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Better Days, Really?

Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda.  Herewith some examples of what that might look like.

  • Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a parliamentary party system. So “abstract” judicial review (as they call it) serves as a means of minority protection. Maybe under conditions of party government, we need that, too. And maybe because ours is a federal system, you’d want to extend the same right of review to one-fourth-plus-one of the states. (Why that quota? Because it takes three-fourths to amend the Constitution.) If you want to go down that road, though, you have to recognize (as ABW does not) that you’re on the other side of Marbury. You would probably have to amend Article III.
  • To check the diversion of agency settlement proceeds and block agency self-funding through enforcement, maybe you’d want an independent Board of Comptrollers, with a budget determined by the proportion of funds that go to the Treasury relative to other uses. This would be manifestly unconstitutional under existing law; but is possibly an effective response to the separation of parties.
  • Want to bite off even more? Instead of trumpeting an Administrative Procedure Act written for a very different age as holy writ (the ABW “strategy”), you’d want to write a new APA. For example, instead of ALJ’s and “hearing examiners” inside each agency with appeal to the agency head or commission itself, maybe you’d want a single, really big administrative judiciary to adjudicate all administrative disputes across all agencies, with appeal to a single Supreme Administrative Court (and further appeal to an Article III court for clear error or unconstitutionality). That way, you would block agency regulation by adjudication. You’d also make agencies more executive, thus upending all the claptrap about “independent” agencies that “deliberate” their way to “expert” solutions: they’re the President’s henchmen and that’s that. And maybe over time the Administrative Courts—not Article III courts, but with fixed terms and protected against removal—would build up prestige and power. Institutional actors who can’t maximize anything else tend to do that.
  • Here’s a smallish item: if you follow the logic of party government the existing Succession Statute, which has the Speaker next in line after the President and the VP, is manifestly crazy and quite probably unconstitutional. Why Congress, and why someone from the other party? Citizens who vote Clinton-Kaine shouldn’t be asked to put up with President Ryan. The AG or the Secretary of State would be a far more compelling choice.

I did not invent this institutional model. I borrowed it from France and the Prussian Court system circa 1890. What it says is that yes, Virginia: we have an administrative state like that.  Instead of hankering for a lost separation-of-powers world, let’s get used to it and secure as much lawfulness as we can, under conditions of party government and executive dominance.

To be very clear: I am not wedded to any of the ideas just suggested. I do not even advocate them. If someone has promising ideas to re-approximate a more conventional separation-of-powers regime, I’m all ears. Likewise with other, perhaps more effective proposals for  responses to party government. I cheerfully acknowledge, moreover, that my off-the-wall suggestions can’t be put on the wall by a desolate party apparatus that is trying to make the best of a very bad situation.

All that said you have to believe that you get to live and fight another day. On that theory you should engage thoughts that are commensurate to the challenge. Those thoughts must be constitutional; long-term; incentive-compatible; and structural. And it’s not a moment too soon.

In a clutch scene in the wonderful movie Sully, the federal authorities confront Captain Sullenberger with simulations purporting to show that he could have landed his Airbus at LaGuardia, rather than ditching it on the Hudson River. Sully (Tom Hanks) sits through this and then says, “Could we get serious now?” At his request they run more realistic simulations and sure enough: no way anyone could have landed that plane on a runway.

We’re a million miles from LaGuardia. We have a vessel with 320 million cranky passengers, dead engines, twelve months max until the next financial meltdown or some other flock of birds, and a pilot with no regard for anything or anyone except her forthcoming Nobel Prize and her Foundation.

Could we please get serious?

Reader Discussion

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on October 25, 2016 at 11:08:50 am

"I did not invent this institutional model."
" I am not wedded to any of the ideas just suggested. I do not even advocate them."

No, you don't. What you do is make some pretty clear, cold observations about what "is"

And that is quite something these days. I'm surprised they let you stay in the Academy.

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gabe
on October 25, 2016 at 14:08:16 pm

The administrative courts sound just like Article III courts in drag. If this was a viable suggestion, I'd opt for the undisguised and constitutional solution of Article III district courts.

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Jimmy
on October 25, 2016 at 14:29:24 pm

Yes, but then aren't we right back where we started with the Courts not wishing to be inundated with whether or not a six year old must undergo 60 hours of training in order to operate a lemonade stand as some Agencies would insist.

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gabe
on October 26, 2016 at 00:27:29 am

It is not likely that any of this will receive serious consideration until the great fiscal fan becomes totally brown.

Hopefully, when (and if) such consideration comes there will be some recognition that separation of **functions** needs to be observed as much (and more thoroughly) as separation of **powers,** particularly given the prior reasons for reliance on the latter to preserve principles essential to government in an open society.

As has been noted elsewhere in these discussions, all "governing" functions of the several branches of our current form of organization flow through and impact the "governed" through the administrative facilities. It is in those administrative facilities that the **functions** must be combed apart and their impacts on individual liberties brought under some greater, or better, degree of control by those who delegate the origins of power.

