Obama frees Oscar López Rivera

Early this week, President Obama commuted the sentence of Oscar López Rivera, a Puerto Rican activist serving a 70-year sentence for a variety of charges, including seditious conspiracy, that is, conspiracy to destroy or overthrow the US government.  Notable figures who supported, and sometimes lobbied very aggressively for, Mr. López Rivera’s pardon include Nobel Peace laureates Mairead Maguire of Northern Ireland, Adolfo Pérez Esquivel of Argentina and Archbishop Desmond Tutu of South Africa; Alejandro García Padilla, governor of Puerto Rico; former US president Jimmy Carter; former Democratic presidential candidate Bernie Sanders; and Lin-Manuel Miranda.  

This is a remarkable list.  But it is not unanimous.  Some commentators are angry.  According to Charles Lane, for example, "this is the Obama pardon you should be mad about."  An article on "The Federalist" argues that the pardon "trades a terrorist for votes."  And a piece in the Breitbart News Network brands López Rivera a "domestic terrorist" and labels his freedom "a cause for leftist Latinos."

The facts surrounding López Rivera's incarceration are fuzzy and very much dependent upon one's point of view.  But the basic sketch is as follows. López Rivera  was born in Puerto Rico in 1943 and moved to Chicago at the age of 14.  He served in Vietnam at the age of 18 and was awarded the Bronze Star.  Upon returning to Chicago, López Rivera became a community organizer and leader for the independence of Puerto Rico.  He eventually joined a group called  Fuerzas Armadas de Liberación Nacional, or FALN.  Ultimately, FALN claimed responsibility for over 120 bombings around the United States between 1974 and 1983, which led to 6 deaths and many more injuries.  But the bombings connected to Mr. López Rivera were those from the Chicago area, and which led to his conviction, did not result in injuries.  This is consistent with López Rivera's assertions that he focused on not endangering people's lives.  As he told the Guardian last year, “For me, human life is sacred. We called it ‘armed propaganda’ – using targets to draw attention to our struggle.”

Whatever you think of Mr. López Rivera and his past, his pardon raises a much larger question for me.  The is a question that I have thought about for a long time, as has every Puerto Rican: What is the status of the island?  There is only one honest answer to this question, irrespective of one's politics: Puerto Rico is a colonial territory of the United States.  I don't really know how else to put it.  Puerto Ricans first became US citizens courtesy of the Jones Act of 1917.  But this is a curious kind of citizenship, because it is not accompanied by political rights and representation.  It can only be described as second-class citizenship.  The island remains at the whim of Congress on issues that do not involve fundamental rights.  US citizens on the island do not have a voting member of Congress, nor are they represented in the Electoral College.  This should be inconceivable under the US Constitution.  The status of Puerto Rico and its citizenry reminds me of what political theorists label "Happy Slaves."  Consent theory and US constitutionalism fail as applied to the people of Puerto Rico.  The status of the island is indefensible.

This is not to argue that Puerto Rico should be a state, or a commonwealth, or an independent nation.  Those are much harder questions.  The question of the status of Puerto Rico as it exists today is an easy question.  Too easy.

Once we understand the status of Puerto Rico for what it is, colonial rule for a modern American audience, the case of López Rivera turns far more complex and his pardon becomes much easier to see and understand.  His case reminds me of Hamilton and the founding generation.  This is a generation that took up arms in defense of their liberty at the hands of what they deemed to be a tyrannical government.  López Rivera is following in their footsteps.  He took arms against colonial rule.  Any seditious conspiracy of which he is accused pales in comparison to what Washington and his generation did, taking arms against the King.  Think also of what the founding generation did in the hot summer of 1787, meeting illegally in Philadelphia in order to "form a more perfect union."  Can we defend the actions of the founding generation while refusing to similarly defend López Rivera?  maybe we can.  But it would not be easy.  

And most commentators are not even trying.

