.: I Respectfully Dissent :.

A few words on immigration

I don't normally comment on the imigration debate, but this post by Richard Posner seems to demand a few words. Posner writes:

There is antipathy to "rewarding" legal immigrants, who have jumped the queue of people trying to immigrate to the United States -- a queue that can take many years to get to the head of legally. But what is the alternative? It is not feasible to deport millions of people from the United States, and those who would like to do this should accept as a second-best solution regularizing the status of the illegal immigrants.

Surely this is a false dilemma. If we accept, for the sake of argument, that it is not feasible to round up and deport the illegales from the United States, does it follow that the only solution (or even the next-best solution) is to regularize their status? Is it not also feasible to suggest that, instead of focussing on coralling the illegales themselves, going after the incentives that bring them here and keep them here - viz., employment - will produce the same effect? Posner seems to recognize this when he says:

if any clandestine entry into the United States were punished as a serious crime, and if the employment of an illegal alien were made a federal felony with a mandatory minimum punishment of 10 years in prison, the problem of illegal immigration would be solved more or less overnight, and the millions of illegal immigrants would be on their way back [home].

Remove the cheese, and the mice stop going near the trap.

Posner goes on to suggest (presumably to deter such a resolution) that "[t]his exodus . . . would disrupt the econom[y] . . . of the United States." Posner is surely correct, prima facie, that disruption would attend such an exodus, were it carried out rapidly or even if carried out slowly. However, what I am unpursuaded of is that this can be avoided, no matter which direction we tack; the low wage economy ship has slipped its moorings and is headed at some speed towards the horizon. As I have pointed out before, the "low wage economy depends on them" argument fails. That argument, as I see it, goes like this: the economy depends upon immigrant workers, so deporting them would have an adverse effect on the economy. But unpacking this argument seems to reveal a flaw: it is an argument for the status quo, wherein illegal immigrants toil away for a pittance. But it has now become apparent that the status quo is untenable, and will be resolved by one means or another. Either the Tom Tancredos will get their way, in which case the illegales will be deported and further immigration prevented (meaning that the supply of cheap labor will disappear), or the George W. Bushes will get their way, in which case the illegales will have their status regularized, they will fall under the usual labor laws (principally, for our purposes here, the minimum wage), and thus, the demand for their labor will disappear, because the incentive of hiring them for a pittance no longer applies.

Personally, I tend to think that businesses hiring illegals (that is, those who fail to take reasonable steps to assure themselves of the status of their employees) should be penalized heavily: I believe in the efficacy of the market, I believe in the rule of law, I believe in fair play, and I don't believe in subsidies. Failing to enforce immigration laws distorts the market and penalizes law-abiding companies by unfairly subsidizing companies that break the law. Quadruple word score.

Lastly, Posner notes that "it [is not] clear that the people waiting patiently in the queue are 'better' people or would be better Americans than the illegals." I cannot agree. The people who are waiting patiently in that queue have not broken American laws to be there; merely to be an illegal immigrant displays a disregard for the law which would prevent someone from being admitted legally.

Posted 16:26, 5/26/2006 by Simon | Filed under: Immigration | Comments (2)

Way off topic

for some reason, I love this:
http://atlasshrugs2000.typepad.com/atlas_shrugs/2006/05/iraq_loving_thi.html

There's something very neat in the idea that thousands of miles from home, our folks in Iraq are still finding ways to take home with them.

Hat tip: Lorie Byrd.

Posted 09:48, 5/23/2006 by Simon | Filed under: Default | Comment on this

Cuno and removal of cases to Federal courts

The Supreme Court this morning decided DaimlerChrysler v. Cuno; you can read our Fearless Leader's opinion for the court here (PDF warning).

As a matter of law, the ruling in Cuno is certainly correct: the Court held that the plaintiffs lack standing to challenge in Federal court a tax credit offered to the defendant by the State of Ohio. The thing is, the plaintiffs knew all along that they lacked Federal standing, which I might suggest is fairly strongly hinted at by the fact that they didn't file suit in Federal court: they filed suit in state court, where they may well have had standing. However, 28 U.S.C. §1441 et seq. permit defendants to remove certain actions filed in state court that would otherwise be within the jurisdiction of the Federal courts

Ann Althouse lays bare the grizzly chronology of this case here:

It's hard being a plaintiff who:

1. files a case in state court,

2. has the defendant remove the case to federal court,

3. moves to remand the case on the ground that you don't seem to meet the requirements for standing in federal court,

4. loses that motion,

5. litigates the case in federal court and ultimately wins in the Court of Appeals,

6. has the Supreme Court grant certiorari and now must argue that you do have standing in order to preserve the victory, and

7. loses when the Supreme Court decides that you don't have standing.

