Balkinization: The perverse incentives of "divided government"

Comments:

Things have gotten worse. In the December issue of The Federal Lawyer is a book review of Acts of Congress, by Robert Kaiser. The review states: "Kaiser believes the primary explanation for the growth of partisanship and gridlock is that, over the past 30 years, there has been a basic change in the perception that members of Congress and their parties have of their roles. Thirty years ago, more members cared about developing public policy and governing. They were willing to work on a bipartisan basis to solve complex problems. Since then, the emphasis has shifted, with members now knowing and caring less about policy issues than about politics. The primary focus is on developing debating points and procedural tactics that discredit the opposition party."

# posted by

Henry : 12:28 AM

I think a major difference is that it was formerly understood that you didn't do huge things with 50% plus 1 party line majorities. That it might be ok to do small, reversible things that way, but to permanently overturn some aspect of society by a tiny, partisan minority just wasn't proper. It might be possible to do it, but not responsible.

Today you see major legislation pass by party line votes, utterly opposed by the minority party, because the majority party thinks it proper to use even a small, transient majority to do things the opposing party is adamantly opposed to, and which will irreversibly change society.

Seriously, why should a minority party work in good faith with the majority to accomplish something they're opposed to? If, in 2017, President Scott Walker and 51 Republicans in the Senate decide to take Right to Work nation-wide, would Democrats be somehow obligated to work with them in achieving it?

Your thesis seems to rest on the assumption that there are big things out there which both parties think are a good idea to do. Perhaps this isn't the case, perhaps all the big things we can all agree on have been done already, and the only big things left are those we are fundamentally divided on the desirability of.

# posted by

Brett : 8:20 AM

Sandy's A-J column should be read as it fills in blanks of this short post. As usual, I am in agreement with much of what Sandy says. Henry's comment is well taken. As to Brett, he demonstrates once again his short-sighted simpletonian approach to governance, especially with this:

" ... perhaps all the big things we can all agree on have been done already, and the only big things left are those we are fundamentally divided on the desirability of."

Brett seems to like the pre-Civil War Amendments Constitution.

Sandy: In the first paragraph of your post following "refusal to 'compromise' with" I think you meant "Republicans" and not "Democrats."

# posted by

Shag from Brookline : 8:34 AM

Another change is that the permanent bureaucracy was formerly understood to be a neutral party. In the wake of the IRS targeting of conservative groups, (Which, despite the dearth of coverage, was never discontinued.) and other developments, it is understood among conservatives that to create any new bureaucracy, or to expand an existing one, is to provide one party, the Democratic party, with more government funded operatives.

What you're seeing are the consequences of a number of norms limiting partisan exploration of majority status falling by the wayside. The party out of party MUST oppose anything the party in power does, because anything the party in power does will be aimed in some way at effecting the political balance, not simply implementing policy.

Like the regulation mandating that all 50 states bifurcate their databases of ACA enrollees, to create two databases, one containing data subject to the Privacy act, the other contact information. This has no purpose in implementing the ACA, it's only purpose is to do political data-mining at public expense.

Why shouldn't Republicans oppose such things?

# posted by

Brett : 10:20 AM

Brett's argument is, of course, internally inconsistent. OTOH, he says that no party should "do huge things" (whatever those are) by a party line majority. OTOH, he says that the Republicans fundamentally oppose what the Dems want, so they have no reason to cooperate. This theory of government leads to a situation in which (a) changes can't be made; and (b) problems can't be fixed.

His argument is also inconsistent with the common R lie that Obama and the Dems failed to work with them to make compromises to the ACA. It's refreshing that Brett doesn't go there.

In the more recent past -- that is, post FDR -- both parties were much more ideologically diverse. There were liberal Rs in the North and conservative Dems in the South. Both parties are much more ideologically homogeneous these days, the Rs more so. That means that the tactics available in the "good old days" no longer are. The situation now is much more akin to the situation surrounding the Civil War, in which the parties passed what they could when they had internal majorities.

# posted by

Mark Field : 10:21 AM

" the common R lie that Obama and the Dems failed to work with them to make compromises to the ACA"

Democrat: "Hey, eat this shit sandwich!"

