I was really hoping that barack would be the con-law president. If uchicago hasn't moved down in the rankings because their prof. emeritus is so bad at 'rule of law in practice', there's something wrong with the ranking system.
It's shocking to hear a guy who was a professional legal theorist argue that something is legal based on the fact that he ordered the DOJ to write a memo.
I wish more university rankings would have the results of their students held against them. An exit test of abilities, logic, and knowledge would be a great ranking system.
Additionally, when Presidents claim to be constitution law focused and fail in almost all of the concepts of following the constitution, the professors have failed and the department should be redacted down, similar to the division system in soccer.
Perhaps one should consider if a "constitutional scholar" is the perfect candidate to dismantle the Constitution bit by bit rather than someone who holds true to whatever your definitions of "Constitutional" are.
I'll admit I voted for the guy the first time, but I was hoping for some significant differences in what we ended up with. Partially the fault of the obstructionist opposing party as well.
When he was elected, I was happy, perhaps he could enact the changes that needed to be made to reign in some of the spying, ridiculous defense contracts, and other items. I based this on the "not red or blue country" speech at the DNC convention. That hope passed quickly when he made the "I won" comment to the Republicans instead of just assuaging or listening to their now valid concerns.
I would argue that the obstructionism during the first two years should not be considered a factor based on the make-up of the Congress. The Democrat congress and President would have been able to hold the majority if they had not stirred up the hornet's nest of populism from the right through the healthcare act fiasco. Had he just focused on creating jobs, winding the war in Iraq and Afghanistan to a manageable level of involvement, and proselytized about family being important, we would not be having Trump running for office today.
The fiasco was the instant and complete evisceration of the single payer options originally present in the law. If private insurance companies can't do a better job than a big bloated government run institution, then they shouldn't be protected--they should be allowed to die. The public option would set a minimum bar that the companies would have to stay above to stay in business.
Instead, the thing the detractors feared has basically come to pass. Insurance companies in areas where there is not a lot of competition and suddenly a legal mandate for people to join are screwing over those people enormously. It's like if Comcast run your healthcare insurance.
Plus it did little to address the expensive and inefficient army of middlemen required to run the current system. Your doctor still needs people on staff dedicated to calling the insurance companies to talk to their middlemen to haggle over the need for every single procedure and then to haggle price and then to make a mountain of paperwork to document it all. It is an enormous waste of time and manpower but it pays a ton of salaries.
The Affordable Care Act was based on RomneyCare, which in turn was based on model legeslation from ALEC (American Legislative Exchange Counsel). They're a conservative organization that writes bills and gives them to republicans to propose.
The republican reaction was just showmanship; a cry of indignation for the sake of the cameras.
While on the face you seem to be decrying the polar tribalism that characterizes contemporary politics, you are using that very tribalism to make your argument. But the fact that some folks who label themselves "conservative" have advocated something does not obligate all people, or even any other people, who also label themselves "conservative", to also support it. Or will you criticize other Republicans for failing to get on board with Trump's nonsense?
I appreciate the nuance of your argument. It's a good point in general, and I personally don't fit cleanly into any existing party.
That said, I think we can reasonably propose that most of the sound and fury over the ACA was political theater. Mitt Romney wasn't decried when he passed a nearly identical law in Massachussetts. In fact, the RNC chose Romney to run against Obama in 2012, so it clearly didn't hurt him much.
Ask yourself this: if John McCain had beaten Obama in 2008, and he proposed taking RomneyCare to the national level, do you think he would have drawn the same kind of criticism from republicans as Obama did?
Don't get me wrong, I'm not saying this is a republican problem. Democrats probably would have been furious with McCain if that had happened. They likely would have decried the lack of public option, and they would have called it a massive hand-out to private insurers. Democrats are not any better. They only supported the ACA because it was backed by their guy.
Obviously I'm speaking in blanket statements, and there will be individuals that this doesn't apply to. However, I'm pretty confident that these statements are true in the average case.
This kind of argument seems to ignore the idea of federalism and limits on federal power. Just because something might be a good idea for one state doesn't mean that it's a good idea (or constitutional) at a federal level.
This kind of concern trolling seems to ignore the idea of loosely coupled nation states which have already implemented a variety of superior health care systems. Costs less, their people are more healthy. What I like to call "existence proofs". Just because ACA is a terrible idea for one nation doesn't mean that sole implementing nation should then hide behind exceptionalism (NIH) or weird textualism legal constructs and pretend what meager progress has been made so far is in some way radical.