I would not have had the Court rule another way, but I would suggest that it behooves Congress to dust off Chapter 89. Specifically, the totured chronology of this case does seem to be the poster-child for including in §1445 - which defines actions that are not removable - to include cases where plaintiffs would lack standing in federal court.

Granted, I do not yet have specifics in mind; requring both parties to assent to removal would surely remove the problem, although a solution so drastic might turn out to be curing cancer by shooting the patient. Perhaps such a proposal could be watered down by requiring mutual assent in some classes of action while permitting single-party removal in others. Or, perhaps the discretion of the trial court to accept removals should be statutorily constrained in some manner, such that the defendant has to surmount a relatively heavy burden of proof that the plaintiff has standing to get into Federal court. Or perhaps the standard for a §1447(c) remand could be lowered. There are many ways - none free from problems - to attack this problem, but the point is: I'm open to pursuasion on the details, but the underlying problem, the need for change, seems glaring. It simply cannot make sense as a question of normative best-practise that a plaintiff can escape a legal challenge by forcing the defendant into an alternative court where they may well lack standing to bring the suit. This seems to be an admittedly more constrained, but none-the-less more obnoxious, version of forum shopping for defendants.

If the argument to amend §1445 did not exist before Cuno, perhaps because the question of standing was fuzzy, surely this bizarre loophole through which some defendants can escape is now brought into sharp focus, and as demonstrated by this case, §1447(c) - which allows plaintiffs to ask the district court to remand the case back to the state courts - is clearly an inadequate protection for plaintiffs. Right now, faced with a ghastly situtation as were the plaintiffs in Cuno, where they knew they lacked standing but couldn't pursuade the district court to send it back to the state, the only possible escape route for a plaintiff in such a case, might be a disingenuous run on §1447(3), and even that escape route is as likely as not to be unavailable in given circumstances. As the rules stand, though, some defendants faced with an otherwise unwinnable case have an and obvious loophole through which they might escape with the assistance of a single friendly (or even, not outright hostile) Federal judge.

I feel compelled to ask: what is the argument for allowing the defendant to remove the action to a venue where the plaintiffs probably lack standing? Or perhaps I can put it this way: is there a really good argument against amending §1445 as I described above?

Posted 13:55, 5/15/2006 by Simon | Filed under: Legal theory | Comments (3)

The NSA data mining program and 18 U.S.C. §2702(c)(4)

As we all know by now, the existence of a new NSA data mining program has come to light. The premise, as I understand it, is that various telcos (ATT, BellSouth, Sprint and Verizon by current count; Verizon is the first to be sued over it) were asked by the government to provide logs of which telephone number was connected to which other telephone number, and the NSA will then analyze that data. I have no beef with this project, on a normative level, and because this is non-content based, there is no Fourth Amendment question on the table (contrast the previous NSA program to come to light, which certainly raised those issues, although I think the border search exception amply satisfies such concerns). What isn't clear is that the telcos that agreed to hand over the records didn't violate Federal Law.

18 U.S.C. §2702(a)(3) prohibits:

a provider of remote computing service or electronic communication service to the public . . . [from] knowingly divulg[ing] a record or other information pertaining to a subscriber to or customer of such service (not including the contents of [those] communications . . .) to any governmental entity.

(Don't panic - the disclosure of the contents are prohibited in foregoing sections). The best hope of the telcos for getting out of this one (aside from the not insubstantial question of whether or not anyone has standing to challenge their action) is the exemption contained in §2702(c)(4), as amended by the Patriot Act Renewal Act (see 120 Stat. 202) which says:

A provider . . . may divulge a record or other information pertaining to a subscriber to or customer of such service . . . to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.]

