President Obama and President Hammond

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As Independence Day comes once more to America, we find ourselves with an administration that is laboring to become a despotism. Not content with making laws by executive order, nor abashed by a long series of rebukes from the Supreme Court, the president has proclaimed his intention of acting in defiance of Congress for the specific reason that Congress has refused to enact the laws he wanted.

The president recently summoned the speaker of the House and asked him when Congress would do his bidding on the immigration issue. The speaker said he saw no way of passing legislation this year. Probably he didn’t bother to state the fundamental reason, which is that no one trusts the president to keep his word about any executive actions mandated by legislation in this field (or perhaps any other). The president then announced that he would therefore proceed without Congress. Network news reported on July 1 that Obama had ordered his cabinet ministers to journey throughout the country, finding “creative means” of doing what Congress does not want to be done, not just about immigration but about every policy he wishes to effect.

This is a textbook definition of despotism — the executive acting in despite of an elected legislature.

Presidents have often exceeded their authority, but no other president has proceeded systematically on the declared principle of doing what Congress refuses to authorize, because Congress has refused to authorize it. Even Lincoln, who invaded the Constitution more dramatically than any other president, never proceeded on that principle.

The only precedent that favors the current chief executive is that of President Hammond, who in pursuit of his economic program went before Congress and said:

You have wasted precious days and weeks and years in futile discussion. We need action, immediate and effective action. . . . I ask you, gentlemen, to declare a state of national emergency and to adjourn this Congress until normal conditions are restored. During the period of that adjournment, I shall assume full responsibility for the government.

 When a congressman protested, asking, “If Congress refuses to adjourn?” Hammond replied, “I think, gentlemen, you forget that I am still the president of these United States, and as commander in chief of the army and navy, it is within the rights of the president to declare the country under martial law.” (For more about President Hammond, see Liberty, July 2010, pp. 21–29.)

The president has proclaimed his intention of acting in defiance of Congress for the specific reason that Congress has refused to enact the laws he wanted.

 

 That happened in 1933, when MGM released a movie called Gabriel Over the White House. In the movie, President Hammond is the hero. In his own mind, President Obama is a hero too. 

At July 4, thoughts customarily turn to heroes. Mine customarily turn to President Washington. Washington’s thoughts about a free government were somewhat different from those of President Hammond or President Obama. Take them as a gift of intelligent political thought, on this Independence Day:

It is important . . . that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield. (Farewell Address, 1796)




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The Congressional Killswitch

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Sometimes a story is just so perfect that the immediate response is suspicion, even skepticism, that such a thing could be. Even when backed by unimpeachable evidence, even to relate the story in another context, a reporter (this reporter, anyway) feels he must get the caveats out of the way, even at the expense of burying the lede, because it’s simply too easy to proceed any other way.

So then.

Eleanor Holmes Norton is a Delegate to Congress representing the District of Columbia in the House of Representatives. Though allowed to serve on committees as well as speak on the House floor, DC reps cannot vote on legislation and thus have only symbolic power—hence the District license plate legend, “No Taxation Without Representation.” Holmes was first elected to Congress in 1990 and has faced no substantive opposition to the renewal of her term since, nor will she until she retires.

Google is a very, very large company. Despite early attempts to avoid governmental entanglement, combined with a motto, “Don’t Be Evil,” that is warm and fuzzy by big-biz standards, Google is nonetheless one of the most politically involved corporations in the world, donating many millions to causes such as gay marriage rights and alternative energy sources—as well as to the Democrats, where such ideas are on the whole more welcome. However, in recent years (and in particular, after a potentially nasty antitrust suit) Google has been hedging its bets, courting the Republicans as well to make sure that whoever happens to be on top, Google can still prevail.

If they weren’t so quick on the killswitch, maybe Google wouldn’t need to spend so many of its resources lobbying for approval.

