Balkinization: Constitutional Codification

Comments:

Such "codification of the Constitution" would update originalism to contemporary meanings, sort of like living constitutionalism accomplishes (in a way). Some originalists might consider such to violate Article V. This was sort of Thomas Jefferson's concept of the limits, lifespan of a constitution.

By the way, how might "domestic violence" be construed with a "codification"? Would "family law" be part of con/law?

# posted by

Shag from Brookline : 6:52 AM

How about, in tandem, a codification of the Declaration of Independence?

# posted by

Shag from Brookline : 7:37 AM

The "supremacy clause" of the codification most likely would be trumped by the Constitution's "supremacy clause," from the point of view of originalism. Add to the latter the claimed horizontal supremacy of the Court (at the federal level) over the Executive and Legislative branches.

Let's hear from originalists on interpretation of the Constitution as opposed to interpretation of the proposed statutory codification of the Constitution.

Imagine the brouhaha in Congress if such a bill were introduced on the dead hand of originalism. And if the codification were enacted, consider how Justices Scalia and Thomas might erupt.

Gerard, you're a pre-honeymoon trouble maker.

# posted by

Shag from Brookline : 8:09 AM

Gerard:

Why does a legislative codification of the text of a constitutional provision incorporate previous court "interpretations" of the provision which are not present in or incompatible with the text? Roe, for example.

# posted by

Bart DePalma : 11:27 AM

Shag: How about, in tandem, a codification of the Declaration of Independence?

Given that the Declaration establishes the grounds for just armed revolution to remove and replace any government which infringes on the rights of the people and rules without the consent of the governed, post-codification judicial interpretations of the Insurrection Act would be fascinating, especially since our present regulatory dictatorship appears to meet the Declaration's threshold for revolution.

# posted by

Bart DePalma : 11:36 AM

Constitutional avoidance does not appear possible here if all Congress does is quote the Constitution verbatim. The statute is the Constitution.

And, the assumption is when Congress quotes commonly understood words of some legal art that they are accepting the meaning given to them. If we are just working off the text (as compared to legislative history), the courts will still have to analyze the text of the statute to answer any real hard questions.

The tax bit is too cute given it avoids the details, so I will let that pass.

But, the next point is interesting: Congress is implicitly passing what the Constitution means today. Or is it? By merely passing the text, they might be passing the "right" version. The courts might not "properly" apply it but by passing the text (not the text with a "whereas" noting they intend the text to mean what current doctrine says it means) but if the "clear meaning" of the text is ignored by the courts, Congress might say they are ignoring what the statute says.

And, take the Roe v. Wade example. How would they overturn it? Details matter there. If they say that the DPC doesn't protect the right to choose (by now, it is not the only basis anyhow), does that mean the congressional statute version does protect it? Why? The statute might implicitly rely on whatever the courts say it means. That is usually how such constitutional sounding language is defined anyway.

The passage of the Constitution as text w/o comment is a complicated business. A final thing might be that it might in effect legitimize dubious aspects that were included at the time as compromises that by now have outlived their usefulness and therefore can be applied narrowly. But, if Congress today passes it as a statute, an argument might be made that the language in question should retain its full legitimacy.

This isn't the only way to interpret it, but it is a possible way. Complicated.

# posted by

Joe : 12:14 PM

"Gerard, you're a pre-honeymoon trouble maker."

I'm noting at various blogs (Dorf on Law, Volokh Conspiracy) people are getting married, going on honeymoons, having babies etc.

It's like the end of some Greek comedy or something in the legal blogosphere.

# posted by

Joe : 12:18 PM

"specially since our present regulatory dictatorship appears to meet the Declaration's threshold for revolution."

That's one of the more absurd things I've read in a while.

# posted by

Mr. Whiskas : 12:48 PM

Oh, come on, Mr. Whiskas. Compare the feds taking over and dismissing the murder prosecution of Lon Horiuchi, to "For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:"; It's a precise match.

# posted by

Brett : 2:03 PM

The grammar of this post is so off-putting that it's hard to appreciate the content.

If the Constitution was also a statute, though, then courts would always have the option of avoiding a constitutional question and letting Congress (or a state legislature for a state constitution) reach a contrary conclusion.

Well, the Constitution wasn't a statute and it isn't a statute, so there's no need to read the independent clause, never mind that it begins with the gratuitously didactic then.

What the writer means to say is, "If the Constitution were also a statute, ...."

A more complete answer…. is as silly as a more perfect or more unique one. There is no such thing.

