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?