Republican: "I'm not eating a shit sandwich."

Democrat: "Well, what sort of sandwich would you eat?"

Republican: "A Ruben would be nice."

Democrat: "Ok, eat this shit sandwich with corned beef and sauerkraut."

Republican: "No."

Democrat: "Republicans won't work together with us!"

# posted by

Brett : 10:31 AM

Never mind that the "shit sandwich" part was originally a Republican proposal, signed into law by Mitt Romney.

The Democrats should have forced through single-payer and be done with it.

# posted by

Henry : 10:40 AM

It's unclear to me what Brett's trying to show with his dialogue. His dialogue demonstrates that the Rs won't cooperate with a policy they think is misguided. Fine. Then why lie about it and say the Dems "won't work with them"?

# posted by

Mark Field : 11:14 AM

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# posted by

Bart DePalma : 11:23 AM

Sandy:

Divided government does not increase partisanship.

When was the last time the opposition in Congress denied a president the signature program he campaigned on when it enjoyed majority voter support?

A Democrat Congress declined to enact Hillarycare because the voters opposed it, not because of a memo from Bill Kristol.

Obamacare is a different creature entirely - the first welfare state program rammed through entirely by the majority party in Congress against voter opposition.

As for presidential reelections, both Clinton and Bush 43 won reelection because they presided over periods of economic expansion - not because of welfare reform or NCLB. It is nearly impossible to evict a sitting president during good economic times with low unemployment.

# posted by

Bart DePalma : 11:25 AM

Mark,

Brett equates the Democrats' refusal to take the "shit sandwich" (i.e., ensuring that people will not die from lack of health insurance) off the table to not working with Republicans. From his point of view, that is logical.

# posted by

Henry : 11:31 AM

Brett said...Another change is that the permanent bureaucracy was formerly understood to be a neutral party. In the wake of the IRS targeting of conservative groups, (Which, despite the dearth of coverage, was never discontinued.) and other developments, it is understood among conservatives that to create any new bureaucracy, or to expand an existing one, is to provide one party, the Democratic party, with more government funded operatives.

The situation is far worse than that.

The regulatory bureaucracy was never a neutral party. Progressives expressly created the regulatory bureaucracy to govern in the stead of Congress to impose progressive policy by decree that could never pass democratically.

Some time ago, we reached a tipping point when the bureaucracy started enacting more law than Congress.

The Obama administration presented a second tipping point by having the bureaucracy rewrite or simply stop enforcing laws of Congress.

Our Republic is very much in twilight.

# posted by

Bart DePalma : 11:44 AM

Our SALADISTA informs us:

"As for presidential reelections, both Clinton and Bush 43 won reelection because they presided over periods of economic expansion - not because of welfare reform or NCLB. It is nearly impossible to evict a sitting president during good economic times with low unemployment."

But our SALADISTA's lumping together of Clinton's and Bush-43's reelections with good economic times leaves out the many differences in 1996 and 2004 on economic conditions. The fact that in 2004 American was engaged in two (2) wars was quite significant in Bush-43's reelection. So our SALADISTA once again flunks as an economist and as a historian.

# posted by

Shag from Brookline : 11:50 AM

States only function when citizens see themselves as vested in that state. SL's fixation on rules is becoming more and more absurd.

Republican members of Congress now see themselves as more loyal to their party than to the country as a whole. No rule change can fix that. The ethos of service has faded. But of course that's happened across the board. Liberal yuppies are Eisenhower republicans with black friends but with an added layer of narcissism. Another battle in the unending fight for the soul of the American conservatism, because the US is a conservative country. But conservatism is fading into barbarian anarchism. Libertarians now say freedom and democracy are opposed. American culture has never resolved that conflict. Most of the authors, and readers, of this blog are just as confused.

There is a bit of a cultural shift towards a social as opposed to individualist understanding of cultural and political life, but that's moving in from the margins. Professional intellectuals and academics fit J Balkins description of the Supremes, "like the husband in a French farce, always the last to know"
Levinson should read Montesquieu on society.