Latinos, Obama, and 396,906

Ah, Mr. President, do us proud.  Figures released and reported by administration officials show that the government has deported a grand total of 396,906 "foreigners" over the last year.  Unsurprisingly, these are record levels.  The officials defend this deportation strategy by focusing on the deportees.  As reported by the N.Y. Times:

The officials said that 55 percent of the immigrants deported were criminal convicts, including 51,620 people convicted of felonies like homicide, drug trafficking and sexual offenses. The results were an 89 percent increase in deportations of criminals since the beginning of the Obama administration, the officials said. Of the remaining illegal immigrants deported, the great majority were arrested soon after they crossed the border illegally or had returned illegally after being deported, officials said.

 How is that for law and order?  Is this what passes for immigration reform in our present political climate?

Worse yet, according to a report by the Warren Institute on Law and Social Policy at Berkeley: the strategy has had a disproportionate impact on the Latino community.  Under the administration program, known as "Secure Communities," 93% of those immigrants arrested were Latino, even though Latinos as a whole only form two-thirds of those who immigrate into the United States illegally.  Also, about a third of the 226,000 immigrants deported under the program have spouses and/or children with American citizenship.  The researchers also found cases where immigration agents held U.S. citizens, even though immigration officials do not have authority to prosecute or deport American citizens.

This is change, all right.  Whether we can believe in it or not is a much different question.

The Over-Under on Obama's Fight on Taxes

This past Monday, President Obama offered new proposals for solving our long-tern economic woes.  Unofficially branded the "Buffett Rule," these proposals focus on the rich paying more in taxes. They include closing the Bush tax cuts to higher incomes, new taxes on the wealthy, a special new tax for millionaires, and closing loopholes for those who make over $250,000. Unsurprisingly, critics immediately branded the proposal "class warfare."

According to Robert Reich, this will be not only the fight fight of 2012, but "perhaps the defining battle."

This makes me wonder, in light of everything we have seen from the president to this point: how long will this fight last until he caves to the Republican side?

Could he possibly last until the new year?

Obama Approval Hits New Low Among Black Voters

A recent PPP poll has found that Obama's approval among African-American voters at 76%.  I have long suspected that the public criticism of the President by black leaders and the dire circumstances within which too many African Americans find themselves are starting to take their toll on the President.  The concern is not that African Americans will start to vote for the the Republicans, but that they'll stay home and not turnout.

There is no doubt that the Administration is paying attention.  I am still concerned about their strategy of soft-pedaling the concerns of the African-American community.  Moreover it is not clear that they fully appreciate the depth of this problem.  My worry is not only that there is a fundamental problem with the strategy, but that the strategy may be wrong on its merits. The Administration's strategy is to enact general public policy with the expectation that those policies will disproportionately benefit distressed communities.  Thus, you pass healthcare reform and because blacks are more likely to be uninsured or under-insured, the expectation is that they will benefit disproportionately from the public policy.  A recent Politico article reported that the " president is reportedly angry that African-American leaders aren’t crediting him for his hard-bought achievements that will especially help communities of color, including health care reform, aid to cities, student aid and protecting Medicaid."    The worry is that this trickle-down strategy may be wrong on the merits.  A rising tide may not lift all boats if we are not all in the same body of water.  If the strategy is wrong on the merits, general public policy measures will have little impact on the black community and will certainly not be as effective as specific public policy measures.

My guess is that the President's upcoming jobs speech is potentially vulnerable in this regard.  I think he needs to acknowledge explicitly the jobs problem in the African-American community and communities of color.  He might also be wise to provide specific prescriptions directed toward the economic plight of African Americans. I was quite struck by this interview that the President gave recently on the Tom Joyner Morning Show, which has a very large and predominantly black audience.  What struck me was that the race-avoidance strategy was still in effect, even talking to a predominantly black audience.  The President did not specifically address the African-American community as such until toward the end of the interview when he was talking about healthcare.  He said, "Well, I think one of the things that we really emphasized during health care reform was prevention. And nobody benefits more than the African-American community from that because we have so many preventable diseases. And that’s why what Tom is doing is so important."  Notice that the pitch is again general and not specific to the needs of the black community.


