In an exceptionally important article, Chris DeMuth addresses the deep pathologies of our politics. Chris has written extensively about the fateful drift into executive government, which (he cogently explains) is also a debt-ridden and lawless government (see his website here). In this piece, he tackles a principal institutional cause of those tendencies: for Congress, legislation has become an unnatural act, to be performed only in extremis. Thus, a constitutional revival will require a cultural revival. Recovering Congress’s lost powers will require relearning legislative skills, redirecting legislators’ energies, and risking the ire of party constituencies who are unfamiliar with the obligations of…
Many are calling for a special prosecutor to take over the IRS scandal and with pinpoint legal accuracy get to the bottom of what happened. I suppose some now want a Kenneth Starr figure to appear and ram the Obama administration with subpoenas, depositions, grand juries. Now that there is something at stake, unlike White House interns, we actually do want the full truth, and, we suspect, Congress might not be up to it. However, Andy McCarthy refers us back to Scalia’s opinion in Morrison v. Olson where he reminded that investigations are an executive branch function and can never be separate from the attorney general and the president. In short, that barking dog’s leash can get yanked any number of ways.
In the Weekly Standard, Chris DeMuth explains why the dreaded “fiscal cliff” is actually more like a curbstone and the hoopla surrounding it, a “charade.” Near-term, Chris argues, we have to figure out a contingency plan for California’s impending insolvency. We also have to figure out how to align the transfer state that the middle class seems to demand with a transfer state it’s willing to pay for. As it is, we’re simply transferring income from future generations. That cannot last, and it’s grossly undemocratic and unfair.
Armchair economists and political pundits are wailing about the impending year-end “fiscal cliff.” If Congress and the President do nothing, the Bush tax cuts will expire; an automatic sequester will hit the Pentagon and various “discretionary” programs; and a gaggle of temporary tax cuts, from the alternative minimum tax “patch” to a Social Security payroll tax cut and similar “stimulus” measures are scheduled to terminate. Forecasters warn that the triple hit might subtract something like 2.5 percent from economic output and reduce already-anemic GDP growth by a percent or so. Defense analysts and Pentagon officials warn of budget cuts that…
Very soon, quite probably within a decade, we will confront a constitutional collapse. Unless we revamp the constitutional order in major respects, it will simply seize up or keel over (pick your metaphor)—in what way and with what consequences, no one can say. By “Constitution”, I do not mean the formal, written Constitution, which will survive for the foreseeable future. Rather, I mean what scholars sometimes call the “small-c constitution.” It encompasses, in addition to the formal arrangements, institutional patterns and practices that are (1) longstanding; (2) central to the political system’s operation; and (3) too entrenched to be broken by…
When the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan- the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and give each provision within that document the full effect intended by the Framers. The tacit postulates yielded by that ordering are as much engrained in the fabric of the document as its express provisions, because, without them, the Constitution is denied force, and often meaning.- William H. Rehnquist
Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting).
Today, as threatened in an earlier post, a few more words on competition, the Founders, and the Constitution and its federalism. What warrant do we have to read modern-day competitive federalism theory back into the Constitution?
Yesterday’s post on the climate change cases before the D.C. Circuit promised a few additional thoughts on the institutional aspects of the controversy. Here they are, delivered in customary good cheer.
By any measure, the EPA’s GHG regime constitutes the most ambitious, expensive, and expansive regulatory regime in the agency’s history. No consumer, no industry, no state will remain unaffected. As the EPA and the climate change “community” have emphasized, the problem is global and long-term. We’re not talking about removing a discrete pollutant (lead) from a few products (gasoline, paint). We are talking about a program that must be all-encompassing and run, with increased stringency, from here to eternity.
No one decided that we should do this. Certainly, the Congress didn’t decide it. The Supreme Court didn’t, or says it didn’t (it just told the EPA to follow the law). The EPA didn’t, or at least can plausibly claim that it didn’t and doesn’t (it’s just following the law and the Supreme Court). We are simply sliding into a bureaucratic nightmare.