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Episode 43: Executive Orders

House Speaker John Boehner, the country’s most powerful Republican, says he’s going to sue President Barack Obama on behalf of the Congress for alleged misuse of executive orders.

Is Boehner's threat more of the same partisan Washington theater or a real constitutional crisis? 

"The House leadership is scrambling so hard to try to reassert some kind of actual leadership, that it’s I think awfully hard for most Americans to see really this in serious way as the Congress trying to defend its authority, says political science professor Phillip J. Cooper of Portland State University, and author of “By Order of the President -- Use and Abuse of Presidential Direct Action.”

Cooper points out that Speaker Boehner doesn’t have the authority to sue on behalf of Congress without a vote authorizing him to. These facts make it more likely that the would-be constitutional crisis will likely be reduced to a congressional kerfuffle.

But there are important questions at play here. On this week's podcast we ask, what are executive orders for and what can the president do with them? What’s considered out-of-bounds? Most importantly, why should we care?

Executive orders are written directives from the President of the United States to government departments and agencies. They detail how the law is to be implemented, often specifically citing the legislation the president is enacting. 

Other executive orders are based on the president’s general constitutional mandate to “take care that the laws be faithfully executed.”

Every president back to George Washington has issued Executive Orders. (Well, OK, the nation’s ninth president, William Henry Harrison, died in office before he could get around to issuing one, but most historians ignore this blip in the data.)

In the last century, most presidents’ orders have numbered in the hundreds. And the vast majority of them deal with mundane, unremarkable policy actions. The president might create a commission to study and combat organized crime, or mandate new protections for small business owners.

But from time to time, executive orders have been used to mandate government action that has much broader social impact - think Abraham Lincoln’s Emancipation Proclamation which freed southern slaves by executive order or many of Franklin Delano Roosevelt's New Deal programs which were established through executive orders. More recently, George W. Bush established the prison at Guantanamo Bay, Cuba, through executive order.

Presidents run into problems when they cross the line between executing existing laws, and crafting new ones. That’s what John Boehner accused Barack Obama of doing when the president delayed the enacting of portions of the Affordable Care Act by a year. Boehner’s threatened lawsuit over that executive order is what’s causing the aforementioned Congressional kerfuffle.

But before you decide to ignore the issue altogether, remember this, says Professor Cooper: “A Constitutional republic is supposed to operate under the supremacy of law. No man is so high he is above the law.” 

If we don’t keep a critical eye on how the president uses executive orders, he or she could slip into the habit of creating new laws rather than enacting existing ones passed by Congress.

Cooper reminds us, “Democracy is in the details,” and “there have to be some boundaries out there on power.”

Episode 42: Exit Interview: Rep. Jim Moran

Members of Congress are notorious for being tight-lipped about the details of the legislative process -- especially when they’re talking to journalists. In part this is because of the intense polarization of our day. It's also because lawmakers are wary of describing the kind of compromise and flexibility it takes to actually get legislation passed.

At the same time, the two-year election cycle in the House of Representatives and the narrow margin of control in both chambers makes for an environment in the Capitol of constant campaigning.

Sound depressing? It is for us, too. But luckily there are exceptions to the informational lock-down reporters face: Members of Congress who are on their way out.

Retiring lawmakers suddenly become great sources of honest information about how the legislative branch operates.

Today we’re introducing a new feature to our podcast and blog: “DecodeDC: Exit Interviews.”

In the next few months we’ll be interviewing some of the dozens of lawmakers who have announced their retirement at the end of this year. Our hope is to pull back the curtain on the congressional process, and, perhaps, collect some ideas about what could be done to get Washington back on track.

First up, Virginia Congressman Jim Moran, who is retiring with a long list of un-achieved priorities.

The 69-year-old lawmaker spent more than two decades passionately advocating for bedrock democratic issues, including stronger environmental protections, and the the closure of the U.S. military prison at Guantanamo Bay, Cuba. But as we begin our interview, the white-haired Virginia Democrat slumps into a leather sofa as if to hide from the world. Moran is burnt-out.

 In the past four years Moran has introduced six bills regarding Guantanamo Bay and eighteen bills dealing with animal or environmental protection.  None of them made it past committee consideration.

"It's been extremely frustrating because the presence of Guantanamo Bay serves as a recruitment tool and a rallying cry for those who would do America harm,” Moran says. He worries that the detention center undermines the values of the U.S. justice system. "We are founded on a principle that everyone is innocent until proven guilty.  That everyone should have the right to be represented in a legitimate court of law, that they can't be held without charges being filed against them."

In fact, Moran will leave Congress with few bills to his name and a dubious sense of accomplishment. Of the 298 bills Moran introduced since 1991, only nine passed into law. Of those, three renamed post offices. The most weighty of his legislative accomplishments is a law requiring that products containing traces of animal fur be labeled correctly.

"The Congress is not the institution that it was intended to be by the Founding Fathers, that it is expected to be by the voters of this country.  It is a dysfunctional institution right now.  It doesn't act on behalf of what are the best interests of the public. It's more inclined to act on what is in the best interests of its contributors."

Moran is only one of several dozen lawmakers who’ve announced their retirement at the end of this year. And his outlook for the future members of Congress is none too bright.

"I think that they're going to be all the more dependent on the money they can raise," he says. “I think that it's going to be even more messaging from the leadership rather than the following of their own course. I think things are going to get worse before they get better--and  I think that's very unfortunate."

Episode 41: Critical Infrastructure and The Next War

 

In the age of cyber warfare, security takes on new meaning. You may worry about your email or credit cards getting hacked. But government computer security experts warn of a different, and potentially much more dangerous risk, a cyber attack on the nation's critical infrastructure. That means power plants, oil pipelines, drinking water supplies, major ports of commerce, anything that American communities rely on to keep society running smoothly.

