america adrift

…and so must we all. Shameless indeed. There has been a disturbing resurgence of Jim Crow legislation around the country but Florida’s overt intimidation of civic volunteers is the most troubling. With gutted federal enforcement agencies and a conservative Supreme Court, it will take some serious grassroots momentum to turn the trend around. I won’t hold my breath on either McCain or the elite media.

In a 7-2 opinion by Justice Ginsburg handed down yesterday morning, the Supreme Court rebuked the draconian federal guidelines to consider the disparity in treatment between crack and powder cocaine. From the NY Times;

In two decisions, the court said federal district judges had broad discretion to impose what they think are reasonable sentences, even if federal guidelines call for different sentences.

One decision was particularly emphatic in saying judges are free to disagree with guidelines that call for much longer sentences for offenses involving crack cocaine than for crimes involving an equivalent amount of cocaine in powdered form.

The bipartisan U.S. Sentencing Commission reported; (via Daily Kos)

[T]he Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. … But the 100-to-1 ratio can lead to the “anomalous” result that “retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.”

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” [] Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

“The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.”

“Where in the Constitution of the United States does it say that the Congress decides how long people will spend on tours of duty and how long they will spend back in the United States? It’s blatantly unconstitutional,” McCain said. “The Constitution of the United States said Congress will declare wars and fund wars.”

Blatantly unconstitutional? McCain’s convoluted argument fits well with the theory of the “unitary executive.” Once congress (read the people’s representatives) grants authorization, the president can do whatever and for how ever long he/she deems necessary? Anyone who has taken a basic legal history or US constitutional law course understands that interpretation is always in flux. However, this sort of argument, which overwhelmingly favors the power of the executive over the legislature (and the judicial), defies any reasonable interpretation.

The Economist provides a nice concise recap on the AG resignation and related issues.

The battle over Mr Gonzales was one of the most bitter of Mr Bush’s second term, inflaming relations between Congress and the White House, eating up weeks of congressional time and leaving the Department of Justice a dysfunctional shell, with several of its top posts empty and the professional staff more demoralised than at any time since Watergate.

The Case for the Strong Executive via The Agonist
by Harvey Mansfield, Professsor of Government at Harvard

Under some circumstances, the rule of law must yield to the need for energy.

Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by Aristotle in the well-known passage in his “Politics” where he considers “whether it is more advantageous to be ruled by the best man or the best laws.”

from the typically conservative (pro Bush) Financial Times;

The founding fathers knew the dangers of an imperial presidency, so they gave Congress the job of reining him in. Now is the time for the legislators to start doing that job in earnest.