# posted by

D. Ghirlandaio : 11:57 AM

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# posted by

Joe : 12:26 PM

The Nixon/Reagan "southern strategy" and the Gingrich playbook of demonizing your political opponents transformed the republican party. It's given up on trying to win the support of minorities, most women and most city-dwellers. Its base is the ultra-rich and white men who believe that compromise with political opponents = surrender.

# posted by

gp : 12:47 PM

Shag:

The fact that Bush was a war president combined with the fact that Kerry was calling for effective surrender likely increased Bush's eventual margin of victory, but it was not the basis for it. More Americans approved of the Iraq War before the election than voted for Bush.

# posted by

Bart DePalma : 1:35 PM

Here's a link to some history about wartime Presidents seeking reelection that our SALADISTA may not be aware of:

http://usatoday30.usatoday.com/news/opinion/columnist/wickham/2004-10-11-wickham_x.htm

The article was written in October of 2004. So our SALADISTA flunks history once again. And with this:

" ... the fact that Kerry was calling for effective surrender ... "

our SALADISTA demonstrates that he does not know a fact from his elbow or a related anatomical body part.

Let's see if our SALADISTA retests his economics.

# posted by

Shag from Brookline : 1:53 PM

Henry, I get that, but it's inconsistent with the idea that Dems should "work with" the Rs. His other point about Rs simply opposing the ACA root and branch makes sense, but in that case there's no reason for the Dems to "work with" them.

# posted by

Mark Field : 3:26 PM

Bart & all, hope you had a Happy Thanksgiving!

"Progressives expressly created the regulatory bureaucracy to govern in the stead of Congress to impose progressive policy by decree that could never pass democratically. "

But the elected branches could, first thing tomorrow, reverse essentially any of these bureaucratic degrees they wish. That they do not suggest that democratic majorities are not clamoring for such, and I think that belies claims of bureaucratic tyranny.

# posted by

Mista Whiskas : 8:40 PM

"The Nixon/Reagan "southern strategy" and the Gingrich playbook of demonizing your political opponents transformed the republican party."

The Southern Strategy replaced the Dixiecrats, and Gingrich complained that Clinton had ripped off Republicans for most of his policies (forcing them to move even more to the right) Who "ended welfare as we know it"? The Reagan revolution began with Carter (look at the history of policy).
I spent election night 1992 at a kegger with Pierre Trudeau. I asked him about Clinton. He shrugged and called him "a Republican".
Please cut the crap.

# posted by

D. Ghirlandaio : 11:46 PM

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# posted by

Bart DePalma : 10:01 AM

Mr. W:

1) Law imposed by decree outside of the democratic system is tyranny.

2) Your contention that Congress could reverse such laws at best suggests that we have a potential democratic check on bureaucratic tyranny, which does not render it any less tyrannical.

3) This democratic check is itself an illusion because the production of regulation is so massive that a representative of congress could not hope to keep up with it. If a particularly onerous regulation was brought to the attention of Congress, a repeal bill would have to pass both the House and the Senate and survive a presidential veto. Progressive or socialist control of any one of these bodies is likely to stop the repeal. For example, the GOP House has passed multiple regulatory reform bills, none of which were even brought up for a vote in the Democrat Senate.

The net result is effectively unchecked tyranny unaccountable to the people.

# posted by

Bart DePalma : 10:02 AM

1) Law imposed by decree outside of the democratic system is tyranny.

# posted by Blogger Bart DePalma : 10:02 AM

Obama was elected, you imbecile.

# posted by

Anonymous : 10:36 AM

Our SALADISTA's moniker may soon be changed to:

"TYRANNYSAURUS REX"

taking him well back before his vaunted "Gilded Age."

Much earlier in this thread our TYRANNYSAURUS REX prognosticated:

"Our Republic is very much in twilight."

At least he can enjoy CO's recreational ganja in HIS twilight years at his mountaintop community, still blowing smoke.

# posted by

Shag from Brookline : 10:56 AM

Maybe I'm wrong But wasn't Bart a fan of Addington's theory of the unitary executive?

# posted by

D. Ghirlandaio : 11:08 AM

BB:

Article II does not grant President Obama with the power to decree law and expressly tasks him with enforcing Congress' laws, rather than rewriting or ignoring them.

DG:

Article II expressly vests all executive power with the President. This is not a theory.

