The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.
Congress is notoriously lousy at terminating the life of government entities. However, in a stroke of sheer genius, it has managed to make one of them homeless: the U.S. Tax Court.
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.”
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.)
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?
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.
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.
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…