So far, this strategy has been defended on the grounds that a black President cannot be seen to be overtly responsive to the needs of the black community; if he is, he will lose the election. Maybe. I'm becoming less persuaded that the risk-reward calculus here favors the black community. Perhaps more importantly, I think there is a serious likelihood that enough black voters will sit out 2012 and I'm not sure that even Rick Perry will scare them to the polls. You need to give people a reason to vote for you. You need to tell them what you're going to do for them, especially when they are hurting. It is early and there is still time, but the warning signs are there.

Should Republicans Worry?

Notwithstanding the sorry state of the economy, President Obama's  is doing relatively well in the world of public opinion.  Yes his approval has gone down, but it could be much worse. See this excerpt from a recent Pew report:

The better news for Obama is that he continues to be seen by majorities as someone who stands up for what he believes in (71%), as caring (63%) and trustworthy (59%). Moreover, his 43% job approval rating, while much lower than his rating just a few months ago, is relatively strong given the widespread dissatisfaction with national conditions, increasingly negative views of the economy, and broad distrust of government. And Obama’s approval rating continues to be much higher than those for congressional leaders of both parties.

Obama continues to run even in a 2012 matchup against a generic Republican presidential candidate. Currently, 43% of registered voters say they would like to see Obama reelected while 40% would prefer a Republican. That is little changed from a month ago (41% Obama, 40% Republican), but in May Obama held an 11-point lead in the generic ballot.

Voters remain unimpressed by the GOP field. As was the case in late May, prior to the Ames straw poll and Rick Perry’s entry into the presidential race, only about a quarter of voters (26%) say they have an excellent or good impression of the possible GOP candidates. Most (64%) say as a group the candidates are only fair or poor.

 The Republicans have hurt themselves with the recent debt debate and the weakness of their presidential field.  I've long thought that folks are writing off the President way too early.  If there is angst, it ought to be on the Republican side.

Anybody out there NOT angry at Obama?

The campaign to fill Anthony Weiner's seat in New York's Ninth Congressional District is well underway. And it turns out to be a far more competitive race than anybody expected.  Anybody not paying attention, that is.  So here is the New York Times headline this morning: "In the Race to Succeed Weiner, a Surprising Anger at Obama." I don't know how anybody out there with any kind of political pulse cannot possibly be mad at the president.

I, for one, am glad that the voters in this predominantly Democratic district are showing a pulse.  Whether he wins or loses next year is not the real question; rather, it is whether the president will continue taking his base for granted.    

Obama and Black Voters: Beginning of the End?

The Washington Post's Jonathan Capehart has this post about Representative Maxine Waters asking black voters at a job fair in Detroit the permission to put pressure on the President.  As reported by Capehart, Representative Waters said:

We don’t put pressure on the president. Let me tell you why. We don’t put pressure on the president because y’all love the president. You love the president. You’re very proud . . . to have a black man [in the White House] . . . First time in the history of the United States of America. If we go after the president too hard, you’re going after us. . . . When you tell us it’s all right and you unleash us, and you tell us you're ready for us to have this conversation, we’re ready to have the conversation. . . . All I’m saying to you is, we’re politicians. We’re elected officials. We are trying to do the right thing and the best thing. When you let us know it is time to let go, we’ll let go.

Caphart reports that she received permission, at least from those at the jobs fair in Detroit.  The President has lost some support from the black community, but not too much.  Are black voters starting to take defect?  Is the high-profile criticisms of the President by Dr. Cornel West and Tavis Smiley starting to soften the President's support in the black community?