RomneyCare was not popular with the rest of the country's Republican party. Just because he had one thing on his record that would be contradictory to that of the current party does not mean all of his talking points are not valid.
Romney was spot on about Russia being a concern in the coming months and years.
I can't speak for the OP, but he may not be talking about the actual law or it's basis, but the execution of it, which has been a fiasco. We're 3 years into it, and insurance agents and "qualified" healthcare navigators still don't know what they're doing because it's so complicated. Never mind the security issues and complete lack of usability that is the healthcare.gov marketplace.
> complete lack of usability that is the healthcare.gov marketplace
Oh come now. This is ridiculous hyperbole, and even the underlying idea is pretty weak at this point. I used the marketplace last June and it presented information clearly and effectively, and I had no problems going from zero to well-informed and insured in no time at all.
The launch may have been a fiasco, but it's a pretty good site today.
> I would argue that the obstructionism during the first two years
After the 2008 election and until the 2010 election, it was a Democrat House with a Democrat Senate with a Democrat President. It wasn't filibuster-proof (not like they do them anymore anyway) but the Democrats were in charge.
They actually did have a filibuster-proof majority for something like a few months, in between the fight over the Minnesota recount and Senator Kennedy's death. It's pretty much the only time during Obama's Presidency that Congress has been able to get shit done.
He had the cap on executive bonuses removed while Chuck Grassley was on the floor of the Senate calling for AIG employees to commit suicide before the American people. Pretty remarkable achievement for a President capable of accomplishing very little else save for a pharmaceutical-industry supported healthcare bill.
Obama made clear as early as the 2008 primaries that he wasn't going to be very good on civil liberties. (But he didn't have to be this bad.)
What valid concerns did Republicans have during the past eight years? Do tell. I've not heard of a single one.
Trump is the inevitable outcome of 50 years of racist, belligerent fear mongering and bad-faith governance on the part of the Republicans. You can draw a straight line from Nixon through Reagan through W. to get to Trump. Obama had nothing to do with it.
1. The healthcare law will increase costs. Check that with where the premiums were at prior to implementation and then after.
2. Russia is a concern. Check that against our attempts at "reset."
3. Iran will not adhere to the document they signed with the Nuclear Act. Check that with the current ballistics tests.
I could go on, however, please do tell me what current racist governance the Republicans are engaging in. How far into the echo chamber are you that you believe this, please point to what actual racist policies Reagan, George H.W. Bush, or George W. Bush have implemented?
They're on point about his general lawlessness. It started with the Chrysler bailout (almost as soon as he walked into office!), and it continues to this day with e.g. the retroactive provisions in his latest anti-inversion proposal.
> Trump is the inevitable outcome of 50 years of racist, belligerent fear mongering
Trump is the inevitable outcome of eight years of liberal grievance peddling. His supporters are just trying to claim their share of the spoils of victimhood.
>"if they had not stirred up the hornet's nest of populism from the right through the healthcare act fiasco"
To blame the President for this is ridiculous.
Our centrist President promoted a conservative think-tank idea battle tested in the laboratory of a large state, and was ridiculed as a marxist and a communist who was on the level of stalin. No hyperbole, these very attacks and words have become so common in conservative media that I am being very literal here.
The healthcare fiasco you point out was a manufactured fiasco.
The compromises made: conservative ideas, preservation of the private market, total lack of centralization are wholly anti-left anti-social ideas, and yet the opposition to him was as if he was an actual communist.
>"we would not be having Trump running for office today."
I consider this supremely naive.
The leaders of the national Republican party met before Obama was inaugurated and created the now-infamous obstructionist plan.
They promised each other: NO COMPROMISE, no assistance, no crossing the aisle. The only answer to ANY Democrat in the White House was simple: TOTAL uncompromising obstruction with the only valid and acceptable outcome being ideologically pure conservative policy.
The depth of the manufactured fiasco is proven by the simple history. A conservative idea to preserve the private market in the healthcare industry was hilariously tainted as socialist and the GOP successfully dragged their voters through another round of the Red Scare. This is indisputable: the renowned conservative think-tank Heritage Foundation is the genesis of the individual mandate which was battle tested by a Republican state administration. And yet, the second a centrist Democrat touches the plan, it's immediately the worst form of communism ever conceived...
>we would not be having Trump running for office today.