# posted by

Bart DePalma : 3:24 PM

Blankshot, that's why we have 3 branches of the government, you dimwit. Not happy with the regulations? Go to court or have Congress change the law.

# posted by

Anonymous : 4:47 PM

"at best suggests that we have a potential democratic check on bureaucratic tyranny"

At best? You concede the point here! You acknowledge, as you must, that at any time our democratically elected branches could change or eliminate any of these regulations, you just go on about how, given our system of checks and balances, that is not easy. This is 'tyranny?' You sound like the Democrats complaining that the structure of the Senate giving less populous states the same representation as others or the filibuster the amounts to 'tyranny of the minority.'

# posted by

Mista Whiskas : 7:50 AM

Mr. W:

I never claimed it was not theoretically possible for Congress to repeal a regulation, just that the size of the regulatory state and our checks and balances makes it highly improbable.

To claim that Congress poses an effective check on regulatory tyranny is like claiming the 3-9 Jacksonville Jaguars are a super bowl caliber team because it is still mathematically possible for them to make the playoffs.

# posted by

Bart DePalma : 9:54 AM

Bart

Since you your argument is that there is a tyranny of the bureaucracy over the democratic branches a better analogy would be that you are complaining that the Jaguars are not allowed to play in the Super Bowl because they have a record that makes them ineligible.

If they had a better record they would be eligible, and if the democratic branches wanted to overrule the bureaucracy on essentially any matter they could at any time.

# posted by

Mista Whiskas : 10:37 AM

Apparently our TYRANNYSAURUS REX is ready to concede that America cannot be returned to his vaunted "Gilded Age" days as he reposes in HIS twilight years, once again fumbling the ball with an inapt analogy.

# posted by

Shag from Brookline : 10:42 AM

"Apparently our TYRANNYSAURUS REX is ready to concede that America cannot be returned to his vaunted "Gilded Age" days"

Shaq, I think it is even worse for Bart. It is not that America cannot be returned to the Gilded Age, it could be done tomorrow if our democratic branches wanted to, and he concedes as much. It is that America (or at least its democratic branches which are still chosen in free and regular elections) chooses not to. That they choose not to is supposed to be evidence of tyranny in his argument.

# posted by

Mista Whiskas : 11:14 AM

In Blankshotworld it's "tyranny" when his side loses elections.

# posted by

Anonymous : 11:17 AM

BB

I actually understand some of Bart's complaint, that while it is entirely possible for the democratic branches to reverse any or all bureaucratic regulations, it is difficult in that in our system of checks and balances any one branch (or in the case of Congress any 1/2, or in the case of filibusters even less) can block such attempts.

But this leads Bart to a very odd position: that the American constitutional system of government set up by the Founders has produced an undemocratic (tyrannical in his words) result!

# posted by

Mista Whiskas : 8:09 PM

# posted by

Brett : 5:42 AM

Our dyslexic duo Bert and Brat play mutual sock puppets so I accept that the former speaks for the latter, and vice versa (if that's how you like your vice). But the Administrative State is here to stay. The Administrative State came about via bills enacted by Congress, approved by the President (or whose veto was overridden by Congress), and in some, perhaps many, instances tested by the Court. Thus, all three branches have been involved in the creation of the Administrative State, in conformance with the Constitution.

Prof. Adrian Vermeule's "The Administrative State: Law, Democracy, and Knowledge" is a chapter in the forthcoming Oxford Handbook of the United States Constitution. The chapter is available via the Internet; my download does not include the URL I got to it several months ago via Larry Solum's Legal Theory Blog.

The chapter is a concise 18 pages of text, followed by 7 pages of extensive references. The chapter provides an excellent background on the Administrative State, how it functions and its issues.

The Administrative State may need reforms but its infrastructure is necessary for a nation of over 330 million. Prof. Vermeule presents the issues involved with the Administrative State without taking sides.

By the Bybee [expletives deleted], was the Administrative State started by Republican Teddy R? I may have to check out Ms. Goodwin's new book.