At this stage in the development of our society is it not possibly dysfunctional to concentrate on separating powers so that their possessors and users may use power against power; rather than enforce the separation of functions and limiting powers to the requirements of those functions once separated?

Are we worshiping "separation of powers" simply as an old ideology? Shall we come to rely on struggles for "turf" to limit the constraints of bureaucracies on freedom?

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R Richard Schweitzer
on October 26, 2016 at 07:05:25 am

The whole problem with separation of powers thing is that it requires self-interest in power acquisition to function.

Without re-dressing and restoring naked motivations, how is an alternative arrangement supposed to work any better than the devolution into complete judicial deference to regulatory capture to be averted?

But I think Greve's briefest look into alternative possibilities deserves lengthier consideration.
Thank you for sharing this.

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Orson
on October 26, 2016 at 10:29:46 am

"Without **re-dressing and restoring naked motivations,** how is an alternative arrangement supposed to work any better than the devolution into complete judicial deference to regulatory capture to be averted?"

If the terms "re-dressing and restoring" infer "to the Administrators" or "to the occupants of the several branches" (who in turn devolve or delegate), then the countervailing powers of the forms of funded civil disobedience, such as suggested by Charles Murray could work as he outlines to slowly erode the Administrative State.

The "judicial deference" occurs in the current limited forums, with limited remedies, limited access to remedies all constrained by the separate functions of the judiciary under our system of legal fora.

Establishing another "arena" for direct and open access challenge of Administrators' actions by those impacted could (and if properly structured, would) eliminate prospects for "deference." The challengers would come from the very public which delegated the authorities that were devolved to the administrators by legislators.

There are other steps, such as taking away rule making authority and placing it in the responsibility of a single rule-writing body to which all administrators would have to submit applications for rule issuances. At least one state does this.

Legislators have taken the easy ways out of the real functions of legislating, and are now enormously "staffed" to continue doing so.

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R Richard Schweitzer
on October 26, 2016 at 11:40:45 am

On a slightly different line, I would take issue with Greve's assertion that the Succession statute is a) crazy and b) unconstitutional.

Is not the reasoning for the Speaker of the HOUSE similar to the thinking behind having the HOUSE decide a contested election? That is, since the HOUSE is intended to be the most closely tied to the electorate, and theoretically represents the most current electoral, (and perhaps more popular votes) choice, then having the Speaker assume the duties of the President is a means of assuring that the peoples voice is considered.

As for unconstitutional, where does the constitution prohibit this? Again, to simply palce some cabinet member in the role is to allow an unelected official to assume the role. Perhaps, that is the unconstitutional aspect of the statute (just kidding).

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gabe
on October 27, 2016 at 01:22:46 am

Gabe, your characteristically thoughtful "take issue with Greve" post contains and promotes the thoughts I'd hoped to spark. The succession business is "smallish" because it's so unlikely; but once you think about it it's a highly useful exercise.

Putting aside that cabinet members are obviously "officers" [of the United States?] in a way in which Paul Ryan is not (and thus the scholarly dispute over whether the Succession Statute is unconstitutional on that ground): what's the POINT of this provision, or the implementing statute? In a separation of powers frame of mind, your suggestion makes sense: keep it close to the people. (Not an airtight argument for the current arrangement, but respectable.) If that frame of reference no longer works or corresponds to real life, then--what? The logic of party government, it seems to me, is that "the people" who elected the party and its leader are the people who count--and not the current electorate. I recognize that parliamentary systems are an odd comparison in some ways, but: when prime ministers get tossed or resign (a scenario specially contemplate in Art II!) it's the party that gets to determine the succession; and depending on the system etc you may or may not get an immediate new vote. The point is to ensure continuity in government.

Now imagine a party contest between two hopelessly discredited presidential contenders; and imagine that further disillusion sets in or scandal hits soon after one gets elected. Imagine further that the VPs are by then also discredited by virtue of associating with these low-lifes. (I'm totally making this up, just to illustrate my constitutional point.) In that scenario, do we seriously believe that the will of the people would be validated, or that the manifest constitutional purpose of stability in government would be enhanced, by giving the job to the Speaker of whatever party? In the ex ante analysis that matters, would we even know what we're doing or voting for? Confused and wrong-headed as the Convention was about all this Article II business, I cannot imagine any one of them having dreamt up what we now have.

Much better, it seems to me, to make clear that the party you voted for will stay in its elected office(s) even if its strictly elected officials were to resign. We can and ought to do this by statute. Whether the existing statute is strictly unconstitutional is a harder question. If it's not, we ought to amend the Constitution.

No?

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Michael Greve
on October 27, 2016 at 01:26:57 am

sorry: if it is, we ought to amend the Constitution.

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Michael Greve
on October 27, 2016 at 10:33:49 am

Thanks for response.

I have commended you for speaking of things "as they are" - again, you do so. I forget sometimes that I also slip back into wishing for things as they *ought* or were (allegedly) intended to be. My bad!

Interesting re: Parliamentary governance. Frank Buckley advocates precisely this. I ain't prepared to go there BUT speaking of things as they are - Party Governance is getting us perilously close to that state.

GO CUBBIES!!!!!!!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.