(Emphasis added). Orin Kerr - to whose expertise we turn in such times - thinks there's mileage in this, but bluntly, I'm not convinced that this gets the telcos anywhere. Noting a change in the language when the Patriot Act was reauthorized, Orin says:

The new exception states that disclosure is permitted “if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” Few people were paying attention to this change at the time, but I would guess that it was very important to the telephone companies: The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an “immediate” danger

This is all true, but it isn't the focus of my concern; my problem is that this is supposedly an emergency exception. As a commenter to Orin's thread concisely puts it:

It seems that the rationale behind the emergency expection is to permit disclosure when a disclosure is needed without any delay - when there is insufficient time to obtain a warrant or legislative authorization, for example. It does not seem plausible that the intent behind the third emergency exception is to permit the government to undertake an on-going, systematic monitoring program that will last in perpetuity . . . A PERPETUAL “emergency” with a NEVER-ENDING “immediate” need - that would be quite a troublesome interpretation of such statutory provisions.

Precisely. Even if we give a broad reading to the term “any person” in §2702(c)(4), that does not narrow the focus of the exception; it seems to admit only an exception when exists a good-faith concern of imminent harm to an individual, or perhaps in some circumstances, a specific and narrowly-drawn group, which would otherwise seem the more natural readings of the term "any person" in this context. Surely it would take a fairly broad reading of the term “emergency” - one that classified the threat of terrorism as an emergeny, rather than an ongoing threat - for §2702(c)(4) to apply? An emergency is “something dangerous or serious, such as an accident, which happens suddenly or unexpectedly and needs immediate action in order to avoid harmful results.” A terrorist attack may become an emergency when it happens or is imminently going to happen, but is it really an "emergency" in the plain meaning of the term when there is simply the ongoing possiblity of it happening? Is the presense of a nuclear reactor in a town an “emergency” because there is an ongoing possibility of meltdown? Or does it only become an emergency when a meltdown either happens or takes on an imminent and immediate likelihood of happening.

It just doesn’t seem as if a permanent, ongoing background terrorist threat falls into the kind of “emergency” that the normal use of the language in the §2702(c)(4) exception covers. The government is probably fine, but the telcos could be in a bit of trouble here.

One thing I'd add is that, as mentioned before, §2702(c)(4) isn't some dusty, obscure or archaic statute; this is language that Congress revisited - and amended, no less! - scant months ago. I suspect that the reason for the change was to accomodate the program that we now know about, and I frankly have very little doubt that if Congress had known about this program, it would still have authorized it. Yet, perhaps because this administration is chronically addicted to secrecy - even to the exclusion of Congress - it has shot its allies in the foot. Surely, had Congress known (on the record or off) about this program, it would have made sure that the telcos were protected for (I'll be the first to say it) their wholly admirable and patriotic instincts; yet fumbling in the dark, what could we expect? The net result is that the law doesn't adequately reflect the realities of the program, and it's certain that there is a big platter of litiation on its way as a result. The pathological determination to shut Congress out of the actual business of government - at all costs, including this one - is possibly the worst and most counter-productive feature of this administration.

Update: bad news for folks who hold stock in the companies who handed over the records; Think Progress makes the case that §2707 basically hangs the telcos out to dry.

Posted 22:37, 5/12/2006 by Simon | Filed under: Legal theory | Comment on this

More on the midterms

Peggy Noonan has an good column in the WSJ talking about the same sort of thing I was mentioning earlier in the week.

Posted 16:59, 5/12/2006 by Simon | Filed under: Elections: 2006 | Comment on this

Signing statements

After a recent discussion in comments at another blog, I feel rather like pointing something out about signing statements.

This administration, of course, is into signing statements in a big way, and frankly, I can see why they make people uncomfortable: it seems readily apparent that this administration is very keen to expand the power of the executive at the expense of Congress, a project of whose merits I am highly sceptical, and two of the devices it has chosen to accomplish that goal are the unitary executive theory and extensive use of signing statements. However, while I think people may well be right to be concerned about the frequency and extent of the use of signing statements by this administation, there is a tendancy among some to carry this even further, and to question the basoc legitimacy of signing statements.

I've talked before about the unitary executive (see About the unitary executive and settled law, 1/11/06) so let me address a few words for those who fall into the group I identified above, who have concerns not only about this President's use of signing statements, but about signing statements in general.

I
I want to approach this be offering a hypothetical, and we'll start simple. The basic question is: can the President decline to enforce an unconstitutional law? Or, perhaps more aptly, the question is whether, in the absence of clear Supreme Court precedent on the question, the President may exercise judgement as to the constitutionality of a statute.