Suppose the Court then overturns Roe v. Wade. Nothing would change absent legislative action. The statute would stand unless the doctrine took the view that permitting abortion was unconstitutional.

It shows grammatical schizophrenia, confusing indicative and subjunctive verb moods. I think it should read:

“Suppose the Court then overturned Roe v. Wade. Nothing would change absent legislative action. The statute would stand unless the doctrine took the view that permitting abortion were unconstitutional.”

Indeed, no student of history would conclude that “permitting abortion was unconstitutional” at some point. Indeed, it’s not clear that “permitting” anything was ever unconstitutional.

It seems to me that the LSAT was once used to weed out those who can’t write in English. Has it changed?

# posted by

jimbino : 3:29 PM

Slavery, a non-republican form of government... I can think of a few things which it is actually unconstitutional to permit.

The real issue in regards to abortion, which the enactment of the relevant clause in the Constitution (Whatever it might be...) would not change, is that there are numerous laws already on the books prohibiting it. Were Roe v. Wade overturned, they would still be on the books, and suddenly enforceable.

Declaring a law unconstitutional does not, after all, repeal a statute. It just sits there, enforcement prohibited, until the Court changes it's collective mind.

# posted by

Brett : 4:30 PM

BD: "specially since our present regulatory dictatorship appears to meet the Declaration's threshold for revolution."

Mr. W: That's one of the more absurd things I've read in a while.

If you would like to discuss this, I have a post on the subject at my blog here.

# posted by

Bart DePalma : 4:36 PM

What specific provision(s) of the Constitution authorize Congress to pass such a codification?

# posted by

Shag from Brookline : 10:13 PM

Shag: What specific provision(s) of the Constitution authorize Congress to pass such a codification?

Good point.

Section 5 of the 14th Amendment allows Congress to codify the Bill of Rights against the states.

No provision of Article I or the Bill of Rights appears to empower Congress to engage in the redundancy of codifying the Constitution's limits on Congress' own powers.

Gerard, why again did you offer this hypo?

# posted by

Bart DePalma : 11:29 PM

Congress' powers under the Constitution extend beyond those enumerated in Article I. Some of such additional powers are set forth in other Articles of the original Constitution and in some of the Amendments in addition to the 14th Amendment. (One must comb through the Constitution as amended to identify them all, but Googling can help.)

Our SALADISTA's (FKA our yodeler) assertion:

"Section 5 of the 14th Amendment allows Congress to codify the Bill of Rights against the states."

is not quite accurate. It is THE 14th Amendment that incorporates "some" of the provisions of the Bill of Rights, and sections of the 14th Amendment empower Congress to pass provisions to implement the 14th Amendment. Both the 13th and 15th Amendments similarly empower Congress to pass provisions implementing them. (This week SCOTUS will "determine" whether Congress implemented properly.)

My "quarrel" with our SALADISTA is semantical. On the subject of incorporation, the Court has addressed this in bits and pieces over the many years since the Civil War Amendments and not all of the first 8 provisions of the Bill of the Bill of Rights have been incorporated as yet. Perhaps Gerard's new book will accelerate the Court in this regard.

# posted by

Shag from Brookline : 7:05 AM

"Congress' powers under the Constitution extend beyond those enumerated in Article I."

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That Congress' power extend beyond those enumerated is not only not implied by the constitution, it is specifically denied by it.

# posted by

Brett : 10:30 AM

Brett

I consider what happened at Ruby Ridge to be quite the injustice, but far below warrant for armed revolution. Besides, it's a poor case for showing federal tyranny as the 9th Circuit overruled the district court which dismissed the charges and then it was the newly elected local prosecutor who dropped the charges.

Bart

I don't tend to click offsite, if you'd like to elaborate on your seemingly irresponsibly absurd comment here I'd be glad to discuss that.

I can understand one being upset with the amount of decisions and rules emanating from unelected bureaucrats, but this falls very far short of what the Declaration of Independence is talking about. Courts slap down bureaucrats daily. But more importantly, bureaucrats act under laws, perhaps too delegatory laws, but laws passed by elected officials. Our elected officials could stop this anyday (indeed, the House alone could via the pursestrings); that they do not, and continue to be elected, demonstrates that far from thwarting the people this bureaucratic power meets with its approval. When people vote for candidates who vote for such things that's hardly tyranny.

# posted by

Mr. Whiskas : 10:34 AM

It's a fair point to say that Congress may lack the power to enact a law like the one that I'm describing. A state legislature could do it though.

Why did I offer this hypo? Oh, I just thought it was interesting. Not everything needs to serve a goal.