This critical infrastructure is increasingly operated by computers and special software called Industrial Control Systems. That means greater efficiency and much more convenience for many people. Advances in the so called "smart electricity grid" alone could save money and fossil fuels, as well as send more power to the parts of the grid that need it, when they need it.

But those sophisticated Industrial Control Systems are exactly what make the US more vulnerable, say auditors at the Government Accountability Office. Cybersecurity experts are increasingly focused on the computers that control our critical infrastructure. Consultant Perry Pederson told DecodeDC, "our concentration is trying to prevent bad things from happening. Not just loss of operation, but loss of life."

In DecodeDC Episode 41: Critical Infrastructure and The Next War, host Andrea Seabrook discusses the reality of our nation's cybersecurity, and what could be among the biggest vulnerabilities.

Episode 40: The Government Has Your Number

When hackers broke into the computers of top American discount chain Target Corp, it made international headlines. Cyber-criminals sucked up tens of millions of credit card numbers, email and home addresses, phone numbers and more, selling them on the blackmarket to reap untold millions of dollars in profits.

Target was forced to spend hundreds of millions in computer security upgrades, and much worse for the company was the loss of its customers’ trust. But what if you didn’t have a choice about whether to shop at a particular store, or whether to give an organization access to your identifying data? 

What if you were forced to turn over personal information that’s even more sensitive, like how much money you make, who you’re related to, and the names and ages of your children? And how would you feel if the organization collecting your data already had an incredibly poor track record for keeping that information safe?

Well that’s the situation most Americans are already in, and the organization that collects all our data is the United States Federal Government.

On this week’s podcast, DecodeDC examines the massive uptick in cybersecurity breaches in the federal government. Just a few years ago, in 2006, the government suffered about 5,500 data breaches. Last year that number was more than ten times higher; the government documented more than 61,000 security incidents.

There are lots of reasons why security is getting worse, not least of which is the fact that cybersecurity is a constant cat-and-mouse game, with professionals constantly trying to catch up with ever-evolving criminal schemes to breach government computers.

But it’s also true that the federal government is particularly bad at protecting data. With frozen salaries and Congress’s constant budget battles, the government doesn’t always have the resources to attract cybersecurity professionals with the expertise and experience to protect the massive treasure trove of data it collects.

Listen to our latest show, “Cybersecurity part 1: We’ve Got Your Number." and make sure you catch up with us again next week, when DecodeDC examines the vulnerability of America’s critical infrastructure to cybersecurity attacks.

Episode 39: Populisms New Popularity on the Right and Left

The words “populist” and” populism” have been ubiquitous on cable news talk shows and in the political press for the past couple of months.  This makes us at DecodeDC cranky.  The words, it seems to us, are being used in silly, nonsensical ways, sullying the great tradition of American populism.

One person’s populism is another’s demagoguery; there’s right-wing populists, centrist populists, libertarian populists and unpopular populists. As we covered earlier this week, it’s an etymological mess.

After House Majority Leader Eric Cantor lost his primary to Tea Party underdog David Brat, The Week warned “The peril of America's populist confusion.”

A few weeks earlier a headline in The New York Times  read “Obama’s Budget Is Populist Wish List and Election Blueprint.”

Populist Wish List? Obama’s budget, really?  How so, exactly?

The Times headline used “populist” as a synonym for liberal or progressive. There were some items in the budget to help the poor and middle class and there were some tax hikes for the one per cent crowd. Got it, but that isn’t populism.  It is liberalism. Indeed it is fairly moderate liberalism. But the Tea Party is also called populist.

So what exactly is populism?  Well, that is tougher to answer. 

In this week’s podcast, we search for a better understanding of the history of populism and its uses and abuses today.

For wisdom, we turned to Michael Kazin, one of our great historians of populism.  He wrote a book called The Populist Persuasion first published in 1995.  He also has written a biography of the founding father of American populism, William Jennings Bryan.

Kazin suggests understanding populism not as a specific political movement – or a series of movements. Rather, think of populism as a style of politics and rhetoric. It is a style that has been adapted over and over again over the last century by the right and by the left.

That original Populist movement – with a capital P – came in the late 1800s.  It coalesced around the People’s Party, primarily a movement of farmers crusading against bankers, railroads and the moneyed elite that became known as the Populists.  In 1896, the People’s Party embraced the presidential nominee of the Democratic Party, William Jennings Bryan.  The People’s party faded away. But Bryan and Populism played big on the big national stage for a long time, fueling Progressive Era reforms of the early 1990s, policies such as trust-busting and the progressive income tax.

Kazin maintains that Populism and later populisms share common elements. First, there’s a core belief in the idea of America and a government “of the people, by the people and for the people.”  Populism is not radical or revolutionary; it doesn’t seek to overthrow the Constitution or the government.  The next element is belief in the virtue of “the people.  Finally, there’s the notion  “the people” are oppressed by a powerful elite.

Populism has been associated with movements on the left and right.  Today, more people probably think of populism in a liberal or progressive context.  During the Cold War, it would have been more common to see populism as a right-wing force.

The details of “populisms”  are changeable but the word – populism – still has power and romance in American politics.

What populism does not have any more is a precise definition or proper usage.

Indeed, populism is often a buzzword that should alert the savvy political consumer to malarkey coming ahead. It is more often a term of spin, not straightening out.

When a headline writer at The New York Times thinks it would be biased to label the administration’s budget liberal, he calls it “populist.”  When a conservative pundit wants to accuse a Democrat of being of being too hard on the rich but doesn’t want come out and say so, “populist” becomes the word of choice. When liberals want to attack the Tea Party for being irresponsible and intolerant, they call them populists.

 So when you hear the word, alert the language police.