Let's start by stating some propositions that are assumed to be axiomatic:

"An act of the legislature repugnant to the constitution is void," as Marbury says;
The President has a duty to faithfully execute the laws, per Art.II §3, but also takes an oath of office to "preserve, protect and defend the Constitution of the United States," per Art.II §1.
When acting under the presentment clause, a President can veto a bill for any reason he chooses, and one of the more legitimate reasons to veto a bill is because he doubts the constitutionality of the measure.
When the Supreme Court has deemed a statute unconstitutional, the executive has no obligation to execute that statute (indeed, he has a duty not to), because being repugant to the constitution, the statute is not a law.

Now, suppose that there is a given law in existence when the President takes office, which the Supreme Court has not yet ruled on (perhaps no one can muster standing to challenge it) but it is clearly unconstitutional. The original statute passed by Congress, the "Help America Write Catchy Statute Titles Act (HAWCaSTS), 206 Stat. 12575, has three chapters: chapter one defines and sets a punishment for piracy, and is codified at 18 U.S.C. §1652, chapter two appropriates money to pay salaries for the United States Navy, to the tune of several billion dollars, while chapter three created 18 U.S.C. §2381(a) to punish treason by creating the sentence of the shunning of the traitor's family: the executive will ensure that no children of a convicted traitor ever recieve federal money, and will carry signs around their necks identifying themselves as spawn of a traitor for the rest of their life.

Obviously, chapters one and two are constitutional, because they fall into the explicit grants of Congressional power in Art.I §8, and equally obviously, chapter three is unconstitutional, since it violates Art.III §3. Keep in mind when answering the following question: the Supreme court, for whatever reasons, hasn't reviewed the case. In your opinion, can the President refuse to enforce §2381(a) on the grounds that it is unconstitutional, even absent a ruling from the Supreme Court saying so?

The answer, or course, is yes. Not only can the President refuse to enforce §2381(a), it is arguable that he has a duty to do so, as the Clinton Administration argued:

in Myers v. United States . . . the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring) . . . [moreover, ] consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional . . . and numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice.

Now, let's take the hypothetical a little further. Having agreed to the proposition that the President can refuse to enforce §2381(a) standing alone, remember, this is all one statute we're talking about and presently this is a statute enacted and signed into law before this President came into office. With that in mind, can the President still refuse to enforce §2381(a) while enforcing §1652 and paying the sailors wages provided for by chapter two?

The answer, in my view, is yes. And of course, it would be absurd to suggest that the President can only do so sub silentio; if she believes that §2381(a) is unconstitutional, and has no intention of enforcing it, she can say publically that she will not enforce §2381(a). But the import of this should be clear: if a President (who did not sign the bill) can refuse to enforce §2381(a), the President is refusing to enforce one part of our hypothetical act of Congress while continuing to enforce other parts of the same act of Congress.

If you can agree that this much is fair game, it surely becomes a less daunting step to get to signing statements, to which we turn next.

II
Pause for two more axiomatic points. First, a President who believes that a piece of legislation presented to him is unconstitutional in whole is obligated by his oath of office to veto the bill. (In point of fact, this is actually the worst thing that one can say about Bush: he signed the McCain-Feingold bill while claiming that he believed it was unconstitutional). Second: not every challenge to legislation is a facial challenge (see United States v. Salerno, 481 U.S. 739, 745) (1987) (in a facial challenge, plaintiff "must establish that no set of circumstances exists under which the Act would be valid . . . [That a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid"); sometimes an otherwise constitutional piece of legislation can be unconstitutional as applied to a particular situation or person.

We've also been dealing with an example where the President was not asked to sign the law; it was in force before she took the oath of office. Suppose our fictional President is now presented with a bill similar to the one we were using in our earlier hypothetical, HAWCaSTS. In so clear-cut an example, the President should simply veto the whole thing, and send it back with the stipulation that she will sign it when chapter three is removed.

But what about a less extreme example? Our hypothetical is pretty extreme in its detail; chapter three is so obviously unconstitutional as to be a reductio ad absurdum (although it should be noted that the principle still holds true in less extreme hypotheticals, as I intend to show). What about a statute presented to the President for their signature which contains six thousand clauses in three hundred pages; 5,996 of those clauses are simple, straight forward, self-explanatory and self-evidently constitutional. But the four clauses that comprise §283(a) are ambigious: they could be interpreted in two ways, one of which is arguably constitutional, the other one is arguably not constitutional. It's a close call. Now what?