# posted by

Gerard N. Magliocca : 10:49 AM

"That Congress' power extend beyond those enumerated is not only not implied by the constitution, it is specifically denied by it."

The 10A says "powers delegated" not "enumerated." This replaced the Articles of Confederation which said "expressly delegated."

It is far from clear the "delegated" and "enumerated" means the same thing. For instance, nations have basic powers (see Declaration of Independence) and it is now accepted by the USSC on down that such sovereignty is in some cases included implicitly.

If we want to underline what the document says, "enumeration" isn't the word used. As to Shag's comment, Art. I includes this:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Not just "powers in Art. 1," in part since Congress has other powers. This continued to be true. See, e.g., @5 of the 14A

# posted by

Joe : 12:00 PM

Mr. W:

OK, you asked for it.

When the American left attempted to transplant their progressive ideology from Bismarckian Germany and Napoleonic France, they ran into two major roadblocks - our representative democracy and our Constitution's checks and balances and guarantees of individual liberties. Progressives could not democratically enact much of their agenda to manage the economy and the courts enforcing the Constitution blocked much of what was enacted.

Progressives went to war with our Constitution's checks and balances and started championing a new administrative state where Congress would be relegated to figurehead status, pronouncing broad policy goals, while a new class of educated bureaucrats would govern the country free from the "corrupting influence of politics."

For the primary sources, I would recommend American Progressivism: A Reader

It took about a century, but the progressive dream of a dictatorship by bureaucracy has now been realized.

The Federal Register of regulations imposed by the bureaucracy now dwarfs the U.S. Code enacted by our democratically elected Congress and the bureaucracy's production of regulations is truly staggering.

Earlier this month, the libertarian Competitive Enterprise Institute detailed the scope of American bureaucratic rule:

Total costs for Americans to comply with federal regulations reached $1.806 trillion in 2012. For the first time, this amounts to more than half of total federal spending. It is more than the GDPs of Canada or Mexico.

This is the 20th anniversary of Ten Thousand Commandments. In the 20 years of publication, 81,883 final rules have been issued. That’s more than 3,500 per year or about nine per day.

The Anti-Democracy Index – the ratio of regulations issued to laws passed by Congress and signed by the president – stood at 29 for 2012. That’s 127 new laws and 3,708 new rules – or a new rule every 2 ½ hours.

Regulatory costs amount to $14,678 per family – 23 percent of the average household income of $63,685 and 30 percent of the expenditure budget of $49,705 and more than receipts from corporate and personal income taxes combined.

Combined with $3.53 trillion in federal spending, Washington’s share of the economy now reaches 34.4 percent.

(Continued)

# posted by

Bart DePalma : 12:58 PM

Even folks like liberal law professor Jonathan Turley are beginning to realize the ill consequences of bureaucratic rule:

[The federal government] is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

For much of our nation’s history, the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations...

The judiciary, too, has seen its authority diminished by the rise of the fourth branch. Under Article III of the Constitution, citizens facing charges and fines are entitled to due process in our court system. As the number of federal regulations increased, however, Congress decided to relieve the judiciary of most regulatory cases and create administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000...

We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

(Continued)

# posted by

Bart DePalma : 1:00 PM

I highly recommend reading all of Turley's superb essay, but the good professor missed two key elements of our bureaucracy's power.

First, the Constitution created an array of checks and balances on the exercise of power by our elected branches. In order to enact a law, it must be approved by two different legislative chambers (with the added hurdle of the Senate filibuster rule) and then survive a presidential veto. These checks and balances now serve to shield the bureaucracy from nearly any accountability to the people's elected representatives. So long as they hold the White House or one chamber of Congress, progressives can and do frequently block legislation limiting the bureaucracy's regulatory power or even reverse a single onerous regulation.

Next, progressive courts have long ago abdicated their role as the last defense against bureaucratic tyranny by granting the bureaucracy enormous latitude in the interpretation of it's own power. Indeed, the unelected courts sometimes expand the portfolio of a bureaucracy substantially beyond that provided in the already broad enabling legislation. See Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Conversely, the courts only reverse a tiny fraction of the daily manufacture of red tape.

This is the definition of unchecked tyranny and it is hardly hyperbole to note that our Republic is in twilight.

How does this modern tyranny compare to those cited in the Declaration of Independence to justify armed revolution? These indictments of the Declaration apply even more today:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. (A very apt description of a modern bureaucracy which dwarfs that of the English monarch.)

For imposing Taxes on us without our Consent (see the modern bureaucracy's numerous fees and fines which have far greater impact than the British tea and stamp taxes).