One of Google’s main ongoing projects is the creation of a driverless car—something that can hook into an overarching traffic grid and speed passengers to their destinations without the limitations of human frailty or curiosity: no more merge delays, no more fender benders, no more rubbernecking. Clearly hoping for congressional money to be shoved their way, Google hosted an event for the House Transportation and Infrastructure Committee to showcase their new toy. And as a ranking member of that committee, Holmes was not only invited along, but also given pride of place as the first occupant of the shotgun seat, with results I highly recommend you watch in the video on this page.

For no sooner does she sit down than she wrecks the whole show: “It says Emergency Stop,” she says, while tapping and then smashing a big red button marked with exactly those words. And the Google spokesman (and Carnegie Mellon engineer), trying valiantly to control his panic, replies “Oh, no, don’t press that, it shuts everything down, and it takes some time to, um, recover from that.”

And with all the above caveats out of the way, how perfect an image is this of how legislators interfere with progress in technology and markets? A company wishes to test out a new product, and instead of going to the customers to see if it will succeed, they must first kowtow to those in authority (the representative of all Washington, D.C., as a matter of fact), who promptly misunderstand the device and render it useless—and then have the gall to take some sort of perverse credit for the deed, as implied in the newscasters’ comment: “Norton does think that cars like that could have a future so long as they have safety features like that kill switch.” Thanks, Delegate! Without you we’d never have known how to murder promising technology in mere seconds.

As the further exchange shows, even as a constitutionally powerless member of the House, Norton can still cast a formidable shadow:

“And you know, if they ever get that started, it could be a cool little ride.”
“I guess it still needs a little work.”
“Still needs a little work, yes.”

But despite their gentle, demagogic mockery, the newscasters save for the end a shrewd observation, one that calls into question the very idea of a large-scale federal government: if you are to build such a thing, “Be careful who you put in it—Delegate Norton may not be invited next time around.”

Would that we could all disinvite Delegate Norton, and her 535 cronies actually charged with lawmaking in this country! If they weren’t so quick on the killswitch, maybe Google wouldn’t need to spend so many of its resources lobbying for approval—and the rest of us wouldn’t have to bide our time waiting for advances that would’ve been possible decades ago, apart from the reticence and hesitance of our so-called leaders.



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Iraq and Isolationism

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I have no wisdom to offer about the current crisis in Iraq; I’m simply immobilized by astonishment over the idea, still dominant in Washington, that the United States should arrange and enforce a united Iraq. But I do have some thoughts about libertarian attitudes toward Iraq and other targets of American intervention.

Isolationists — and almost all libertarians are isolationists of some kind — can take pride in opposing the intervention that overthrew Saddam Hussein. It would have been better for virtually all concerned in this mess if Saddam, lunatic fool that he was, had stayed on his throne. Then at least we might not have seen the victory, in one part of the country, of a corrupt Shi’ite authoritarianism, and the worse victory, elsewhere, of a mob of howling Sunni fanatics vowing to lock women in their houses and behead or crucify all opponents of their holy cause. They have already advertised on the internet the massacre of hundreds or thousands of captured and disarmed soldiers of the Iraqi government — the kind of atrocity that even Hitler concealed.

It would have been better for virtually all concerned in this mess if Saddam, lunatic fool that he was, had stayed on his throne.

But there is something about this situation that isolationists should consider more carefully than we usually do. There is evil, intractable evil, in this world, and the more we isolate ourselves from it, the more intractable it reveals itself to be. America’s gradual withdrawal from world military conflict allows us to see more clearly that this evil cannot all be attributed to America, or the West, or colonialism, or imperialism, or G.W. Bush or Barack Obama or even the accursed Lyndon Johnson. The enslavement of women in Nigeria is not an effect of Western intervention. The vile fanaticism of the Iraqi insurgents is not the result of Western intervention. The modern steel gallows on which the religious leaders of Iran hang gay men are not the effect of Western hegemony. Like the other things I just mentioned, they are an attempt to appropriate the material culture of the West and place it in the service of depraved native ideals.

