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A Crisis Republicans Should Not Waste

An Austen Chamberlain moment for the Democrats.

Apr 19, 2010, Vol. 15, No. 29 • By HADLEY ARKES
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It took but a short while to learn just how prophetic Chamberlain had been. The tensions within the new government forced a new election within a year. For the voters, the maze of issues faded against what Chamberlain had rightly seen as the momentous fact overriding everything else: socialism or not. With this stark choice before the public, the Conservatives surged to 412 seats, regaining their dominance. Labour fell to 151, but the Liberals sunk to the terminal condition of 40 seats. They had lost their place as one of the two major players among the parties in British politics. To this date there has not been another Liberal prime minister.

We could be at the threshold of a similar moment right now if the conservative leadership holds fast to its focus on repealing and replacing Obamacare. As Burke warned, refined policy is ever the parent of confusion. This is no time to be sorting through the provisions of medical care to see which ones might be salvaged. There will be time to piece things together later by building anew. The worst thing is to encourage people to get lost in the labyrinth of strands making up that bill of 2,000 pages. For the strands of complication recede when set against the takeover of a vast system that cannot possibly be grasped and administered under a system of command and control. The unforeseen consequences are already starting to dangle forth, with the changes in the liabilities of corporations. More of them will be coming, with more unsettling surprises, as the year proceeds. Let them come.

For most of the public, this has been a rare moment in which people can see what is plainly before them. Yet some conservative commentators continue to harp about how “Republicans lost their way” when they showed themselves willing to spend lavishly in recent sessions of Congress. But Republicans found themselves working within the framework that Lyndon Johnson had helped to build, where there is no longer any sense of constitutional limits on the projects that the federal government can support. If the government is building housing in cities, funding clinics for birth control, and projects in the arts, what are Republican congressmen to do? Leave these projects to sustain and enrich only the liberals who invented them and who formed their main constituencies? Are conservatives supposed to be so uniformly high-minded, so detached from self-interest, that their supporters cannot be encouraged by the same patronage that Democrats have found enduringly helpful? 

But put aside that record on spending, as grievous as it was at times. Was that really the only issue of moral consequence that was before the Congress when the Republicans were in power there? 

Republicans were in control of the Congress when the Supreme Court made audacious—even revolutionary—moves to extend the power of judges to review the actions of the military on the battlefield. It is hardly conceivable that a Democratic Congress would have moved as quickly and decisively as the late Republican Congress to counter the courts. In Rasul v. Bush in 2004, the Supreme Court held that the basic statutory grant of habeas corpus would now be available to detainees held at Guantánamo Bay. The next year the Republican Congress acted to alter the statute and remove the jurisdiction for federal judges that the Court had proclaimed. Congress offered instead a limited review in the D.C. Circuit. In 2006, in Hamdan v. Rumsfeld, the Court invalidated the military commissions set up by President Bush to prosecute terrorists. But the Republican Congress swiftly enacted the Military Commissions Act. Then Congress reenacted and broadened the preclusion of habeas corpus. The Republicans voted for that measure, 219-7. The Democrats voted against it, 160-34.       

Two years later the Court overturned the key parts of these legislative acts. The habeas jurisdiction would indeed be extended, and it would cover even the prisoners held outside the United States in Guantánamo. But now there was no longer a Republican Congress to challenge the Court. And without congressional support, the Bush administration lost its resolve to do what Attorney General Michael Mukasey urged be done: challenge Congress to provide guidelines and rules, rather than letting federal judges, armed with new power, make up the rules as they go along.  

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