For depriving us in many cases, of the benefits of Trial by Jury (Administrative hearings.)

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments (Undermining today's Constitution.)

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever (Bureaucratic rule making.)

The bureaucratic decrees, fees and penalties under Obamacare alone are arguably more onerous than the entire list of grievances listed in the Declaration of Independence to justify armed insurrection.

When he emerged from the concluding session of the Constitutional Convention, a woman asked Ben Franklin, “Well Doctor, what have we got, a republic or a monarchy?”.

Mr. Franklin replied, “A republic, madam – if you can keep it.”

We are losing ours and I see no easy democratic means of recovering it.

# posted by

Bart DePalma : 1:02 PM

Following my last comment, I went through another stack of downloaded articles to recycle. One that I saved is Jack Balkin's draft of "The Reconstruction Power" available at:

http://ssrn.com/abstract=1558749

that addresses the several enforcement clauses in the Civil War Amendments conferring powers on Congress. The draft article is pertinent to a couple of cases to be handed down next week. I assume this draft was finalized and published in a law review. In any event, it should be clear that not all of Congress' powers are set forth in Article I of the original Constitution. In fact, as I suggested in my earlier comment the original Constitution provides for certain powers of Congress in addition to those enumerated in Article I. So that Brett's comb doesn't go to waste on this hairy subject, I suggest he take the time to comb through the original Constitution in a search for powers of Congress outside of Article I.

# posted by

Shag from Brookline : 1:17 PM

Bart

I appreciate you putting forward your justification for your claim.

I think though your justification contains within itself all that is needed to rebuke it.

"Congress would be relegated to figurehead status, pronouncing broad policy goals, while a new class of educated bureaucrats would govern the country free from the "corrupting influence of politics.""

The bureaucracies power, goals and funding all come by express legislation enacted by our democratically elected representatives. You may think our representatives have delegated too much of their authority to these agencies. Perhaps you are correct. But the American people don't seem to be persuaded when it comes time to choose their representatives.

Contrary to our system being usurped it is working as laid out, you just don't like the direction. That is hardly tyranny. In fact, if anything it seems to be you that don't like how the system works and would seemingly want to 'work around' it. Note when you say "So long as they hold the White House or one chamber of Congress, progressives can and do frequently block legislation limiting the bureaucracy's regulatory power."

This complaint can be summarized as "the people simply refuse to elect people in our respective coordinate branches that will do what I'd like!"

To sum up, our 'regulatory state' could be easily curtailed if the people in the White House and Congress wanted it to. They don't, and the people get to regularly fire them for that. They haven't. This is not tyranny, this is your elevating the fact that your political ideals have not resonated with the American people sufficiently to the status of facing an usurpation.

The only part of the Declaration this calls to my mind is the part that reads "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes."

# posted by

Mr. Whiskas : 1:30 PM

To address your particular points from the DOI:

1. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. This rests on a subjective notion of 'harass' and 'eat out their substance' of course, but more importantly note the complaint is that "HE has erected...and sent hither..." Our offices have been "erected...and sent hither" by our consent (democratically chosen representatives)

2. For imposing Taxes on us without our Consent (see the modern bureaucracy's numerous fees and fines- all of which are authorized by our democratically chose representatives, so not "without our Consent"

3. For depriving us in many cases, of the benefits of Trial by Jury (Administrative hearings-which can be reviewed in Article III courts where the 6th Amendment stands

4. For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments (Undermining today's Constitution-this is simply a vague, subjective claim that our Constitution has been undermined, involving a dispute over what in fact is constitutional. Perhaps more importantly, in fact Constitutional checks are regularly and successfully invoked)

5. For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever (Bureaucratic rule making-this one is several times absurd: of course it refers to actual suspension of legislatures done by the Crown, we have not had that; additionally bureaucratic rule making is authorized by Congressional legislation so it's particularly absurd to equate it with 'suspension' of the legislature)

# posted by

Mr. Whiskas : 1:41 PM

CJ Roberts referenced Barnette is a recent opinion on strings on aid held to violate the 1A. This brought to mind this essay by the OP author:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2236457

In effect, this is a case of the executive affecting how the Constitution's text is interpreted, here the BOR in particular.

# posted by

Joe : 2:08 PM

As to Shag's latest, some ridiculed the Republican House's read the Constitution ceremony. Besides touching video (see, e.g., Rep. Giffords) and concern about editing, the idea isn't bad. Prof. Amar especially is someone who finds use of the text quite helpful. It is not quite as obvious as some make it out to be, however.