# posted by

Shag from Brookline : 8:35 AM

I'm sure I'm speaking for Bart, when I say that the regulatory state is NOT the constitutional system set up by the founders, who set up a system where legislation has to be enacted by the legislature, not the executive branch.
# posted by Blogger Brett : 5:42 AM

If the Founders did not want the current regulatory state they should have specifically prohibited it in the Constitution.

# posted by

Anonymous : 9:47 AM

Article 1, Section 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."

What do you want, "PS, by "vested in a Congress", we mean NOT vested in the Executive"? They said who had the power, they don't have to say who doesn't, that's everybody else.

# posted by

Brett : 10:16 AM

Brett, the fact that we need bureaucrats to write regulations does not change the fact that the laws are passed by Congress.

# posted by

Anonymous : 10:31 AM

Brett: "Article 1, Section 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."

What do you want, "PS, by "vested in a Congress", we mean NOT vested in the Executive"? They said who had the power, they don't have to say who doesn't, that's everybody else."

Do you understand (a) *legislative* power and (b) executive branch personnel doing things as a *result* of laws passed by the legislative branch?

# posted by

Barry DeCicco : 12:13 PM

Do you understand that, at some point, delegating the details IS delegating the legislating? For instance, there's no contraceptive mandate in the ACA. None. And yet, the mandate, created by regulators, not passed by Congress, has the force of law.

The mandate, which if it had been written into the ACA, would have ensured it wouldn't pass. And yet, the Senate or President alone can prevent Congress from repealing what they would never have enacted.

# posted by

Brett : 12:27 PM

And yet, the Senate or President alone can prevent Congress from repealing what they would never have enacted.
# posted by Blogger Brett : 12:27 PM

So we have a "tyranny" of elected representatives?

# posted by

Anonymous : 12:33 PM

Mista Whiskas said...I actually understand some of Bart's complaint, that while it is entirely possible for the democratic branches to reverse any or all bureaucratic regulations, it is difficult in that in our system of checks and balances any one branch (or in the case of Congress any 1/2, or in the case of filibusters even less) can block such attempts.

But this leads Bart to a very odd position: that the American constitutional system of government set up by the Founders has produced an undemocratic (tyrannical in his words) result!

How is this an odd position?

Our Republic is designed to limit government tyranny in three ways - (1) democratically electing the lawmakers, (2) placing checks and balances on the lawmakers to require supermajority support to enact laws directing our lives, and (3) placing areas of liberty completely out of government reach through a Bill of Rights.

Checks and balances in this system advances the cause of liberty.

Under our progressive and now socialist system, a regulatory bureaucracy rules by decree (eliminating the democratic limit and establishing the tyranny), the checks and balances meant to limit government are now turned on their head and serve to protect the tyranny from democratic check, and the progressive courts have largely stripped Americans running businesses of their constitutional contract and property rights against the bureaucratic onslaught.

# posted by

Bart DePalma : 2:54 PM

bb: Brett, the fact that we need bureaucrats to write regulations does not change the fact that the laws are passed by Congress.

Under the progressive system, Congress simply issues broad goals (for example, there shall be clean air) and then the bureaucracy enacts the actual laws Americans have to follow.

This was done by design. Voters will not oppose broad fuzzy objectives like clean air, but very likely would oppose and fire the representatives who support oppressive regulations like outlawing the incandescent light bulb or your individual or employer health insurance plan.

# posted by

Bart DePalma : 2:59 PM

Under the progressive system, Congress simply issues broad goals (for example, there shall be clean air) and then the bureaucracy enacts the actual laws Americans have to follow.

This was done by design. Voters will not oppose broad fuzzy objectives like clean air, but very likely would oppose and fire the representatives who support oppressive regulations like outlawing the incandescent light bulb or your individual or employer health insurance plan.
# posted by Blogger Bart DePalma : 2:59 PM

Still not seeing how this could possibly be unconstitutional or a tyranny of any sort, other than using the standards of a complete lunatic (aka you). If Congress wants more detailed standards when passing a law, there is absolutely nothing stopping them from doing so.

# posted by

Anonymous : 3:17 PM

(2) placing checks and balances on the lawmakers to require supermajority support to enact laws directing our lives
# posted by Blogger Bart DePalma : 2:54 PM

How, exactly, does the Constitution require super majority support to enact laws?

