U.S. Capitol (Tono Balaguer/Shutterstock.com)Situational Constitutionalism and the Congress of Collective Inaction
President Trump’s executive order on healthcare received a great deal of attention, but almost all of it emphasized the order’s short-term policy implications. Commentary from the Left ignored the constitutional implications of unilateral executive action, so if anyone was going to speak up about those constitutional issues, conservatives would have to do so. Their record thus far has been mixed. The editors of National Review, like their liberal counterparts, addressed the policy angle, not the constitutional one. Yuval Levin, on the other hand, wrote in that same publication that officials in the administration in which he served (Bush II) doubted whether…
Dysfunctional Constitutional Reform
To review Stephen M. Griffin’s new book, Broken Trust: Dysfunctional Government and Constitutional Reform, is to envy his comfortable life within the academic university cocoon, a place where dissenting views fall safely within a very narrow range of well-mannered and moderate Progressive reasonableness.
In Praise of Gridlock, Federalism’s BFF
The Strand, East 12th Street and Broadway, Manhattan, New York City (Drop of Light/Shutterstock.com).
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.
Sire, the People Are Revolting!
The Strand, East 12th Street and Broadway, Manhattan, New York City (Drop of Light/Shutterstock.com).
In the shiver-looking-for-a-spine department, the Boston Globe reports (paywall) that “two dozen of the nation’s top political scientists” held an October confab in California, fancying themselves “modern-day writers of the Constitution” anointed to rescue the republic from “an explosion in campaign money, the rise of political factions, and politically motivated redistricting,” all of which has induced a “democratic deficit.” Based on the admittedly limited scope of the Globe’s reporting on the meeting, the idea of a democratic surplus, a likelier suspect, seems not to have occurred to them.