# posted by

Joe : 2:16 PM

Mr. W:

The bureaucracies power, goals and funding all come by express legislation enacted by our democratically elected representatives.

And the Roman Senate chose dictators to run the country at the end of their republic.

Congress' unconstitutional delegation of their legislative power to an unelected and unaccountable bureaucracy does not make the decrees of that bureaucracy democratic.

"But the American people don't seem to be persuaded when it comes time to choose their representatives."

That is by design. Progressive politicians never have to go on the record casting a vote for rules that the bureaucracy imposes for the most part outside of the public's view. For the most part, progressives even avoid voting on legislation which would curb the power of the bureaucracy. See the Democrat Senate.

BD: For imposing Taxes on us without our Consent (see the modern bureaucracy's numerous fees and fines)

Mr. W: all of which are authorized by our democratically chose representatives, so not "without our Consent"

Congress unconstitutionally delegating the power to raise taxes (fashioned as "fees") and levy fines to the bureaucracy does not mean that Congress enacted those fees and fines at our request.

BD: For depriving us in many cases, of the benefits of Trial by Jury (Administrative hearings)

Mr. W: which can be reviewed in Article III courts where the 6th Amendment stands

Article III courts grant the non-jury rulings of administrative judges extreme deference.

The rest of your points are are some variation of the ones above.

# posted by

Bart DePalma : 4:00 PM

1. It might be your opinion the delegation is unconstitutional, but that is certainly disputed. More importantly is your claim that "delegation of their legislative power to an unelected and unaccountable bureaucracy does not make the decrees of that bureaucracy democratic." By that logic a Republic is itself 'undemocratic,' but the better response is that if your concern is tyranny how can a willful delegation by regularly democratically chosen representatives be at its center?

"politicians never have to go on the record casting a vote for rules that the bureaucracy imposes for the most part outside of the public's view"

This is hogwash. Not only do they have to vote on the initial authorizing legislation for agencies they retain the power to re-write regulations and defund agency actions. Some tyranny this is.

"Article III courts grant the non-jury rulings of administrative judges extreme deference."

Deference, but not extreme and not on all matters. But the larger point is that Article III courts, with their jury requirements, are open for those who wish to appeal the decisions of administrative bodies.

Your points are reduced to: Congress and the courts may be consenting to all this, and they are chosen in regular democratic elections, but I think what they are doing is contrary to our national values. Again, this is thin gruel for a charge tyranny, it looks more like one of sour grapes.

# posted by

Mr. Whiskas : 4:36 PM

"It might be your opinion the delegation is unconstitutional, but that is certainly disputed."

So freaking what? You say the Sun rises in the East, I say it rises in the West, Presto! Where the Sun rises is disputed. It's tautological: Anything some moron chooses to dispute is "disputed".

There is no point of the Constitution so clear that somebody who fines it inconvenient will not dispute it's meaning, and magically, it's meaning is in dispute.

Really, who cares if these things are "in dispute"? It's a given, they always will be they come to matter.

# posted by

Brett : 7:29 PM

Mr. W:

It might be your opinion the delegation is unconstitutional, but that is certainly disputed.

Only among the illiterate and the dishonest.

Art. I, Sec. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

if your concern is tyranny how can a willful delegation by regularly democratically chosen representatives be at its center?

A democratic body voluntarily ceding power to tyrants or dictators is the classical cause of death for a democracy or republic. See Greece and Rome.

The autocratic rule of a tyrant is by definition tyranny regardless of how the tyrant assumed power.

# posted by

Bart DePalma : 8:33 PM

"somebody who finds it inconvenient"

Or, when it actually is a matter of reasonable dispute, in an aboveboard sort of way.

# posted by

Joe : 9:54 PM

"Really, who cares if these things are "in dispute"? "

Brett, that was my polite way of saying this is a minority opinion.

But as to the substance of the positions...

"All legislative Powers herein granted shall be vested in a Congress "

Bart, this proves little to nothing since it's not obvious that a Congress regularly authorizing a delegation, with guidelines, to an agency and retaining the power to change it at any time has granted any legislative powers anywhere other than itself.

A simple analogy serves here: do the People not rule because they choose representatives to represent them?

"A democratic body voluntarily ceding power to tyrants or dictators is the classical cause of death for a democracy or republic."

This is an inapt analogy. Dictators in Rome were given unchecked power to deal with an emergency. Even in this version the analogy is inapt as the 'power' of the bureaucracy in the US can be checked any time Congress or the courts want to do it (in fact, as we've discussed, the House ALONE could check it at any time by merely withholding funds).

