Friday, February 19, 2016

Congress and Plausible Deniability

In "Did Justice Scalia Already Give Us the Solution to the Problem of Filling His Seat?," Selwyn Duke points out that it is absurd, given our form of government, that a position on the Supreme Court should be so important. "Consider: in a representative republic of 320 million people, we’re all now talking about how one appointment of one unelected lawyer can radically change the face of American law, rights, and freedoms. Anything wrong with this picture?" Although Thomas Jefferson repeatedly warned of the dangers of the Supreme Court being the sole arbiter of the meaning of the Constitution, Congress, the President, and the States have all gone along with this seemingly innocuous usurpation of the Constitution. Duke writes:
Just as bad, however, is when we abide by judicial supremacy again and again, simply because it has been done before. Part of what motivates this deference is ignorance and (bad) habit, and part is cowardice and political expediency. After all, hiding behind unconstitutional court rulings allows politicians to avoid making difficult decisions. When Ohio governor John Kasich said last June after Obergefell that faux marriage is “the law of the land and we’ll abide by it,” he was essentially stating “Hey, don’t look at me. The Court did it!” Of course, he also said that now “it’s time to move on,” which he was more than happy to do. He has got his political career to consider -- Constitution be damned.
Congress' desire to avoid making the hard decisions obliquely comes up in William S. Lind's essay at The American Conservative entitled "Failure as a Way of Life: The logic of lost wars and military-industrial boondoggles." In it, he notes that most members of Congress only "think about [ ] having a successful career as a professional politician and retiring very, very rich.” The way to do this, according to Lind, is to be part of the Establishment--and not rock the boat. Fred Reed made a similar point recently in his piece entitled "Emancipation of Military: Containing the Citizenry," in which he argues that the military has finally reached its goal of achieving independence from control by civilians. Part of this, as Reed explains:
... was the quiet and de facto abolition of the restrictions imposed by the Constitution. As long as that document was held to be canonical, Congress would have to declare war before the military could attack anyone. A congressman voting for a war would have to explain to his constituents why he wanted to spend a trillion dollars on killing remote peasants when his jurisdiction had crumbling schools. People in Oklahoma might ask, “Can’t we grow our own goat herds more cheaply and kill them here?” 
Congress was happy to  shed this responsibility, or for that matter any responsibility. And so it did. The Commander-in-Chief  was now able to send troops anywhere he pleased. It was  his private army. He could , in effect, contract out the US military to [another country] to crush its enemies or to the petro-interests to try to capture oil fields.
Not discussed in these prior articles, though, is the impact of the 1946 Administrative Procedures Act (APA), which set out a systematic and Congressional approved method of handing off its legislative authority to administrative agencies via rule making. That is, Congress would create some broad sweeping legislation, but leave the details (and the devil is always in the details) to the bureaucrats to decide. Thus the reason that some 40 years after the Clean Air Act was passed, the EPA could suddenly discover that it had authority to regulated CO2 emissions, and shut down whole sectors of the American economy.

And to the real question: Do we really have a representative democracy if the representatives no longer make the important decisions?

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