The panoply of antipolitical candidates seeking the Republican nomination and gaining varyingly intense but correspondingly fleeting degrees of traction—Donald Trump, Carly Fiorina, Ben Carson—are united in their aspiration to run government more like a business.
Like movie sequels, second editions of notable scholarly books often disappoint. Phillip J. Cooper’s By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, second edition) is an exception.
This past week, a unanimous panel of the D.C. Circuit (Judges Kavanaugh, Pillard, and Rogers—Judge Kavanaugh writing) held that State National Bank of Big Spring, Texas (“SNB”) may proceed with its lawsuit challenging the federal Consumer Financial Protection Bureau’s authority on various constitutional grounds.
I live in Illinois, the worst governed state of the union. And the consequences have been severe. Our fiscal position is the last in the union and we are at the bottom for ease of doing business. Thus, in the current state of taxation and regulation, there is no prospect of climbing out of the fiscal hole. And unless there is radical reform, Illinois is in terminal decline. It does not have California’s climate or New York’s Stock Exchange to break its fall.
There is bipartisan blame to go around. Governors of both parties for decades have been willing to sign legislation to provide unfunded pensions whose bills would come due when they were safely in retirement. Politicians of both parties have all declined to take on public sector unions and other special interest groups that have made the state uncompetitive. But even if fault must be laid at the door of both Democrats and Republicans, there has been one man who has been the power in Illinois politics for three decades and thus must be held most accountable—Michael Madigan, the Democratic speaker of the House for all but two years since 1983.
The accumulation of immense power in one legislative leader is a practical problem for democratic accountability in a system of separation of powers.
Whether it derives from the right or left, the argument for judicial supremacy—giving the judiciary the last word in sequence in constitutional interpretation—distills to this: Because no one can be trusted with unchecked power, the judiciary must be trusted with unchecked power.
When the topic is the Constitution, law professors and political science professors often talk past each other, and I’ll cop to talking past Randy Barnett, whose work commands respect even by way of dispute, first. But I’m not sure his reply at Volokh—which, in fairness, was primarily to Ed Whelan, mentioning my post here only in passing—reached my argument either. I never fired on the hill Barnett defended.
His post defended judicial review. I attacked judicial supremacy. There’s a difference.
“The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government. Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.” –Mike Huckabee, Fox News Sunday, May 24 As superintendent of a national conversation on the Supreme Court’s hegemony over constitutional questions, former Governor Mike Huckabee (R-AR) is less than ideal. He implicitly but indefensibly denies the Supremacy Clause, more on which presently. Even by way of…
Recently a New York Times headline blared: “McConnell Urges States to Defy U.S. Plan to Cut Greenhouse Gas.” It was the first in a barrage of mainstream media stories to the same effect. Majority Leader Mitch McConnell (R-KY) was telling the states to violate the law! An apalled ranking environmental committee Senator Barbara Boxer (D-CA) said she could not recall another top politician actually “calling on states to disobey the law.”
Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional. See also the posts by David Bernstein and Peter Spiro.
Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”
Seth argues for a strict reading of ambassador and public minister. He argues that Netanyahu is neither an ambassador nor a public minister. An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’” He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power). See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power). As a reading of the language, Seth’s argument here is quite plausible.
In The Once and Future King: The Rise of Crown Government in America, I argued that the United States was drifting towards the one-man rule of an all-powerful President. It’s not something people, especially American conservatives, wanted to hear, but then I had a secret ally in Barack Obama. He’s the gift that would never stop giving—but for term limits.