UPDATE: See this article in Huffington Post.  There seems to be a concerted effort by black political leaders in Congress to be more vocal and public about their criticism of the President.  It might be that these leaders are feeling increasing pressure from their constituencies and thus pointing the finger at the President.  But this is definitely something to pay attention to.

The Canard of Judicial Diversity

My ninth grader tried out for the high school soccer team a few weeks back.  And as I watched a practice here and there and wondered who would make the team and who would not, I could not help but think about debates over judicial diversity.

The question is this: how do you choose the eighteen best deserving players to join the team?  Is it the players who best handle the ball?  The ones with the best shot?  Or is it the ones who run fastest, or who hustle on every play?  In a nutshell: who deserves to make the team?

This is not an easy question when talking about putting together a soccer team, and nobody pretends that it is.  Yet somehow we pretend otherwise as soon as we translate this question into debates over racial diversity.  Here is an example, from Curt A. Levey, the executive director of the Committee for Justice:

Diversity is a good thing, but how do you achieve it — by quotas? . . .  Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?  The more you focus on race and gender, . . . the less you’re going to focus on other traditional qualifications — that’s simply the math of it.

This is a canard, plain and simple.  But there is no denying that it is a very effective canard.

What makes a deserving judicial candidate?  This is a very difficult question.  We ought to stop pretending otherwise.

Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.” According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.

Connecting the Dots: Of Haves and Have Nots

I am thinking about three separate pieces this morning, brought together by President Obama's recent tax deal.  The first is a terrific video by Swedish academic Hans Rosling doing the rounds on the internet that illustrates graphically the last 200 years of global development.

You can watch the video here.

The second is, of course, Obama's tax deal, and particularly the extension of Bush's high end tax cuts.  It is all about the economy, stupid, and particularly job creation.  Economists and Democratic policy experts are pleased with the deal, as Democrats in Congress are clearly not.  So if you make in excess of $250,000, go create us some jobs.  And Happy Holidays.

The third is the recent decision by Don Blankenship, notorious CEO of Massey Energy, to resign from his position on the heels of a scathing Rolling Stones' profile piece by Jeff Goodell. It was the closing line of the piece that brought all three pieces together for me:

If any of this troubles Blankenship, he doesn't let on. By his own accounting, the bottom line provides all the proof he needs of his virtue. "I don't care what people think," he once said during a talk to a gathering of Republican Party leaders in West Virginia. "At the end of the day, Don Blankenship is going to die with more money than he needs."

We can only hope, at the end of the day, that Blankenship creates us some jobs.  Obama's presidency, it might appear, hinges on it.

As for the moral of all these stories?  Andrew Leonard put it best: "Suffering pays -- as long as it is inflicted on other people."

The President We've Been Waiting For

President Obama speaks out in favor of the Islam Center near ground zero.  While many of us have criticized this White House for being too cautious, this is a counter-example.  I hope that this is not like the Henry Louis Gates incident where the President spoke out and then had to backtrack.  The President is right to remind us of our values as a country.  If a Democrat cannot defend religious freedom and anti-religious bigotry, then we are really in trouble as a country.

The White House and "Liberal Judicial Philosophy"

On "Face the Nation" two days ago, CBS Chief Legal Correspondent Jan Crawford discussed some documents she unearthed that will "give the White House something else to think about" regarding Elena Kagan's nomination to the Supreme Court.  Bob Schieffer first offered that one of the main reasons that Kagan was Obama's choice was the fact that she would be "easily confirmed."  But these documents proved that Kagan was "a lot more liberal than people realize."  According to Crawford (you might want to sit down as you continue reading, by the way):

These documents have her squarely within mainstream liberal thought.  She’s worried about this conservative Supreme Court undoing rulings that would give a woman the right to an abortion, she’s worried about gun rights, saying she is not sympathetic to an individual’s right to own a handgun, she’s concerned about some conservative rulings scaling back rights of criminals, that’s basic, mainstream liberal thought.

