out a helping hand and serve a cause larger than themselves.

On this day, let us all give thanks to God who blessed our Nation's first days and who blesses us today. May He continue to guide and watch over our families and our country always.

Image courtesy of the National Achieves.

Obama's 2.5 million jobs are not enough

In this week's edition of "Your Weekly Address from the President-elect," Obama announced a goal of "2.5 million more jobs by January of 2011":

“I have already directed my economic team to come up with an Economic Recovery Plan that will mean 2.5 million more jobs by January of 2011 – a plan big enough to meet the challenges we face that I intend to sign soon after taking office."
 

That is not nearly enough.

Historically, since 1940 the average percentage increase in jobs created by the U.S. private sector year over year has been a bit more than 2.1 percent. In August 2008, the most recent month available at the Bureau of Labor Statistics, there were 115,867,000 private sector jobs. At the historic average rate of 2.1 percent the economy should produce 2,433,207 "more jobs" each year - just about equal to the president-elect's uninspiring two-year goal. Obama's goal ought to be at least five million jobs. He should strive to at least reach the historic average.

On the other hand, during the campaign Obama proposed $3,000 tax credit for businesses that hire new workers in 2009 or 2010. At $3,000 for every job created, five million jobs would cost taxpayers $75 billion. That would be in addition to the other $375 billion in job creation programs Obama proposed during the campaign:

During the campaign, Obama had talked about a $175 billion program for middle-class recovery, including $65 billion for tax rebates, $25 billion for infrastructure spending, $25 billion in aid to states, $40 billion for a new-jobs tax credit, $5 billion to expand loan guarantees for small business, with the rest going to aid to automakers and expanded unemployment insurance.

Separately, Obama has promised to create 5 million “green-collar jobs” by “strategically investing $150 billion over the next 10 years to catalyze private efforts to build a clean energy future.” That commitment suggests a higher quality of jobs, not just sheer numbers.

His economic plan during the campaign had specified: “Provide $50 billion to Jumpstart the Economy and Prevent 1 Million Americans from Losing Their Jobs: This relief would include a $25 billion State Growth Fund to prevent state and local cuts in health, education, housing, and heating assistance or counterproductive increases in property taxes, tolls or fees. The Obama-Biden relief plan will also include $25 billion in a Jobs and Growth Fund to prevent cutbacks in road and bridge maintenance and fund school repair – all to save more than 1 million jobs in danger of being cut.”

That total of $450 billion is enough money to simply give 8,958,254.5, nearly nine million families (8,958,254.5 to be more precise), $50,233. According to the U.S. Census Bureau, $50,233 is the real median annual household income in the United States.

Even if Obama only spends $300 billion on job creation, as reported by Katherine Skiba, that would still be enough to give an amount equal to the real median household income to nearly six million families.