Our Secretive Presidency

Mount Rushmore

Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):

Have you heard of the wonderful one-hoss shay,

That was built in such a logical way

It ran a hundred years to a day…?

The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”

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The End of American Democracy?

Matt Yglesias argues that American democracy is “doomed.” Along with some over-the-top scenarios of military coups and the like, the essay contains sober—and sobering—analysis of our predicament, based on a pretty good survey of the PoliSci literature.

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Dysfunction Is No Excuse for Misreading the Constitution

Can the U.S. House of Representatives elect a non-member to the Speakership? Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing, in this space yesterday, asserted the only thing standing in the way is “over two centuries of legislative practice to the contrary.” (Editor’s note: Ewing’s latest, written in reply to Schaub and National Review’s Matthew Franck, is here.)

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Seeking a Power Agenda

US Capitol Building, Washington DC

Conventional wisdom holds that the Speakership of the House is an impossible job because the Republican caucus is ungovernable. On this narrative, compromise is profane, and conservative purists outflank any constructive proposal leadership makes, thus rendering it toxic to the opposition. The purists are the proverbial bidders in Burke’s “auction of popularity”: “If any [leader] should happen to propose a scheme of liberty, soberly limited, and defined with proper qualifications, he will be immediately outbid by his competitors, who will produce something more splendidly popular.”

Alas: What’s a speaker to do? 

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House v. Burwell

Capitol Flag

Even after the Supreme Court’s lamentable decision in King v. Burwell, litigation over the Affordable Care Act and the administration’s creative implementation of the statute continues. Last week, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia held that the House of Representatives has standing to sue the executive (more precisely, Secretaries Burwell and Lew) over their decision to implement an ACA program with unappropriated funds. While it’s certainly a good thing to keep this excretion of a statute in litigation, from here to eternity, there are reasons to be nervous about Judge Collyer’s ruling.

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Wheeler of Fortune

Last week, FCC Chairman Tom Wheeler announced a plan to extend federal subsidies for low-income Americans from landline and mobile phone services to broadband. The Internet is so cool, the FCC wants to a) regulate it under Title II of the ancient  (1934) Telecommunications Act and b) make sure everyone has access to whatever is left of the Net once the agency is through with it. Republicans in Congress are moping that the FCC has horridly mismanaged even the existing subsidy program (called “Lifeline”), so they’re reluctant to support the broadband extension. There’ll be hearings.

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Obamacare Meets Rudy

Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does. And then, there were moments that made your heart sink: JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out…

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How the Subservient Branch Declares War

Obama Asks Congress to Authorize War Against Islamic State

In the debate over the proposed new Authorization for the Use of Military Force, some have suggested that the President is asking to have his arms tied. In fact the move is cleverer. He is asking Congress to authorize what he has already done and therefore apparently thinks he can do anyway, and asking with enough modifiers—what is an “enduring” ground operation? who will decide how long it “endures”?—to vitiate any congressional limitations on his power.

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Abolish the State of the Union Address  


The enigma, and perhaps impetus, of swelling executive power is that when constitutionally asserted, the presidency is shrinking. Witness the White House’s apparent intent to use the State of the Union address to propose that—wait for it—Congress enact national standards regarding how quickly companies must inform customers of data breaches.

Now, hacking is bad and reporting it is good. But it is also time—and the constitutional conservative should reach this conclusion with due reluctance—to abolish the State of the Union address, whose most pernicious effect is its political imperative for the President to propose as many new ideas as possible, regardless of the need for them, while Congress occupies a supine posture of reaction.

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Liberating the States and Their People from Federal Grants: A Conversation with James Buckley


Now comes the great James Buckley to Liberty Law Talk to discuss his new book Saving Congress from Itself that argues federal grants-in-aid exemplify the obstacles currently posed to constitutional government. The key to our constitutional health must involve, Buckley declares, the elimination of these programs. The issue is more than just the overwhelming spending, which has soared from $24.1 billion in 1970 to approximately $640.8 billion in 2015. Buckley and I also discuss the obvious constitutional problems, namely, that through the so-called spending power Congress can impose laws on states that it otherwise possesses no constitutional authority to enact and enforce. As Michael Greve…

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