But the modern connotations of 'dictator' come from rulers like Cesar who declared themselves dictators in perpetuity. Not only is our bureaucracy subject to checks and curbs at any time, those who authorize it are regularly up for election from the people.

This shows the hyperbole here. If Julius Cesar had been subject to regular democratic elections and ongoing potential checks and curbing by regularly chosen representatives then he wouldn't be remembered as an autocrat today. Because that's far removed from tyranny. What makes Cesar a 'dictator' in the modern sense were things that don't apply to our bureaucracy at all.

# posted by

Mr. Whiskas : 11:00 PM

"Or, when it actually is a matter of reasonable dispute, in an aboveboard sort of way."

IOW, what matters is not the trivial, "being in dispute", but the strength of the case of those disputing it. What I object to are those who, (Because it's helpful to them that all language be regarded as unclear.) attribute importance to meaning "being in dispute" quite apart from any evaluation of the arguments.

"Brett, that was my polite way of saying this is a minority opinion."

Among the state's courtier class, lawyers, sure. Their current job is to rationalize that the state can do anything it feels like.

That's why Obama has been such a nightmare for anybody who believes in limited government or civil liberties: His prior profession was rationalizing that what the state wanted to do was permissible, and now he IS the state. Naturally he sees no obstacles to anything he feels like doing.

# posted by

Brett : 6:52 AM

Brett's:

"You say the Sun rises in the East, I say it rises in the West, Presto! Where the Sun rises is disputed. It's tautological: Anything some moron chooses to dispute is 'disputed.'"

puts him in the same class as Dilbert's pointed-hair boss. [Great plugs!]

This also clashes with Brett's simpletonian originalism, suggesting he may be a doubting Thomas. As George W. claimed to be "The Decider," Brett outs himself as "The Disputer."

# posted by

Shag from Brookline : 7:07 AM

BD: "A democratic body voluntarily ceding power to tyrants or dictators is the classical cause of death for a democracy or republic."

This is an inapt analogy. Dictators in Rome were given unchecked power to deal with an emergency.

And each of Congress' major delegations of power to the bureaucracy were also justified by "emergencies." Most recently, see the "health care crisis" and the "financial crisis" Fear is the road on which tyrants come to power.

BD: Even in this version the analogy is inapt as the 'power' of the bureaucracy in the US can be checked any time Congress or the courts want to do it (in fact, as we've discussed, the House ALONE could check it at any time by merely withholding funds).

The analogy is imperfect because historically tyrants created bureaucracies to run their empires and war machines. See China and Byzantium to the sources of progressivism - Bismarckian Germany and Napoleonic France. Republican democracy giving way directly to bureaucratic tyranny is a modern evolution.

For the reasons I discussed above, Congress, the President and the Judiciary are exceedingly unlikely to curb the power of the bureaucracy. The idea of the House zeroing out funding for the bureaucracy has some definite merit, but the Republican political class appears to be unwilling to do so.

The United States is not alone in this regard. Historically, a society had to collapse or fall to conquest before a bureaucracy was overthrown.

In any case, the theoretical ability to democratically check or remove a bureaucracy in the future does not make current bureaucratic decrees democratic. So long as an unelected bureaucracy maintains the power to legislate, enforce and adjudicate by decree, you have a tyranny.

# posted by

Bart DePalma : 9:37 AM

IOW, what matters is not the trivial, "being in dispute", but the strength of the case of those disputing it.

Mr. W. politely used that to suggest the case on the other side was weak, but not totally unreasonable.

What I object to are those who, (Because it's helpful to them that all language be regarded as unclear.) attribute importance to meaning "being in dispute" quite apart from any evaluation of the arguments.

You repeatedly, however, say things like "somebody who finds it inconvenient" when the actual case is stronger and the side making the case doesn't just blandly says that, but does evaluate.

Also, I object to citation of text -- often w/o more -- as obviously stating something, when not only is there a reasonable debate, but in fact, there is a very good case that the text means something else.

# posted by

Joe : 9:54 AM

To remedy our SALADISTA's (FKA our yodeler) concerns:

"So long as an unelected bureaucracy maintains the power to legislate, enforce and adjudicate by decree, you have a tyranny.{

would he take America back to tyranny-tsorus Gilded Age days when there were no bureaucracies to thwart the .01%ers' controls over the Executive, Legislative and Judicial branches? What might America - and the rest of the world - look like? If Congress lacked the power to delegate, America would be back in our SALADISTA's good old days and who knows whether he would have come into existence. Perhaps our SALADISTA should do a personal cost/benefit study to evaluate the effect of unelected bureaucracies on his achievements.