# posted by

Anonymous : 3:20 PM

BD: (2) placing checks and balances on the lawmakers to require supermajority support to enact laws directing our lives

BB: How, exactly, does the Constitution require super majority support to enact laws?

The Constitution requires bills to be approved by a proportionally elected House, a geographically elected Senate and a nationally elected president.

In order to achieve consensus between all three implementing the will of their groups of voters, you would need an effective supermajority of popular support.

# posted by

Bart DePalma : 6:35 PM

"the checks and balances meant to limit government are now turned on their head and serve to protect the tyranny from democratic check"

Right. As I said, in your view the thing that enables this tyranny is the American constitutional system of checks and balances.

Next thing we know you will be calling for elimination of the filibuster (lest a minority of half of one branch block any attempted rollback of our regulatory state)!

# posted by

Mista Whiskas : 7:20 PM

Mr. W:

The unconstitutional bureaucracy is the tyranny. The perversion of the checks and balances to protect that tyranny did not create or facilitate that tyranny.

BTW, I have repeatedly posted that I would eliminate the filibuster. The Constitution's own checks and balances are ample for their purpose.

# posted by

Bart DePalma : 7:59 PM

The Constitution requires bills to be approved by a proportionally elected House, a geographically elected Senate and a nationally elected president.

In order to achieve consensus between all three implementing the will of their groups of voters, you would need an effective supermajority of popular support.
# posted by Blogger Bart DePalma : 6:35 PM

That isn't a supermajority, sparky. In fact, you can control both houses of Congress and the presidency with the support of the minority of the voters. Your claim that the Constitution requires a supermajority is complete nonsense.

# posted by

Anonymous : 9:43 PM

A link for the administrative state article Shag references:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2329818

# posted by

Joe : 12:06 AM

"In order to achieve consensus between all three implementing the will of their groups of voters, you would need an effective supermajority of popular support."

Actually, you'd have that with a bare majority, if that bare majority were evenly distributed across the nation. If 51% of people everywhere support something, then 51% of people in every legislative district will support it, and it will have overwhelming support in the legislature if the legislature is actually representative. (A large quibble, of course.)

To the extent that support for a position is NOT evenly distributed, it gets harder to enact it. You may gain or lose votes in the Senate based on uneven distribution, but you will almost always lose them in the House if support is uneven.

The Constitution was written for a heterogeneous federation of states, and was quite cleverly designed to make it harder to get legislative support for issues which are regional in their support, even if that region is heavily populated. But that same system offers no obstacle at all to the enactment of measures whose support is uniform across the nation.

As is only proper in a federation, the Constitution was set up so one part of the country could not rule the other over it's objections.

But, as Bart has correctly noted, the very obstacles to enacting laws get stood on their head when the executive can effectively enact laws bypassing all those obstacles, and the legislature must then clear all those hurdles to repeal them.

Really, the problem is the breakdown of norms in governance. All these abuses were always possible, they didn't happen before because their were norms against committing them. Those norms are now gone, and we are faced with a government run by Holmes "bad man", who cares only about what he can get away with.

# posted by

Brett : 6:14 AM

Brett's:

"The Constitution was written for a heterogeneous federation of states, and was quite cleverly designed to make it harder to get legislative support for issues which are regional in their support, even if that region is heavily populated. But that same system offers no obstacle at all to the enactment of measures whose support is uniform across the nation."

suggests that he is in agreement with CJ Taney and the decision in Dred Scott. How clever those founding slaveholders in the slave states. Why it took a war to undo this cleverness. Our TYRANNYSAURUS REX looks to the Gilded Age as American's greatnessdays while Brett takes us back to the clever founding slaveholders. Perhaps Brett thinks it's time for a war to restore the Constitution of 1789 in order to control the changing demographics and thereby converting angry old white men into happy warriors. What a MAROON!

# posted by

Shag from Brookline : 6:52 AM

Congress is finally discussing both bureaucratic tyranny imposing most of our law by decree and the complementary problem of Caesarism - the executive rewriting or ignoring the remaining laws of Congress.

http://www.realclearpolitics.com/video/2013/12/04/turley_obamas_become_the_very_danger_the_constitution_was_designed_to_avoid.html

Congress needs to go beyond talk before this precedent takes root.

