Can’t

The blogger Hilzoy on Obsidian Wings made a typically sharp observation back during the Bush years: When we say “The President can’t do that,” it’s not so much an observation about his power as the restrictions on it. “Can’t”in this context means he has no Constitutional claim, that it’s illegal, that it’s not a power the president possesses. And that if a president ignores all of that, he can.
As witness Bush, who ran over the checks and balances built into the system (admittedly with the help of a Congress that was supine and docile for most of his tenure), claimed to be a unitary president who could override any law in a time of war and authorized torture, warrantless eavesdropping, the kidnapping of innocent people and endless detention for anyone he claimed was a terrorist.
If you’d ask me 10 years earlier, “Can the president have an American citizen locked up indefinitely without charging him with a crime?” I’d have said no. As it turns out, I was wrong.
And if you’d ask me if the president could publicly call for the assassination of an American citizen who hasn’t been convicted of anything, as Obama has done, I’d say that was a no, too. And again, be wrong.
Much the same comes to mind looking at the foreclosure crisis. I’ve been writing lots of eHows explaining that lenders can’t throw you out of the house until it’s sold, have to notify you before the sale, can’t foreclose if you’ve paid your mortgage. So much for that idea!
As detailed in this article, mortgage lenders have thrown people out of the house who didn’t have a mortgage, foreclosed on mortgages that weren’t delinquent, and forged documentation—lots and lots of documentation—any time they or their agents wanted to foreclose and couldn’t find the paperwork.
(The industry position, backed up by some pundits such as Megan McArdle at The Atlantic is that this isn’t really significant: McArdle asserts, quite inaccurately that if they’d kept the paperwork everyone would have lost their home anyway, so forging substitutes didn’t actually dispossess anyone. The trouble is, if the documents are forged, there’s no proof the bank ever owned the mortgage—and in some cases, we know it didn’t).
Again, we see “can’t” or what we thought was “can’t” trumped by sheer determination—and not in the good way, like when someone proclaims that you can’t climb Everest or swim the English channel. Sure, it’s not a surprise that some banks or loan services would resort to fraud—but this much? (One interviewee at the link said her boss simply sat her down with a notary seal and told her to stamp documents. She wasn’t a notary)
The best way to re-establish the imperative of “can’t” in situations like this is, of course, to hit them hard and smack them down. Investigate allegations of torture by the Bush regime. Dig deep into the real-estate world and if people are dirty, nail them to the wall.
Unfortunately, Obama announced early on that he wasn’t going to “look backward” and punish any torturers—you know, the way American law and international law call for. And apparently he’s not looking backward at the mortgage lenders either.
Letting people get away with things is not a way to clear the decks and start fresh. It encourages worse shit down the road.
Sometimes I wonder if Obama isn’t the wrong person for the job at this point in time.
But on the plus side, McCain would have been a hell of a lot worse.