# posted by

Shag from Brookline : 9:56 AM

Shag:

During our Republic's first century and a half when the bureaucracy was small and largely restricted to executive enforcement and nor legislation or adjudication, the United States went from being a colonial backwater to the second most powerful country after the British Empire, creating a comparative cornucopia of goods and services.

The subsequent era of increasing bureaucratic rule had two depressions and half the growth.

# posted by

Bart DePalma : 10:10 AM

Blankshot makes an excellent case for reinstating slavery...

# posted by

Anonymous : 10:13 AM

Our SALADISTA (FKA our yodeler) looks back to the Gilded Age as:

" ... creating a comparative cornucopia of goods and services."

but for the .01%ers. Our SALADISTA might claim that "trickle-down" economics benefited the 99+%ers, similar to Reagan's days in the 1980s. But in both instances, 'trickle-down" merely meant "piss on you" to the masses, more of a "con-u-copia" than a cornucopia. With his self-proclaimed expertise in economics (his college minor), perhaps he can come up with some stats on how the masses enjoyed the fruits of his alleged cornucopia in those good old days.

# posted by

Shag from Brookline : 11:39 AM

"And each of Congress' major delegations of power to the bureaucracy were also justified by "emergencies."

This is beside the point, which was that Congress remains in control the entire time and the people remain in control of Congress. That's what glaringly separates today's bureaucracies and yesterday's Roman dictator, and it's key.

"Congress, the President and the Judiciary are exceedingly unlikely to curb the power of the bureaucracy. The idea of the House zeroing out funding for the bureaucracy has some definite merit, but the Republican political class appears to be unwilling to do so."

You're really showing the weakness of your position now. As I said from the outset your complaint is more "the people and their representatives won't do what I'd like" rather than that they've been usurped. You acknowledge they remain in total control, they just are not doing what you would with that control.

That ain't tyranny brother.

"So long as an unelected bureaucracy maintains the power to legislate, enforce and adjudicate by decree, you have a tyranny."

Again, absurd. You concede yourself the people and their representatives retain total power to end these programs today if they would like. That they don't is not tyranny.

# posted by

Mr. Whiskas : 11:53 AM

I don't know that Congress IS in control anymore. You'll notice that the one data grab we know about, Verizon metadata, is kind of fraught, because Congress happens to use Verizon internally, which means the NSA grabbed every Congressman's metadata.

Maybe the reason you see little outrage over this in Congress is that so many of them could be ruined by the NSA, and know it?

# posted by

Brett : 3:18 PM

Mr. W:

Last observation. The dictators and other equivalent tyrants appointed by the Roman Senate were also supposed to be subject to removal by the Senate. This did not prevent dictators from ruling by decree and later evolving into the permanent office of Emperor.

# posted by

Bart DePalma : 3:51 PM

The Roman position of dictator has become the archetype of tyranny because of 1. the broad powers concentrated in one person; 2. the few checks on their power and accountability (a dictator's actions were actually treated legally as if he had never done them, no liability) and 3. the instances in which they went beyond their mandates and declared themselves dictator's for life above the Senate which authorized them.

These do not apply to our bureaucracy. Congress maintains the power to at any time direct, defund or abolish them, and the people regularly can replace Congresses that fail to do so in keeping with the people's wishes. Our agencies are not concentrated into the hands of one person. Our Congress has and continues to direct it regularly.

# posted by

Mr. Whiskas : 8:27 PM

Mr. W: These do not apply to our bureaucracy.

Are you kidding?

1. the broad powers to legislate, enforce and adjudicate concentrated in one agency (Ruling by decree is no less tyrannical when the decision is made by a faceless committee. Indeed, it is even more unsettling when you cannot put a face to the abuse);

2. the few checks on their power and accountability;

3. their power extends over multiple lifetimes with only a theoretical possibility of ending before the fall of American civilization.

# posted by

Bart DePalma : 8:59 PM

Mr. W,

You have to understand that it's only democracy when Republicans win. It's tyranny when Democrats win.

# posted by

Anonymous : 9:08 AM

1. "the broad powers to legislate, enforce and adjudicate concentrated in one agency" All subject to judicial review in the particular case and Congressional oversight and correction in the general

2. "the few checks on their power and accountability" same response as one, as well as regular Presidential elections

3. " only a theoretical possibility of ending"

Again, here is the crux: unlike a true dictator bureaucracies are subject to many structural controls (independent courts are open to review them; regularly elected Congress has the power of oversight, funding, agenda setting and correction; the head Executive regularly faces election). Bureaucracies have their power because the people via their regularly elected officials have chosen to conduct many government services through them. You don't like this, but the American people are in general fine with it and yes, are unlikely to come around to your view anytime soon.