Should the President reject the statute in toto? Well, the idea of comity between the branches is not just something that exists between the Court and the Congress; the Congress has implicitly declared its belief in the constitutionality of those clauses by passing the statute. Deference to Congress in such a circumstance, when the call is close, is surely one valid strategy when the situation isn't as clear cut as our nice, clean, obvious Althouse-approved hypothetical above, don't you think?

Now, if you can accept all the foregoing, doesn't it seem to stand to reason that a President who accepts the bulk of a statute, but believes one or two bits could be interpreted in more than one way, is entitled to sign the law while saying that he - without binding his successors to the same interpretation - will construe the unclear clauses in a manner he believes to be consistent with the Constitution? There's a well known canon of construction that holds that "if a statute is susceptible to more than one reasonable construction, courts are to choose an interpretation that avoids raising constitutional problems." Why just courts? Why not the President, too?

* * *
To be clear, I am not defending a specific use of signing statements by any given President. My point is only that it is overreaching by desparate shrubophobes to generalize their disagreement with the President's objectives into disputing his chosen means. Last word goes to the Clinton Justice Department again:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.

Any questions?

Posted 14:47, 5/12/2006 by Simon | Filed under: ConLaw | Comment on this

The missing words in the conversation about sinking Bush approval ratings

Captain Ed offers a lucid response to this WaPo story about the flight of conservatives from Bush. The only thing that seems missing from both stories are those two litte words: Harriet Miers. Perhaps it's only me, but as I see it, that was where it all started to go badly wrong; not just on the nomination's own merits, but because it came at the pinnacle of (and seemed to represent) a string of administration failures. Whatever else people had stuck with the administration for, one of the key unifiers was the long term project of remaking the judiciary; to be sure, different sections of the GOP had different ideas of what that project was about, but the Miers nomination displeased all sides. And of course, what did the administration do? It savaged its critics, which are the very people who are now telling opinion pollsters how unhappy they are. Am I alone in seeing this connection?

I'm not suggesting that the Miers nomination is what people are angry about. What I'm suggesting is this: the corollary to Reagan's eleventh commandment seems to be that it ceases to apply after the first shot is fired. Until the Miers debacle, there had always been a few dissatisfied voices in the GOP, but dissent had been muted. The Bush administration broke the taboo and opened the floodgates by its treatment of the party over the Miers nomination. Thereafter, criticism has mounted and flowed freely, not because it was never there before, but because the Miers nomination broke not only the sense of trust, not only the sense of common cause (compounded by, as ConfirmThem keeps pointing out, the failure to move judicial nominations into courts in the last year) but more than anything else, the sense of "keep it in the family" no-public-dissent comity.

If so, I wonder if David Frum quite knew what he was starting when he wrote this blog entry, scant hours after the nomination was made.

Posted 09:48, 5/11/2006 by Simon | Filed under: Politics | Comment on this

The 2006 elections: when losing is winning

This post mainly just sums up and updates stuff I've already said here, here and here. The crux of the matter is that I've been saying for a little while now that the GOP is probably going to lose the House this fall; more and more, I think that's actually a blessing in disguise, and increasingly, it seems like I'm not the only one.

I think that the likelihood is that the Democrats will take back the House this fall, but I think it will be a white elephant for them, and I think ultimately, it may destroy them. The really interesting thing about the prospect of Democrats recapturing the House is sudden increase in the chance of a fatal rupture between the incompatible visions of the base vs. the civilized parts of the party. Consider: what are the peculiar tools of the House? Appropriation and impeachment. The dem base favors a taxation policy which simply doesn't play in America any more; the party will be forced to appease the base and alienate voters for 2008, or else risk a damaging revolt. Worse yet is the impeachment power: suddenly armed with the impeachment power, the dems will no longer be able to straddle the gap between their base, which will desert them if they don't impeach Bush, and decent society, which will desert them if they do.

Equally, just as I think winning the House will be a white elephant for the Dems, I think losing it will be a boon for the GOP. First, consider that a tidal wave large enough to displace the GOP majority in the House would likely not flip the Senate, but it would leave it pretty close. It seems to me that, if the 110th Senate is closely divided, the practical result will be the empowerment of the moderate wing of the GOP (by which I mean, to varying degrees, McCain, Hagel, Snowe et al). The result of this is likely to be the blunting of those aspects of the GOP's agenda which are less-well supported by the public. In other words, a more moderate Senate may well lead to the presenting of a more moderate public face for the GOP - one more likely to win moderate votes in 2008 - than would be the case with a 60 vote majority. Moreover, both the shock of losing the House and the demise of the GOP legislative agenda (such as one still exists at this point) to the ensuing gridlock with that Democratic-controlled House are likely to re-invigorate the GOP base for 2008, which will have knock-on effects for both the Presidential election and House races.

