How to Hold a Legislative Leader Accountable

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.

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What Is Judicial Equality?

Law and Order Pillars in the Supreme Court during the day

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.

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Politicizing the Constitution Is Necessary and Proper

“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…

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When Is “the Law” Violated Under the Constitution, Anyway?

Supreme Court of United States

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.”

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Ramsey and Tillman on the Receive Ambassadors Clause

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.

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The Inevitability of Monarchy

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.

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When Deference Is Dereliction

Section 3331 of the United States Code prescribes the oath of office for the House of Representatives. Rep. James E. Clyburn (D-S.C.) has taken it 11 times, which is enough to commit to memory its opening pledge—to “support and defend the Constitution of the United States against all enemies, foreign and domestic; [to] bear truth faith and allegiance to the same.” Anyone who promises to do the same thing 11 times can probably find a shortcut, and Clyburn has evidently identified one: outsourcing constitutional protection to another branch of government.

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The Fatal Conceit

juengling_kappes

“Have you heard of the wonderful one-hoss shay, that was built in such a logical way, it ran a hundred years to the day?” If you haven’t, you’ve missed one of the most amusing poems of the nineteenth century, Oliver Wendell Holmes Sr.’s splendid satire of the American constitution. Shays or carriages break down, said Holmes, when one joint is stronger than the next. “There’s always somewhere a weakest spot, … and that’s the reason, beyond a doubt / A chaise breaks down but doesn’t wear out.” And so the Deacon built a carriage that wouldn’t break down because each part was a strong as the rest. On and on the carriage went, until 100 years from the day it was made it all turned into dust. “End of the wonderful one-hoss shay, logic is logic, that’s all I say.”

The poem was written three years before the outbreak of the Civil War, when the defects of a logical constitution seemed all too apparent to Holmes’ fellow Bostonians. Not that the Framers were logicians, of course. They were almost all practical politicians and simply strove to give us something better than what they had had.

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The Constitutional Mandate of 2014

rugby scrum

The political puritans who control most editorial boards will doubtless mourn the tragically short life of the ardently sought détente between the White House and the ascendant Republicans in Congress. The good-government words were trotted out the day after the election—cooperation; grease the Capitol’s rusted legislative skids; we can hold hands to pass legislation and sing folk songs while we do—only to collapse under the President’s threat of unilateral action on immigration. Good. The good-government shtick—let us, said the President, “explore where we can make progress”; Mitch McConnell chimed in that “maybe there are things we can agree on to make progress for the country”—was nonsense to begin with.

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