Trump is running today because the Republican Party promised their voters the Blood of any America-Destroying Commie-Democrat and failed to deliver what they could never deliver.
Republican leaders and Republican media stoked a fire for eight years and now they cannot control the four alarm blaze they've transformed their party into.
This is not Obama's fault. This is purely cause and effect. When you stoke a fire irresponsibly you get an irresponsibly large fire. Obama is a bystander. Republicans could have and would have stoked this fire for anyone who does not pledge fealty to their ideology. Look at how the #NeverTrump movement stokes this fire for Trump who they believe does not pledge true fealty to their conservative ideology. This is now how their party operates: Pledge fealty or you the problem that must be fixed, a RINO, an anti-Christ, a Muslim, a Marxist, a Leftist. Pledge fealty or you're the enemy. Obama was just a convenient target.
Well written, thanks. There was a time when the ACA was about a single payer healthcare system. Wouldn't that better explain the red scare accusations of socialism?
> There was a time when the ACA was about a single payer healthcare system.
I don't think there was ever a time when the ACA was about single payer.
I think you're confusing it with a separate alternative bill progressives championed during the healthcare reform period that we called the Medicare for All Act (H.R.676 - United States National Health Insurance Act (or the Expanded and Improved Medicare for All Act.
We pushed hard for our vision of a national health care system and just about all progressives in Congress agreed with nearly 100 co-sponsors, but ultimately the centrist democrats and their new centrist President chose a path of "compromise" with conservatives who did not have any interest in compromise.
It makes me sad. If conservatives were going to wage a scorched earth red scare propaganda war against any health care reform, why not ACTUALLY achieve a national health care system and give their red scare complaints merit?
? The Medicare for All bill from 2008 and its current iteration in 2015, the primary and most prominent push for national healthcare, explicitly bans all private institutions from participating unless they are non-profits. Only public and non-profits are allowed to participate.
> The Democrat congress and President would have been able to hold the majority if they had not stirred up the hornet's nest of populism from the right through the healthcare act fiasco.
Yeah. The Democrats stirred up populism from the Right by enacting a policy solution that closely followed health care policy solutions supported at one time by the Heritage Foundation and the 2012 Republican Presidential Candidate.
That's how we got here.
Plus nakedly uncompromising partisan power grabs like Obama's nomination of Merrick Garland.
This analysis demonstrates how people just take sound bites, package them, and then spout it out in arguments.
The Democrats party pushed forward on healthcare reform. The tide was moving that something had to be done and there was movement to look at this, however, there were many different policies being proposed; President Obama was lying when he said "No one" has suggested other options, I know for a fact that I sent him an e-mail containing alternatives to those he was going for.
Romneycare was not liked within the Republican party, the concepts of what it took to enact, what it required to run, and what it asked of its populace were not well received. So, just because he was the one who tried it, does not mean that the entirety of the Republican party supported it.
So, yes, the Democrats stirred the opposing party's populist sentiment through many policy decisions that affected them. The Republican party members argued that the healthcare reform proposed by the Democrat party was ridiculous, would raise rates, and affect those who were independent business owners. As we sit here, rates are higher, the reforms are not occurring, and independent business owners are downgrading employees left and right (good pun Agustus) from full-time to part-time.
Finally, it's all politics. Joe Biden was in the same position on another supreme court nominee and did the same thing. It is all political. The media reports that he is a centrist, but based on my reviews of his opinions, he is left leaning with a few moments of conservatism; which is the optics President Obama wants to force a stand-off with the parties.
> President Obama was lying when he said "No one" has suggested other options, I know for a fact that I sent him an e-mail containing alternatives to those he was going for.
If you're suggesting that Obama has at any point contended that there were no other policy alternatives besides what ended up in the PP/ACA, I don't know what to tell you. Feel free to cite the statement you're sure he was lying about, though, I'm sure it will pair well with your own statement about the problem of people taking sound bites and packaging them.
Sadly, I do think it's likely Obama ignored your personal email containing our nation's policy solutions.
> just because [Romney] was the one who tried it, does not mean that the entirety of the Republican party supported it.
Sure, I don't expect the entirety of the Republican party to have supported it; the entirety of the Democratic party didn't. And among those that did there are many who'd be the first to tell you they think it could be improved (including Obama himself).
Given past endorsement and even adoption from some Republican segments with conservative bona fides any reasonable person would have expected some support, if the Republican party were actually doing policy at all rather than pure theater.