# posted by

Bart DePalma : 8:50 AM

BD: "In order to achieve consensus between all three implementing the will of their groups of voters, you would need an effective supermajority of popular support."

Brett: Actually, you'd have that with a bare majority, if that bare majority were evenly distributed across the nation. If 51% of people everywhere support something, then 51% of people in every legislative district will support it, and it will have overwhelming support in the legislature if the legislature is actually representative. (A large quibble, of course.)

No simple majority is evenly spread across the nation. Urban voters reelected Obama, everywhere else elected the GOP House and a mixture of small and large states make up the Democrat Senate.

# posted by

Bart DePalma : 8:57 AM

No simple majority is evenly spread across the nation. Urban voters reelected Obama, everywhere else elected the GOP House and a mixture of small and large states make up the Democrat Senate.

# posted by Blogger Bart DePalma : 8:57 AM

Dumbfuck, Bush won in 2000 with the minority of voters supporting him. The GOP currently controls the House with a minority of voter support. It's even easier to control the Senate with a minority of voter support. Your claim that the Constitution REQUIRES supermajority support for passing laws is moronic. I don't even have to go back more than a few years to find examples that demonstrate that you're an imbecile.

# posted by

Anonymous : 9:29 AM

In his Bush/Cheney glory days our TYRANNYSAURUS REX harped on the "progressive" New Deal. Upon the election of Pres. Obama, our own "T/R" harped on "socialist" as apparently "progressive" proved to be no longer derogatory. So our own "T/R" shifted to "tyranny" repetitively, hoping it would stick as pejorative of Pres. Obama. Rather, it seem to stick in our own "T/R's" new moniker. And, according to our own "T/R" our Republic is in "twilight." But everyday comes the dawn, so it hasn't dawned on our own "T/R" that he may be in HIS twilight. Yes, our own "T/R" and Brett make up a quite simple minority.

# posted by

Shag from Brookline : 10:32 AM

Bart

Good on you for consistently advocating getting rid of the filibuster.

Brett

I like most of your well written post. I do think our system was, and is, designed to protect from regions being run roughshod over. My only point is to point out that it is this system that Bart seems to be complaining about (well, of course his initial complaint is about an unconstitutional delegation of power to our bureaucracy, but his claim of 'tyranny over the democratic branches' rests on this idea that our system makes it hard to adopt anything-including rollbacks of delegation).

# posted by

Mista Whiskas : 10:58 AM

Congress exploring the limits of presidential caesarism with law professors:

http://www.youtube.com/watch?v=bJdGkAmxOk8&feature=share&list=UUVvxvugtuNZSygB4z4aVfsg

# posted by

Bart DePalma : 12:22 PM

Apparently Blankshot has conceded that his claim about the Constitution REQUIRING supermajority support to pass laws was idiotic.

# posted by

Anonymous : 12:36 PM

As is only proper in a federation, the Constitution was set up so one part of the country could not rule the other over it's objections.

The Calhoun veto didn't pass. If three parts of the country out vote a fourth, they can 'rule' over them, objection or no.

the executive can effectively enact laws

administrative rule making, executive discretion et. al. is part of the system in place and builds off the laws already passed. That is a major limit.

Really, the problem is the breakdown of norms in governance.

These things are part of the norms. There is a greater range of opportunity as society grows and there is more regulations to administrate and limited resources for the executive (voted for by the people) to balance, including in executing laws that cannot be executed 100%.

All these abuses were always possible, they didn't happen before because their were norms against committing them.

Brett has this "golden age" which he never tends to cite (I tried repeatedly) which is like many a golden age, fictional.

Those norms are now gone

The norms are not gone. They are carried out in somewhat different ways.

and we are faced with a government run by Holmes "bad man", who cares only about what he can get away with.

As I noted in another place, and someone who knew a thing or two about actual "bad men" (that is, the Soviet Union) agreed with me, this over the top b.s. (see also, his reference to living in a dictatorship) is offensive to people who actually live under such a regime.

Obama does not only care what he can get away with. Bush didn't only care about that either. I find hard to take such hyperbole seriously.

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