In Praise of Gridlock, Federalism’s BFF

As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.

This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.

But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.

For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor.

Read More

Bodychecking the Administrative State

It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

Read More

Toward a Practice of Bodycheck Constitutionalism

Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block. How about throwing some weight instead?

Senator Ron Johnson’s fists are stuffed in his pockets as he runs across the Capitol Plaza to the pillared edifice where parental figures in black robes dispense constitutional wisdom evidently inaccessible to the rest of us. The Wisconsin Republican is suing President Obama over the administrative agreement that protects members of Congress and their staff from the legal requirement—which, by the way, was the product of asinine posturing, but which is also, you know, law, which you can tell because it bears the President’s signature—that they purchase insurance on the Obamacare exchanges.

Read More

Do We Deserve the Constitution of 2014?

Replacing the US Constitution of 1787 began in the 1930s, slowly and imperceptibly, always with bipartisan support. Now it rushes to completion, unmistakably. Democrat President Barack Obama’s proclamation: “I can do anything I want,” only exaggerated the reality of the 2014 constitution, which the Republican leadership of the House of Representatives re-confirmed quickly

Read More

From a Parliament to Proconsuls

The White House staff is reported to have concluded after an internal review that the United States does not have a parliamentary system. The lesson deduced from this insight is evidently that we have proconsuls instead, but in neither case is a regime of separated powers treated as more than an inconvenience. This is to be “a year of action,” after all, and Press Secretary Jay Carney bottom-lines it for us: the president will “work with Congress where he can and … bypass Congress where necessary.”

Read More

Congress Slouches Towards Illegitimacy

America is under one-party rule. That is illegitimate because it is irresponsible. Restoring responsible government will take a revolt from within the ruling coalition, or a new party formed explicitly to represent the people against the ruling class.

The New York Times’ “News Alert” heralded the House of Representatives’ passage (359-67) of a single bill that appropriates money for the US government’s discretionary accounts through fiscal 2014: “The legislation, 1,582 pages in length and unveiled only two nights ago, embodies precisely what many House Republicans have railed against since the Tea Party movement began, a massive bill dropped in the cover of darkness and voted on before lawmakers could possibly have read it.” The same day, a Wall Street Journal headline hailed the event as “Budget Deal Gives Parties Break From Fiscal Combat.” Like the Times, the Journal published a summary list of “who gets what” from the $1.1 trillion deal.

iStock_000001750148SmallThe Party bosses and the lobbyists closest to them who worked out the deal over the previous weekend answered only to themselves.

Read More

Friday Roundup, December 20th

  • Our Books essay this week is by Todd Zywicki on Nassim Taleb’s Antifragile: Things That Gain From Disorder. Zywicki applies Taleb’s insight that an antifragile “system . . . gains from disorder and volatility—i.e., exposure to stresses improves the operation of the system and makes it stronger,” to financial regulation, arguing this approach would lead to better results than the regulatory philosophy of Dodd-Frank.

The Regulatory State on Autopilot: A Response to Comments

My earlier post prompted several very thoughtful comments that well warrant a reply and, folks willing, further discussion.

Thanks to Ron Johnson for his kind words. Yep, there’s ample reason to worry that conniving politicians in Washington go into business for themselves and their friends. The concern is as old as the republic: it was a standard Antifederalist trope. The standard Federalist reply was that the system requires some distance from the electorate (what we now call “agency slack”): that’s Madison’s argument for representation, large electoral districts, “filtration,” etc. And you can argue that the system is now failing us because those mechanisms have broken down: every obscure Congressman is perfectly monitored. Every legislator knows that Medicare is going bust; every legislator has to lie about it and vote the AARP line. In my estimation there’s some truth to the “political class” argument, but it’s not the whole truth.

Read More

On Function and Dysfunction in Congress

When Norman Ornstein and Thomas Mann released their annual Vital Statistics on Congress this month showing that the 112th Congress passed a record low number of laws, tongues clucked among Washington’s class of chatterers and puritans about dysfunction on Capitol Hill. “The least productive Congress ever,” announced The Washington Post. But when James Madison diagnosed the ills of the American political system on the eve of the Constitutional Convention, paralysis was not among them.  The problem was a limitless capacity to pass legislation.

Read More

A Postmodern Science of Administration

So the title of this post comes from some ideas I’ve had rereading Peter Lawler’s book Postmodernism, Rightly Understood. Lawler sought to make postmodern thought’s intuitions worthy of philosophical reflection. Postmodernism, when we reason rightly, is not about the unknow-ability of truth, nor is it an affirmation of the inexplicable individual who no longer believes that science, democracy, and modernity will lead to human progress. Instead, postmodernism can be seen as a rightful recognition that our modern belief in an impersonal science and resignation of ourselves to an expert dominated future, divorced from genuine human needs for spiritual, relational modes of being, is no longer plausible. The  individual contra Hobbes and Locke cannot remake nature. Recognition of this fact leaves us with our leftover selves, the self that hangs around after all of the modern ideologies have been applied and consumed and experienced as failures.

Read More