# posted by

Mr. Whiskas : 9:44 AM

Mr. W:

Our fully formed Caesar just announced that he is again bypassing Congress and will use the bureaucracy to rule by decree on environmental matters.

Even more indictments from our Declaration of Independence would appear to pertinent today:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

For imposing Taxes on us without our Consent:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

Our Republic was pretty nice while we kept it.

But none dare call the new regime tyranny.

# posted by

Bart DePalma : 3:37 PM

This comment has been removed by the author.

# posted by

Anonymous : 4:32 PM

See, when Democrats win elections it is tyranny. Thanks for confirming that for us, Blankshot!

# posted by

Anonymous : 4:34 PM

BB:

Ah, but the Democrats did not win the election for Congress.

The Democrats lost the House and they held onto the Senate by running hard away from the policies Obama seeks to impose now by decree.

# posted by

Bart DePalma : 5:32 PM

They won the White House and the Senate. They also got more votes for Reps. Not sure what your definition of winning is, but that sure as fuck looks like winning to me.

# posted by

Anonymous : 12:39 AM

Bart, you're spin on the election is almost up there with your spin on your claim of tyranny.

The GOP lost a Presidential contest it was certain it was going to win (perhaps you might remember that ;)) and a Senate it was certain it was going to win earlier in the year. It was a massive fumble.

On the other matter Obama announced he would seek to curb carbon production via the EPA. That agency is authorized by Congress and subject at any time to correction or defunding by the same. Additionally, if its directives overshoot its Congressionally granted authority and guidelines the Courts will slap them down (as they've done several times this year alone).

To equate that with Tyranny, with dissolving and suspending legislatures, taxing without consent and taking away charters is laughable.

# posted by

Mr. Whiskas : 7:06 AM

Mr. W:

The very definition of tyranny is an executive which rules by decree by setting, enforcing and adjudicating the law.

Progressives used to hide behind the fig leaf argument that the bureaucracy was apolitical and driven by science. Our Caesar does not even pretend this is the case:

In my State of the Union address, I urged Congress to come up with a bipartisan, market-based solution to climate change, like the one that Republican and Democratic senators worked on together a few years ago. And I still want to see that happen. I'm willing to work with anyone to make that happen. But this is a challenge that does not pause for partisan gridlock. It demands our attention now...

So today, for the sake of our children, and the health and safety of all Americans, I’m directing the Environmental Protection Agency to put an end to the limitless dumping of carbon pollution from our power plants, and complete new pollution standards for both new and existing power plants.<

Please explain to me the effective difference between dissolving Congress and ruling by decree and ignoring Congress and ruling by decree?

Please explain to me why Congress declining to stop the President from ruling by decree makes ruling by decree any less tyrannical?

Please explain to me why a court which signed off on the unconstitutional bureaucracy and invented the EPA's power to rule by decree on GHGs absent congressional authorization is now going to reverse EPA's decrees?

Please explain to me why you are OK with rule by decree?

# posted by

Bart DePalma : 10:22 AM

Dumbfuck, it's not "rule by decree" because the people doing the "decreeing" were elected by the People. That seems pretty fucking obvious.

Elections have consequences.

# posted by

Anonymous : 10:34 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:50 AM

BB:

The elected President has no power to legislate and, if you believe that the President is not directing EPA as he told you yesterday, the voters did not elect the bureaucracy issuing these decrees.

Elections most certainly do have consequences. As Venezuela after electing Chavez and Germany after electing Hitler.

Please explain to me why you are OK with rule by decree?

# posted by

Bart DePalma : 10:51 AM

The EPA has primary responsibility for enforcing many of the environmental statutes and regulations of the United States. As such, the Agency is granted explicit enforcement authority in environmental statutes. Sometimes, however, that authority needs to be further refined or explained. In such cases, EPA may develop and implement policies and write guidance. In addition, EPA sometimes issues policy or guidance to encourage compliance with environmental requirements.

If the Republicans in Congress wish to further refine the policies of the EPA they can pass laws to do so. Or they can bring the EPA to Court. Either way, it's not "rule by decree", you stupid fuck.

# posted by

Anonymous : 11:02 AM

cloture

# posted by

Joe : 12:42 PM

"supremacy clause," from the point of view of originalism. Add to the latter the claimed horizontal supremacy of the Court (at the federal level) over the Executive and Legislative branches.
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Cicy : 4:11 AM

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# posted by

Unknown : 4:03 PM