Congress’s Constitution – If They Can Keep It

USA

Our Constitution makes Congress the first branch of government, but the Capitol is today regarded almost as a house of ill-repute, both for the character of its members (not necessarily ours, but theirs) and its general contribution (or lack thereof) to the national well-being.  As a legislature, its primary means of asserting itself must be to pass legislation, but it has become infamously inept in that work in this age of severe polarization and powerful interest groups happy to block changes to a status quo they find lucrative.  Given the apparent permanency of these underlying factors, many observers now see the waning of Congress’s importance as both inevitable and unequivocally desirable.

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Free Riding Hobbles Congress’s Ability to Stop Expansion in Presidential Power

James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51.

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Lord, Give Me Constitutionalism, But Not Yet

White House Washington DC behind bars

The case of Washington v. Trump—in which a panel of the Ninth Circuit expressed apparent sympathy, during Tuesday’s arguments, for a district judge’s restraining order against the President’s pause on immigration from seven Muslim-majority countries identified as terrorism threats—has less to do with an overreaching judiciary than with an underperforming Congress.

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No! The Electoral College Was Not about Slavery!

George Washington presiding over the Constitutional Convention of 1787 in Philadelphia.

The American people have learned much about the Electoral College since the November election. Much has been learned about the origins, evolution and contemporary functioning of our system of presidential elections. We have debated the merits of our system versus allowing a simple national popular vote. We have seen an unprecedented campaign to try to get electors to vote against their pledge. And some have tried to instruct us on the nuances of the Founding environment that created our unique electoral system.

But among all the good information and honest debates have arisen a misleading half-truth aimed at undermining the Electoral College.

Law professor Paul Finkelman ominously opines that Americans would be “disgusted” if they knew the real origin of the Electoral College was in protecting slavery.

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Crouching Congress, Hidden Judges

US Capitol Building, Washington DC

One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…

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While It Was All Just Slippin’ Away

Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening  To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…

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Which Constitution Will We Live Under?

Architectural Columns on the Portico of a Federal Building in Ne

The Progressive apoplexy over Donald Trump—which is justified on myriad grounds, many of them other than those his critics are articulating—ought not obscure this decisive fact: Trumpism is a disease of Progressive constitutionalism. Its symptoms include an inflamed presidency and Supreme Court—and embrace of the former and a reaction against the latter.

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The Constitutional Work Before Us

Capitol Dome with Dark Storm Sky

The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.

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How Did Our Politics Go Insane?

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Jonathan Rauch of the Brookings Institution, a dear friend and one of the nation’s most insightful and thoughtful political observers, explains in a provocative Atlantic piece “How American Politics Went Insane.” The short answer, more fully elaborated in Jonathan’s earlier e-book, is disintermediation—that is, the demolition of political structures and mechanisms that, in a system of divided powers, make politics work and enable “middlemen” and power brokers to protect the system against crazies. Primaries and campaign finance reforms have weakened the parties. The destruction of the seniority and committee system has disabled Congress from legislating even when a (latent) consensus does exist. “Open government” reforms  have constricted the space that is needed for political bargaining. The “pork” that once greased the system has mostly disappeared. Over time, the institutional immune system has collapsed. The ensuing chaos has produced further public disaffection and populist agitation against “the establishment.” It’s a feedback loop, and not a good one.

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What Power of the Purse?

A few years ago Eugene Steuerle (Brookings) and his colleague Tim Roeper developed a “fiscal democracy index.” It measures the extent to which revenues are already claimed by permanent programs—the big entitlement programs, and interest payments on the debt. The remaining “discretionary” portion has to pay for the entire government’s operations, from defense to roads to education to the DoJ. The trajectory over the past half-century looks like this: Note how in this as in many other respects, the Clinton years look pretty darn good. And note how the index turned negative in 2009. The picture going forward doesn’t look much…

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