> The Republican party members argued that the healthcare reform proposed by the Democrat party was ridiculous, would raise rates, and affect those who were independent business owners.
The Republican party also argued that it would create government death panels, provide free care for all illegal immigrants, micromanage doctors, bring on a totalitarian state, that it was too big/too complicated, would bankrupt/enrich private insurers, bankrupt the country, etc etc.
Many arguments were made about the reform. Very few of those that took place in the public sphere were in any way about the actual policy.
Most of yours aren't, either. Nor is it clear that your perception of what is actually happening is accurate:
> As we sit here, rates are higher
Increasing rates have been a fact of life in the insurance market for decades. All PP/ACA had to do in order to be an improvement was slow down the rate of increase:
> independent business owners are downgrading employees left and right (good pun Agustus) from full-time to part-time.
"Are Republicans right that employers are capping workers’ hours to avoid offering health insurance? The evidence suggests the answer is 'yes,' although the number of workers affected is fairly small."
Again, there are people among the Democrats (Obama included) who'd be the first to admit that PP/ACA was the legislation they could get passed back in 2010 rather than ideal. There have been actual invitations to revisit the policy and see if we could improve on some of the known flaws, including this one.
> Finally, it's all politics. Joe Biden was in the same position on another supreme court nominee and did the same thing.
Describe, exactly, what you think "the same thing" is.
He was not a constitutional lawyer. It's amazing that line ever got traction. Teaching con-law is like teaching biology in med school. It's a required course. Being a scholar requires scholarship and you'll be hard pressed to find Obama's con law scholarship/publications.
At the end of the day, John Yoo has probably studied the Constitution more than Obama, as well as other nameless ones throughout government. For every one of you and me, there are entire graduating classes every year chock full of ideological pushback.
I don't think his actions have much to do with what he believes, despite his intentions the government must function as it functions.
I think that Obama sincerely wanted to change things, but once he got the power he realized it wasn't possible, or he is a very convincing liar, so convincing that he believes himself what he said.
The political system was designed from the beginning to be weak based on what the founders had left. A very specific set of powers granted to the federal government but split between three often opposed branches. The remaining power defaulting to the states but still separated by largely the same system of checks of balances, and often with the two systems (state/fed) themselves opposed.
The system was never designed to be one where you could implement massive changes overnight.
One needs to always remember that those not yet in power have issues with how others use it, once their side is in power they are quite happy with maintaining the status quo or expanding it.
It's not clear to me that narrow interpretations of the 4th amendment are more faithful to the Constitution than broad ones. It's true that the 4th amendment was put in the Constitution to provide a protection against warrantless searches of peoples' homes. At the same time, one of the motivating reasons for creating the Constitution as a whole was to create a powerful executive with broad authority to react to military threats, both external and internal. Why is it more faithful to the Constitution to give more weight to the 4th amendment and less weight to the President's broad powers as to national security?
The very first Congress provided for warrantless searches of goods entering and leaving the ports of the United States. Why does it offend the Constitution to interpret the border as being the line where the domestic concerns of the 4th amendment give way to the foreign powers concerns of Article II?
One of the major national security concerns at the time of the founding was domestic insurrection. Several of the Federalist Papers discuss the issue:
Federalist No. 28
> THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied.
Federalist No. 29
> THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
Article II then invests power over the militias, when called into service of the United States, in the President:
> The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
In other words, the Constitution put the President singularly in charge of what the framers considered the chief tool against domestic insecurity: the nationalized militias.
Article 2, section 2 enumerates some broad powers including "Commander in Chief".
Courts have long held that protections are very different at the border. For example a police officer cannot search your car without either your consent or "reasonable suspicion" of wrong-doing. But searches of cars at border crossings are common and legal.
Government policy has long been that the border is a lot bigger than you would expect. Government officers often exceed official policy, and courts have been known to rule in their favor when they do so. See https://www.aclu.org/constitution-100-mile-border-zone for some interesting stuff.
(I have personally been stopped by the border patrol many miles from the border...)
> At the same time, one of the motivating reasons for creating the Constitution as a whole was to create a powerful executive with broad authority to react to military threats, both external and internal. Why is it more faithful to the Constitution to give more weight to the 4th amendment and less weight to the President's broad powers as to national security?
The justification for warrantless dragnet surveillance is to stop terrorists. The damage terrorists cause is literally negligeable when judged by your argument. If the Constitution was designed to react to military threats, terrorism is not a threat. You're more likely to die slipping in the shower than get killed by a terrorist, which is not the case when at war with another nation.