In addition, a two year period in the minority would also shake up the GOP and may bring them back to the agenda they were elected to put in place when they take back control in '08 following the inevitable Democratic meltdown (see comments below).

Were all that not enough, it is very possible that the result of losing the House will concentrate the GOP on what it SHOULD be doing at the moment, which - by staggering coincidence - is also something it can achieve with control of only the Senate and the White House, viz., ensuring that all vacancies in the judiciary are filled with appropriate candidates. This is an unqualified good in itself, it does not fall afoul of the more moderate elements of the Senate, and from an electoral standpoint, also helps keep the base's mood up.

Lastly, David Brooks made a very good point about this recent on the News Hour: if the Democrats can't win back the House in this climate, what is it going to take for them to do so? In so many ways, it's theirs for the asking; they have an open goal, all they have to do is control the ball and tap it in. If they still can't accomplish that this fall, doesn't that reflect pretty dismally on their credibility among the public? In many ways, that's an inversion of what I was saying after the '04 election. There was nothing to celebrate for Republicans after that election: the Democrats picked the worst possible candidate, and ran the most inept campaign they could have run at the worst possible time for them, and they STILL came within a few thousand votes in Ohio of winning. If your local high school's football team play the Colts and hold them to a draw, and the Colts manage to get a field goal in the last seconds, that's not something for the Colts to celebrate. Likewise here: I hate to break Reagan's eleventh commandment, but it seems to me that the GOP is looking pretty vulnerable right now, so if the Dems win in November, it isn't going to be cause for too much disappointment in Republican ranks, but if the Dems lose, that's pretty bda for them. That's the Colts losing to your high school football team.

On cue, the New Republic is carrying an article, Long-term Investment: the case for losing by James Forsyth, the thrust of which (as that title in that forum implies) is to argue the other side of the coin from what I've been saying. I've said that it will carry certain risks for the Dems (and gains for the GOP) for the Democrats to win the midterms; Forsyth says that it carries certain benefits to the Democrats to lose the Midterms. The article isn't long, so I won't summarize it much ("just click through" as they say!), other than to quote some material from the end of the article, where Forsyth elegantly makes some of the same points that are on my mind:

if Republicans receive a pasting in November they will cast around for someone distinct enough to overcome the GOP's negative numbers. That might mean tolerating Giuliani's heresies on social issues, McCain's maverick streak, or Rice's lack of political experience.

I wouldn't put it quite like that, but he isn't wrong. Meanwhile, John McIntyre at Real Clear Politics contemplates the potential effect of the 2006 elections on the 2008 landscape in prosaically-titled post, How '06 Will Affect the '08 Electoral Map, concluding:

While it may not be the best thing for the Bush administration, a Democratic takeover of the House would likely be a huge assist to the overall Republican campaign in 2008. It would deprive Democrats of the very powerful campaign message that after eight years of near total GOP control it was time for a change. It would also put Speaker Pelosi and committee Chairmen like Rangel, Waxman and Conyers front and center for public view. More than anything else in 2006, a Democratic take over of the House would change the dynamic of the 2008 race and, ironically, would probably be good news for Republicans.

Wow! For a while there is was just me and David Brooks against the world!

Two years of the House in Dem hands, I think, will recenter the GOP, and do grave injury to the Democrats. I also think it offers that once-in-a-generation chance to pass term limits (the window for such a reform is two to three years: the first Congress after a change in control, and potentially an extra year ahead of a party losing control if it's readily apparent they're going to). So I can live with two years of Speaker Hoyer (why Speaker Hoyer? Because nothing on Earth will convince me that the Dems really are dumb enough to elect Speaker Pelosi; they're wrong, but they're not morons. See this story in Slate today), not because I'm convinced that they'll bungle it, but because I think there are structural forces at work here that ensure they cannot NOT bungle it.

Update: John Fund joins in. It's all starting to look more like Murder on the Orient Express than The Murder of Roger Ackroyd!

Update, Sept. 06: Mickey Kaus dissents, characterizing this argument as a "poisoned chalice" argument.

Posted 23:38, 5/8/2006 by Simon | Filed under: Elections: 2006 | Comments (4)