When I see a sign that says “Live and Let Live” my heart leaps up. That is liberty; that is what I believe in. But I do not believe that most cultures in the world are based on that principle, or that they would be if we would simply obey it ourselves. Libertarian commentary on American foreign policy often creates the impression that the extended meaning of “Live and Let Live” is “All Will Be Well If You Do.” It won’t. There is evil in America, and by the same token there is evil in the rest of the planet, and plenty more of it — inexhaustible supplies, in fact. Isolation is not the road to utopia. It should be the road to realism.




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John Kerry Speaks!

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At many colleges and universities across this great land of ours, graduation weekend has just passed. Amid the festivities and regalia and good-hearted celebration, that meant the return of one of our most dreaded civic traditions: the commencement speech. For those fortunate enough to have avoided these in recent years, the commencement speech has become the chief opportunity for would-be public intellectuals to spout truisms and feel even more self-important than usual.

Case in point: one of this site’s favorite bloviators, John Kerry. Invited to speak at Yale’s Class Day, presumably on the strength of his sterling undergraduate record, Kerry produced a masterpiece of vacuity, making a case for how urgently the students needed to trust their “instutitions,” by which he meant the government. In addition to the expected lame jokes and the kinds of cultural references that dads make to try and pretend they’re still cool, Kerry indulged in his habitual verbal offenses:

  • word salad, such as rallying students to “galvanize action to recognize felt needs” (translation: “we need to spend lots of money meddling with people”);
  • doublespeak, such as “We cannot allow a hangover from the excessive interventionism of the last decade to lead now to an excess of isolationism in this decade.” (translation: “especially meddling with people in other countries”);
  • bumper stickerism, such as “None of our problems are without solution, but neither will they solve themselves” (translation: “our meddling can solve anything”); and
  • dubious assertions, such as “Participation is the best antidote to pessimism and ultimately cynicism” (translation: “never doubt even for a moment that meddling isn’t the right thing to do”).

Thing is, by graduation-weekend standards, Kerry’s speech is only half bad—I’ve survived much worse. What’s happened this year that has given me hope is students finally getting fed up and fighting back. At a number of schools, the student body banded together to reject the speaker being foisted on them. This move has brought howls from the sorts of writers who hope themselves one day to deliver commencement addresses. But why submit yourself to listening to a half hour from an architect of the Iraq War, like Condoleeza Rice, or a defender of forceful police coercion against nonviolent student protestors, like Robert Birgenau, if there’s any alternative? Graduations are a time for students to celebrate with friends and family, a chance to reflect on years past and look forward to years future. Nothing about that requires the importation of big-name outside speakers—especially those whose fame depends on the degree to which they’ve intruded themselves into the lives of others.



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Vox Populi

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At almost every really snazzy party I’ve been allowed to attend during the past few years, the conversation lagged until one among the elegant guests brought up American Idol — the TV show on which people compete by displaying the “skill” of shrieking in falsetto voices and manifesting faux emotions. As soon as that subject was introduced, everyone became enthusiastic. At last, they had something to share. Everyone, it seemed, was rooting for one or another of the contestants, although there was general agreement that all of them were wonderful and deserved the highest praise. This was enough to dash any illusions I might have harbored about the cultural level of the wealthy and powerful.

Imagine my horror when I found that someone named Clay Aiken was running for Congress and attracting attention, for no other reason than the fact that he had been a contestant on American Idol. What next, I thought — Hillary Clinton running for president?

On May 13, the electorate of North Carolina — working folks, mostly, not members of the mentally idle rich — laid my fears to rest. At least my fears about Clay Aiken. The media, ever zealous for the cause of Democrats, heralded his victory in the Democratic primary. What many stories didn’t mention was that he won by a mere 400 votes, beating a man who had died the day before.

Aiken may not get elected.

In fact, he will not get elected. His Republican opponent, now running for a third term, got 56% of the November vote last time. Even if she dies of campaign injuries, she’ll stand a very good chance of beating him.