And this doesn't even touch on whether dragnet surveillance is actually effective (which it can't be, even in principle). As such, the justification for dragnet surveillance is so thin it's comical.
People do not think that accidental deaths are comparable to intentional killings. We have elaborate mechanisms to distinguish the two because our fundamental outlook is that one is much more serious than the other.
Besides that, it's almost certainly the case that terrorism has resulted in more deaths than has warrantless dragnet surveillance of cross-border traffic.
Intention is irrelevant to the argument I presented. The example I presented merely illustrates the level of risk, which is ridiculously low, and certainly doesn't justify military involvement.
> Besides that, it's almost certainly the case that terrorism has resulted in more deaths than has warrantless dragnet surveillance of cross-border traffic.
I don't see how that's relevant one whit. We don't control terrorist actions, we do control our own government's actions, and the latter's actions are restricted by the constitution.
It is also worth remembering that home searches were (and are) very annoying. The type of digital surveillance that is the topic of current 4th amendment debates do not directly inconvenience the person being investigated, so this argument does not apply.
Inconvenience is hardly the reason for the 4th was put in place, saying that we can moot the whole thing because technology has solved that inconvenient bit seems really disingenuous. The 4th doesn't say "no Warrants shall issue, but upon probable cause... except in cases of extreme convenience, then we can just play it by ear."
It is a clear as daylight protection of against governmental abuse. And honestly I don't know about you, but I rather have my house searched then my computers any day of the week. One's a place I sleep, the other has deep insights on me as an individual.
There are parts of the fourth amendment. The first part is a protection against unreasonable searches and seizures. The second part is a requirement of probable cause for warrants.
The question of the heart of most modern fourth amendment debates is what constitutes a search (and, by extension, requires a warrant). For example, does the government require a warrant to work with the phone company to tap my line [0].
The original push for the 4th amendment protections were abuses of the writ of assistance, wherein British authorities could search any house and seize contraband. [1]. As far as I can tell, the fourth amendment was designed as a protection of property rights and against governmental harassment. I have not seen any evidence that it was written with privacy rights in mind.
In Katz v United States [2] Justice Stewart, in the majority opinion, wrote:
the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. [n4] Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. [n5] But the protection of a person's general right to privacy -- his right to be let alone by other people [n6] -- is, like the [p351] protection of his property and of his very life, left largely to the law of the individual States.
[0] Or rather, does the fourth amendment require the government to get a warrant.
[1] Yes, this process was highly suspectable to abuse. The most relevant modern analogy would be civil forfeiture.
[2] https://www.law.cornell.edu/supremecourt/text/389/347#writin...
I think part of what made home searches annoying in the colonial era was that they were disproportionately applied to the political opponents of the colonialist status quo. We see those concerns reappear in the modern day in the form of, e.g. loveint, and presumably other pernicious politically motivated investigations. The federal code is so broad as to be able to be used to harass anyone for a legion of infractions at any given moment, so it is a reasonable threat.
Obama's reign was never about hope and change; it was always about der Wille zur Macht. Riddle me this -- what if Obama became a Constitutional law professor not so much to study, understand, and teach about the Constitution and its checks on government power, but to give scholarly support to a loose interpretation of the Constitution which does not meaningfully restrain government power?
As far as I see, he only really taught some fluff courses on "rights, race and gender." [1] Not quite what comes to the minds of most lawyers and law students when someone says "con law professor."
The article says, "At the school, Mr. Obama taught three courses, ascending to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was in the due process and equal protection areas of constitutional law. His voting rights class traced the evolution of election law, from the disenfranchisement of blacks to contemporary debates over districting and campaign finance. Mr. Obama was so interested in the subject that he helped Richard Pildes, a professor at New York University, develop a leading casebook in the field. His most original course, a historical and political seminar as much as a legal one, was on racism and law."
From that description, the equal protection and due process course sounds like a typical con law profesor?
I think this is giving him too much credit. Obama's career is too short to think of him as anything other than a lucky ticket holder. He's Warren Harding, or even George W. Bush again - it matters less what he believes and has done and more what the prevailing wisdom is. The main story in American government is continuity: no matter who sits the throne, it's the needs of the same establishment class that get met.
This is not to excuse the behavior of the man who chose to push buttons and kill people from the sky, but Obama did not invent any of this stuff. The drone program had already been created and had a life of its own. Obama was merely willing to play along with the game (instead of, say, cleaning out the CIA of torturers). The same goes for the rest - certainly, Obama wants power, but I think he actually sold himself for precious little of it.