So basically, for a Democratic President to nominate a person to the Supreme Court who would not overturn Roe, Miranda et al., and would agree with Judge Robert Bork that the Second Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" would bring a fight with conservatives that President Obama does not want?  

This, in a nutshell, highlights the challenge facing progressives in modern American politics.  

As Guy has argued, judicial nominations offer an "opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning."  Instead, the White House has fought back the notion that Kagan is a liberal with a vengeance, as if, in Crawford's words, "it's a smear to say their nominee is a liberal."

In the end, judicial nominations are fights over meaning.  Presently, the conservatives hold the clear upper hand: their judges are "paragons of judicial restraint," while liberal judges are "judicial activists" hell-bent on rewriting the Constitution to their liking.  Rather than offer a counter-narrative, President Obama has chosen to accept the conservative narrative as his own.  That is unfortunate.  He is thinking about his political future in the short term, when he should be thinking "long term for the Court and the law and liberal judicial philosophy.”

Thinking about Activism, Judicial and Otherwise

An article in yesterday's New York Times pitted President Obama and Chief Justice Roberts as "two intellectual gladiators in a great struggle over the role of government in American society."

Without intending to do so, this Article highlights the many problems facing progressives in the world of American politics.

Three things in particular caught my attention. First, the framing of the article itself puts progressives in a situation they cannot win. It is Obama, the President and author of "Obamacare" and everything that is wrong in the world of politics inside the Beltway, against the Chief Justice of the Supreme Court. I wonder who is going to win that battle in the court of public opinion.

This point is directly related to the second. In the article itself, Obama is labeled "an activist president." I think the label is partly right, especially in the wake of the landmark health care legislation. But the label is also partly wrong. Obama may be an activist, but he certainly is not the activist that progressives might prefer. Think in this vein of the health care bill itself and its lack of a public option. Think also of the recent debacle over the failed nomination of my colleague Dawn Johnsen to lead the Office of Legal Counsel, or the direction of Obama's foreign policy. If this is a liberal President, and an activist President at that, I cannot imagine what a moderate president would look like.

The third point follows as well. This is a point about judicial nominations. From the article:

the search for a replacement for the retiring Justice John Paul Stevens is centered on finding a justice who will not just replicate his liberal votes but also bring intellectual heft and powers of persuasion to the court to win the swing vote of Justice Anthony M. Kennedy, according to people close to the search who insisted on anonymity to discuss it. While activists on the left often say they want a liberal Antonin Scalia, the fiery conservative justice, Mr. Obama is looking for a liberal John Roberts, who can forge a five-vote majority rather than write satisfying but ultimately meaningless dissents.

There is so much wrong with this passage that I don't even know where to begin. Obama wants a "liberal" with "intellectual heft" yet also with "powers of persuasion" to seduce meek Justice Kennedy to our side. This is troubling enough; yet more troubling still is the idea that the Chief Justice is a consensus builder, a conservative justice willing and able to forge compromise and bring the needed justices to his side. To be sure, this is what the Chief Justice preached during his confirmation hearings and soon after joining the Court. This is not the Chief Justice we have come to know.

The larger point is this: labels matter, and in the public imagination, Obama is a liberal, and so is Justice Stevens, Breyer, and even Sotomayor. In contrast, Thomas, Scalia and the Chief Justice are conservative justices , "classical judicial jurists" who follow the law and do not try to make anew. This is clearly a hoax, a myth carefully created and nurtured by very smart people who clearly know what's at stake.

Move ahead to the upcoming Supreme Court nomination in order to make sense of all of this. In the last go around, Obama nominated a moderate judge yet conservatives assailed her as a liberal activist and 31 senators voted against her. The next nomination will be along similar lines and senators will criticize it all the same. Right then and there you know that the conservative movement and its construction of reality is winning, by a wide margin. A Republican president nominates Justice Alito and Chief Justice Roberts, and Senate Republicans are able to confirm them. Why is it that Democrats cannot do the same? Why is it that Professor Pam Karlan, as distinguished and credentialed an academic as you will find, is not nominated, but a moderate, even conservative Elena Kagan might be?