As for Hillary — even if the Republicans nominate a dead man, which they probably will, chances are she’ll get beat.




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Imagined Community

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Fudan University, Shanghai: Photograph by Joseph Ho

Fudan University, Shanghai: Photograph by Joseph Ho




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Equal Pay for Equal Work

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Once again equal pay for men and women doing presumably equal work has become a live political issue. If Congress can achieve fair pay by passing still another law, why not?

But what is equal work? Is it the same numbers of hours spent? Is it work in the same industry or other category, broadly or narrowly defined?  Is it work typically done by people with similar levels of education as proxied by diplomas and degrees? Are what economists call “compensating differences” unfair — differences in pay for work considered particularly risky or boring and work found attractive in itself? More plausibly, does fair pay mean equal pay for work appearing to promise the same addition to the revenue or profit of a business firm? If so, as judged by whom? Without attention to availability, productiveness, and costs of materials, energy, and other things bought, including the many kinds of labor, a firm would go broke.

More equal-pay legislation will add to the burdens already borne by business firms, perhaps especially small businesses.

An economic system coordinated otherwise than by market transactions and the interplay of prices, profit, and loss would be very different from the system that has brought prosperity to the Western world. A market economy puts to good use vast amounts of knowledge both specific and widely dispersed. This knowledge, as well as informed conjectures, exists in the minds of millions and billions of consumers, employees, job candidates, entrepreneurs, and owners and managers of business firms and other organizations. Knowledge of how to conduct and mesh their activities simply could not be centralized for effective use by planners and regulators. The writings of Mises and Hayek (and, earlier, Henry George), reinforced by experience in Communist countries, have taught us this lesson. Even if, per impossibile, this knowledge could be centrally deployed, politicians would have incentives to disregard much of it.

Business owners and managers, sometimes aided by specialist consultants, can best judge how to structure their workplaces and employ the people most likely to contribute to profits. Supply and demand interacting on markets, including the labor market, contribute to these judgments. Business losses tend to weed out bad judgment of these kinds, while profits tend to reward good judgment.

Employers must judge how likely employees or job candidates are to fit in well with their businesses. How likely is a person to be available for working long or irregular hours on short notice or for shifting among assignments and geographical locations? How committed is the person to a career, or how likely to quit or interrupt work for family or other reasons or to request many hours or even months of paid or unpaid leave? How likely is the person to generate profitable new ideas? How likely to get along well with customers, colleagues, and supervisors? Or how likely to prove obnoxiously litigious? A good matching of jobs and employees benefits all concerned.

Realistically, of course, employers cannot have all the detailed and ineffable knowledge necessary for ideal decisions. They must make judgments based on categories, experience, probabilities, statistics, and hunches, and perhaps sometimes even on stereotypes. These regrettable gaps in knowledge are not blameworthy or avoidable, although detailed experience and practiced intuition may shrink them. The system of markets, profit, and loss tends, at least, to reward or punish good or bad business judgment; nothing similar weeds out bad legislation.

Government regulators drift into thinking that their own work is important.

More equal-pay legislation will add to the burdens already borne by business firms, perhaps especially small ones. These will include the burdens of keeping records of and reporting on job interviews held or not held, performance reviews, job categories and modifications, and innumerable other things. Risks compound the burdens, including risks of being second-guessed about honest judgments and of dubious statistics being manipulated to infer violations of rules even in the absence of evidence. Government regulators drift into thinking that their own work is important and into eagerly receiving and investigating complaints. Aggrieved employees have additional ways to browbeat their employers by threatening to file complaints or lawsuits. Opportunities for lawyers multiply.

The burdens placed on job creation are heavy already. They apparently help account for the disappointing growth in employment as recovery from the recession continues only sluggishly.