Also reasonable: law professor is a great job if you can get it. Plus when you run out of money you click your slippers and say 'no place like corp law'.
Also possible that he's a lizard person. Not much textual evidence for this case but if you like 45 minute youtube videos I'll recommend some good ones.
That's no ordinary troll. Those comments were synthesized from either a stats distribution or a human using a script. The usernames are similar (dnsjjebw & dnsjkwns), both first time posters, and there's keyword matches between the posts.
The language doesn't look reminiscent of a chatbot to me. It seems that the person made a one-off account, posted something, then thought it didn't go through and made another account and posted again.
Eh. John Yoo advocated unlimited warrantless surveillance of even domestic communication and he said torture was A-OK. As much as I don't like what Obama is allowing here, I don't see how it's worse or even as bad as what Yoo pushed for.
- "the courts have decided that the application of the law is too broad and we're going to add clearly defined limits so as to protect the rights of our citizens"
How it is:
- "the courts can not review or speak about what may or may not be a problem because of FISA orders."
- Since our legal advisor claims that it is possibly legal, I will do the thing. In the case that someone has grounds to challenge the thing, I will face no penalty because I acted in good faith based on legal advice.
If a normal citizen tried that shit, they'd be rotting in jail.
These cases take a long time to trickle up to the Supreme Court. And you would have to either convince one of the 4 solid left-wing judges to side against the administration (hah -- and before downvoting, look at the voting records) or have a unanimous opinion on the right, which was difficult even when Scalia was alive, and obviously not helpful now, since a split enforcing a lower court decision doesn't set precedent.
"The government assumes that any communication entering or leaving the country has a foreigner on one end — and thus is eligible for warrantless searching. As the new Brennan Center report makes clear, the implications of this position are especially dire given the global structure of the Internet, where even Americans’ domestic communications may be routed or stored abroad without the parties to those communications even knowing. "
He's correct. This position is dire. It also works in reverse. Any communication between two non-US residents that happens to transit the US is also subject to surveillance. Given the way global packet networks function, that means that almost any communication could be subject to surveillance under this legal theory.
As US networking companies' foreign customers have understood, that's an unacceptable -- and sometimes illegal -- risk. These policies haven't been good for US network business.
And, pretty soon the NSA could have T. Cruz or D. Trump at the head of the government they control.
Is there some reason the US security apparatus can't legislate in public? Is there some reason they can't make the case "here's why we are trustworthy"? They haven't even TRIED to make that case.
> Any communication between two non-US residents that happens to transit the US is also subject to surveillance.
Of course but we (USians) don't care, spying on everyone else is the NSA's job and every country does it. I'm more concerned about these issues than the average USian but even I don't care much about applying things like the 4th Amendment to non-USians who are physically outside the country. Well, I don't care about it from a justice perspective, I do care about possible consequences like the Internet becoming balkanized.
> Is there some reason the US security apparatus can't legislate in public?
Why would they, how would it benefit them? Their answer would be that it's critical that they keep secret their "sources and methods," so the bad guys don't know what they're doing and also what they're not doing, whether it's because they don't have the capability or they're legally restricted from doing it.
Somehow people are just catching on to this. I was amazed and deeply disappointed by the appointment of Cass Sunstein. He wrote a freaking book entitled "The Problem of Free Speech" and actively justifies state infiltration and 'providing direction' to online political discourse among the US citizen base (among other things).
Though its not this administration either. The Bust Administration before it drew up many broad interpretations of law, including the laws that have since been used for censorship (first in "Free Speech Zones" but since at Occupy and the media free zones around Ferguson).
If you still believe in the core concept of a state, but just believe the US is a particularly bad one, invest in other governments with opposing, or non-aligned geopolitical / economic interests. Iran, Russia, Brazil, India, China (and/or corporate entities therein) are good places to start.
If you believe the entire model is intrinsically flawed and doomed to eventual failure, cryptocurrencies if you're technologically optimistic, or precious metals if you're not.
As I'm sure you know, good fucking luck shorting Treasuries. They've been in a 35 year long bull market. As Keynes noted oh so long ago, "The market can stay irrational longer than you can stay solvent."
It's shocking to hear a guy who was a professional legal theorist argue that something is legal based on the fact that he ordered the DOJ to write a memo.