Here is everything you need to know: five years ago, two of the four "liberals" on the Court were nominated by Republican presidents. What does that tell you about the Court's ideological drift in the last generation? This reminds me of Justice Stevens' dissent in Parents Concerned, the Seattle school case, where he wrote that "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." Of course not. This is not the same Supreme Court we are discussing. This is an activist Supreme Court, especially on matters about which the conservatives care deeply. All the while, the general public continues to believe that it is a conservative Court, and the press continue to perpetuate the myth of its conservatism.

As I stated at the onset, this is the problem confronting progressives at the moment. It is quite a challenge.

Steele's Race Card

Appearing in ABC's "Good Morning America, embattled Republican National Committee chairman Michael Steele suggested that his margin of error as chairman is smaller than others because of his race. In so doing, Mr. Steele argued that he and President Obama found themselves in the same position: handicapped because of their race.

As soon as I heard the comment, two questions popped into my head. Can anybody seriously doubt that such a double-standard exists? And yet, why in the world would Steele say that?

The first reaction takes me back to a post from a few months back about the way race shapes perceptions of reality. The same applies here: ask a person of color about this comment, and she will nod her head in agreement, barely having to think about it at all. Of course he is being judged differently. What's new about that? Ask a white person, however, and you are likely to get a different answer. We are divided by color indeed.

But that's precisely the point. What does Mr. Steele have to gain by linking his struggles as chairman of the Republican National Committee to his race? The immediate reactions were unsurprising. Ask the White House, and its spokesperson will tell you that Steele's comment is "silly." Ask a Democrat, and he will tell you that Steele's "case of foot-in-mouth disease is getting very tiresome," and he "is the price the Republicans are paying for tokenism." Ask a Republican, and he will take issue with the tokenism charge and will blame liberals for their intolerance. Ask a black person, and she will tell you that "Steele is absolutely right to acknowledge that he has a lower margin of error than perhaps a white counterpart."

These responses were as predictable today as they would have been a week ago. Why, then, did Steele feel the need to go on national television to defend himself in this way? The only audience that makes any sense to me is fellow black and Latino voters. Could this be the latest effort on his part to court voters of color to the Republican party? Crazy as it may seem, this is the only way his interview makes any sense.

Black Elites' Increasingly Public Rift on President Obama: What Does it Mean?

When President Obama was candidate Obama one question that preoccupied many black intellectuals was whether his candidacy or eventual presidency would be good for the blacks.  Notwithstanding the tremendous amount of progress that African Americans have made in the last 50 years, experts who work in this area will tell you that African Americans lag whites in almost all areas of socio-economic well-being.  The question among black elites was : (a) whether candidate Obama should be viewed as just another politician and thus should be made to compete for the votes of black voters by stating explicitly what he would do to help narrow the myriad equality gaps  or (b) whether the tantalizing prospect of a black man becoming President of the United States was so significant that all black people should simply get in line and vote.  Black people did get in line and vote in overwhelming numbers and the question was trampled by the euphoria of having a black family in the White House. But now the dissension among the black elites is back and it is becoming increasingly public.

Obama and Race

Sheryl Gay Stolberg has written this article for the NY Times making the point that Obama's nuance on race is increasingly frustrating black leaders and black scholars. The question raised by the article (and a question that has been asked since President Obama was a candidate) is a normative one: what should be the relationship between the Mr. Obama and African-Americans.

After spending some time thinking about this question, my answer is the relationship should be viewed as one between a representative and his electorate. President Obama is right to constantly remind us that he is the President of the United States not simply of African Americans. his is good politics on the part of the President. But I also think that he is right.