Yet far from being morally obliged to bear such burdens and risks, businesspeople are under no obligation to be in any business or hire any workers at all. Even employing job candidates willing to work for less pay than others appearing similarly qualified is a service to workers and the public (even if a less noble service than one might wish). Employing anybody increases the scarcity value and the job and pay prospects of the rest of the labor force. Employers practicing discrimination unrelated to the value of employees’ work suffer the penalty of reduced profit and lose ground to firms showing sounder business judgment.

Speaking of fairness, how fair is it to draft businesspeople more and more into unpaid and thankless service as social-welfare agencies and as scapegoats?

Making a political issue of “fair pay” expands opportunities for politicians and demagogy. It illustrates how superficial bright ideas can get casually inserted into laws, notably into laws running hundreds or thousands of pages. As Thomas Sowell has explained, being both economically literate and honest is a disadvantage for a politician. (An economically illiterate one can honestly advocate bad but popular legislation, while a dishonest politician may gain votes by concealing his economic understanding.)

My message, in summary, is dismay at ignorance or disregard of how essential using widely dispersed specific knowledge is to a prosperous economy.




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One State in Palestine

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Seldom am I inclined to support a member of the Obama administration, but Secretary of State Kerry deserves defense against abuse for mentioning the unsatisfactory alternatives to a two-state solution in Palestine. If the single state allowed equal political rights to all its inhabitants, the Arabs would outvote and outbreed the Jews and deprive the state of its distinctively Jewish character.

Isn’t that obvious and worth recognizing? Kerry was arguing for two states, not a single state with apartheid.

The word “apartheid” may be an unfortunate term for inequality of rights. If so, let the critic suggest a better one. Meanwhile, we should recognize that words often do get applied beyond their original uses. This stretching can be forgivable and even useful, as it is in Kerry’s case.




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Not with a Bang, but a Whimper

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The most recent news on the UAW’s attempt to unionize the VW autoworkers in Chattanooga, Tennessee is interesting.

Despite enormous advantages, including the Obama administration’s blatantly partisan efforts to game the game in favor of the UAW, the union lost the vote. The union that nearly destroyed the American automakers, gleefully driving two of them into bankruptcy — a bankruptcy that ripped off taxpayers for tens of billions of dollars and left one of the companies merely a division of the Italian automaker Fiat — couldn’t overcome its unsavory reputation and convince the workers that it wouldn’t destroy their jobs and city as well.

That was in February. Immediately after the vote, the UAW filed an appeal with the Obama-rigged National Labor Relations Board (NLRB), even though it had earlier said it would abide by the will of the workers. But just before the deadline for its lawyers to appear and argue for voiding the vote, the UAW dropped its appeal. It turned tail and ran.

This capitulation came as a surprise. The union had aggressively pursued the plan, issuing subpoenas against the Republican governor of the state, Bill Haslam, and one of its Republican US senators, Bob Corker, to turn over their staff emails regarding the election, under the theory that the two men wrongfully influenced workers to oppose the UAW. The theory, then, is that the UAW is free to spend tens of millions of its members’ dues every election cycle to defeat Republicans, but the targets have no right to criticize the UAW in return. The UAW is nothing if not fair.

One of the workers who organized the vote against the union, Mike Burton, admitted that he couldn’t explain why the UAW gave up so easily. UAW president Bob King would only say that his outfit wanted to put the “tainted election in the rearview mirror ... and focus on advocating for new jobs and economic investment in Chattanooga.” But the real explanation was suggested by the Wall Street Journal in an editorial from the same day, namely, that even if the NLRB ordered another election at the plant, the UAW would very likely have lost it — making the union look even worse. The editorial also suggested that the UAW may have been afraid that anti-union workers would sue it for violating the Taft-Hartley Act, which prohibits a company from giving a “thing of value” to any union seeking to organize its workers. This VW clearly did by giving the UAW the right to voice its arguments in the plant while denying the same right to the anti-union workers.

I would add the speculation that — given the recent revelations that GM knowingly covered up defects in its cars, defects that killed a number of people, while it was grabbing billions in taxpayer dollars in the bankruptcy operation — the UAW probably fears reminding people that it was behind the crony deal.