African Americans are right to ask President Obama how his policies will benefit them, not because President Obama is black, but because he is the President. This is the same question that should be asked of every President, but more particularly, of those who owe their office in part to the support of the black community. Thus, the black community has no special race claim on the President.

Note however, that there are two sides to this coin. Black people were excited to vote for President Obama in part because he is one of them. Though most black people have more affinity for the Democratic Party, they did not turn out simply to vote for a Democrat. They were obviously excited to vote a black Democrat for President. Now that the President has clarified that the electoral connection, as opposed to the racial connection, is the lens through which he views his relationship with the black community, I wonder to what extent this will change the way the black community views the President.

Will black voters be excited to vote from President Obama again in 2012 because he's a black Democrat or will it be a case of "what have you done for me lately"? If black voters will turnout in strong numbers no matter what, then the President's current posture is brilliant. If however black voters are going to hold him to account, then he has to walk a fine line.

The BCS, Antitrust Laws and Politics

Back in October, Senator Orin Hatch wrote a letter to President Obama asking for a Justice Department probe of the Bowl Championship Series, the method currently in use to determine the national champion in Division I football. The Department of Justice acknowledged that it is reviewing the Senator's request.

I have three reactions to this.

The cynic in me wonders whether the federal government, and particularly the Department of Justice, doesn't have anything better to do with its time. Gone are the times when the Attorney General would go to Congress and explain that some federal laws would go under-enforced for lack of attorneys to enforce them (I have in mind here the debates over the Voting Rights Act back in 1965).

The college football fan in me hopes they succeed. For the life of me, I cannot understand the appeal of the BCS, nor do I, or anyone anyone, believe the arguments proffered by University Presidents against a college football playoff. The usual response is their worry that a playoff would cause too much disruption to the lives of student athletes. Tell this to college basketball players who participate in the three-week long basketball tournament March Madness -- or to the scores of student athletes who take part in playoffs for lower divisions within the NCAA, or those players who appear on ESPN night games on ESPN, some of which ended long after 11:00pm. The Presidents' want to tell us they care about the students, but their hypocrisy is too apparent.

The American citizen in me is tantalized. We know this much: Senator Hatch and President Obama do not agree on many things. After the recent State of the Union address, for example, Senator Hatch issued a statement labeling the President "stone deaf" for refusing to hear the American people on health care. He also called the President's budget for the fiscal year 2010 "simply awful."

And then there is college football and the BCS. For his part, Senator Hatch has been a longtime critic of the system. President Obama similarly said in 2008 that he was going to "to throw my weight around a little bit" to move college football towards a playoff.

Strange bedfellows, don't you think?

Maybe the BCS violates antitrust laws, maybe it doesn't. The real lessons, however, lie elsewhere. When the President reaches out to Republicans, as he recently did during a House Republican retreat, it might be a good idea to air their policy differences over a game of basketball, maybe touch football. Or perhaps they should debate our country's many problems while watching a football game.

Super Bowl Sunday might be a nice place to start.

The Birthers Come to Court . . . then what?

Was President Obama born in Hawaii, or wasn't he? And if he was, why can't he produce an original birth certificate?

I do not know where President Obama was born. Nor do I care.

But that is not the real question posed by those who challenge President Obama's birth status.


Assume for the purposes of this post that the "Birthers" are right and President Obama was not born in Hawaii as he claims. This would mean that he is not a "natural born citizen," and thus ineligible for his current office as required under Article II ("No person except a natural born citizen . . . shall be eligible to the office of President").

Would a federal court accept such a challenge to the president's status? No, really: would the U.S. Supreme Court remove a sitting President on the basis of a challenge to his citizenship?

Let me ask a different question: what if a recently elected President and Vice-President were from the same state? Under the Twelfth Amendment, they cannot both be elected. Assuming two candidates were in fact elected, would a court remove a newly elected Vice-President from office due to his residency status?

I seriously doubt it.

At the end of the day, you have to love the political question doctrine.