The latest defeat for the union comes on the heels of the failure of its drive to organize workers at a Canton, Mississippi, Nissan plant, and its lack of luck so far in organizing the workers at the Vance, Alabama, Mercedes-Benz plant.

These failures couldn’t happen to a more deserving bunch.




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How Do You Solve A Problem Like Cliven Bundy?

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Robert Duvall was born to play Cliven Bundy. The story of Cliven Bundy’s stand against the federal government has all the components of a great movie, except one: we don’t have an ending. Will it end in tragedy like the Branch Davidian standoff outside Waco, or will the ending be triumphant and peaceful?

If you haven’t followed the story, here’s a summary: Cliven Bundy’s family started its ranch northeast of what is now Las Vegas in 1877. Their cattle have grazed on the surrounding government land ever since. In 1993, the Bureau of Land Management tried to buy Cliven’s grazing rights to protect the desert tortoise. Cliven refused to sell. Then the BLM revoked the grazing rights. Cliven never applied for them to be renewed, and his cattle continued to graze on the land. The courts upheld the revocation of the grazing rights, and last fall gave Cliven 45 days to remove his cattle from government land. He didn’t remove them. The fines and fees that Cliven owes now total more than a million dollars. On April 5, 2014, the BLM began an operation to seize Cliven’s cattle. BLM Law Enforcement Rangers and Special Agents came, as did people who sympathized with Cliven. An armed standoff followed. On April 12, the BLM decided not to execute the court’s order, citing a “serious concern about the safety of employees and members of the public.” (The above is gleaned from Jamie Fuller’s April 15 post on the Washington Post blog “The Fix.”)

On April 14, on KRNV television in Reno, Senate Majority Leader Harry Reid of Nevada told reporter Samantha Boatman, "Well, it's not over. We can't have an American people that violate the law and then just walk away from it. So it's not over” (MyNews4.com).

Senator Reid’s has asserted that people can’t be allowed to get away with breaking the law. The assertion is, of course, false.

If Harry Reid says that it’s not over, you can be pretty sure that it’s not over. But what to do? Viewed strictly as a legal matter, Cliven’s an outlaw. To many Americans, however, Cliven’s cause appears to be just; to some, it’s worth fighting for. Even if you set aside accusations of nepotism against Reid and family, the influence of Chinese money, and the manipulation of the EPA, Cliven has many supporters who simply believe that the federal government has grown too big for its britches. With the addition of these viral accusations, proven or not, the number of supporters grows, as does their enthusiasm for the cause. How is this problem to be solved without bloodshed? I think I know a way. (To find out more about the allegations, start here.)

The solution lies in Senator Reid’s assertion that people can’t be allowed to get away with breaking the law. The assertion is, of course, false. People are allowed to get away with breaking the law. An example comes to mind.

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano, sent a memo to three of her underlings telling them that illegal immigrants with certain characteristics would be allowed to have work permits and a renewable two-year deferral of removal from the country. On that same day, President Barack Obama announced the change on TV from the lawn of the White House. It was thought at the time that about 800,000 people who had entered the country illegally would benefit from this memo, which was referred to as an act of prosecutorial discretion. (A summary of that act and an overview of prosecutorial discretion can be found in my earlier Liberty piece “Prosecutorial Indiscretion.”)

So. President Obama has shown Senator Reid the way to a triumphant and peaceful ending. All that needs to happen is for the Secretary of the Interior Sally Jewell to send a memo to the Director of the Bureau of Land Management (Neil Kornze, Senator Reid’s chief aide until March of this year). The memo need only say that Cliven Bundy is to be allowed to have his grazing permit back and that all fees and fines levied against him are forgiven. To make things “just so,” President Obama would have to announce this act of prosecutorial discretion on the White House lawn. I think the President could be convinced to play himself in the movie.

Fade to black




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