Balkinization  

Saturday, March 26, 2016

Nation symposium

Sandy Levinson

The Nation's web site has a mini-symposium, with essays by Wendy Weiser of the Brennan  Center, Rob Ritchie, executive director of Fair Vote, and myself on the kinds of changes that self-styled "political revolutionaries" should support.  Needless to say, I offer another critique of Bernie Sanders as a very weak "political revolutionary" inasmuch as, unlike Texas  Gov. Greg Abbott, he is incapable of "connecting the dots" between his political vision and the stumbling blocks presented by our decidedly status-quo protecting 1787  Constitution.  The other two contributions make perfectly good suggestions about progressive changes that would certainly help, but, from my perspective, they are still vitiated by failing to recognize, for example, that even enhancing voter turnout, which is much to be wished, or getting rid of Citizens United, also to be wished, would do relatively little to assure that national elections were in fact as significant as state elections.  The latter tend, for better and for worse, depending on the state, to be swept by a single party in any given election cycle, which means that Republicans in Wisconsin or Michigan, or Democrats in Minnesota or California, can really pass programs, which can be evaluated by the voters in the next election, with sometimes dramatic results.  At the national level, however, the most likely result of this year's general election, unless Clinton swamps Trump and brings in a Democratic House as well as Senate, is continued gridlock, with no genuine likelihood of any significant domestic accomplishments.  And, as I've argued earlier, it would be even worse if Bernie managed to slip into the Oval Office, since there is no plausible argument that he would bring with him a "democratic socialist" House and Senate.  Even in a defensible electoral system, that would be a stretch; in our system, it is impossible.

The Tea Party folks, some of whom participate in the discussions below, are understandably frustrated because they thought their big win in 2014 would be reflected in the ability of the Republican majority actually to pass its programs.  That just isn't the case, so Senate is now reduced to refusing even to talk to a conservative-Democratic nominee for the Court as its major "accomplishment" of the 2016 session.  Democrats, of course, will be equally frustrated if, say, Clinton wins without flipping the Senate and the House.  If the Senate flips, at least she'll be able to make some appointments, once the Democrats, on the first day of the session, eliminate the filibuster for Supreme Court nominees as well as those nominated for "inferior courts."  But without the House, it really doesn't matter what ambitious plans she might have.

 

Comments:

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This comment has been removed by the author.
 

Sanders seems to believe that change has to come from the people pushing for it. The people being educated of the problems involving inequality, power of corporations, race and so forth. The people not settling with the powers that be. With respect, that is not "weak" in comparison to Greg Abbott putting our some confused nine point plan.

I do not disagree that structural changes would help his view of change -- dealing with partisan gerrymandering, a malapportioned Senate where inaction is apparently considered "their job" and locally things like school funding measures would help. But, BOTH grass roots action and structural change is required. Gay rights, health care etc. had "no chance" once upon a time too.

And, his message can influence state politics as well, which currently is controlled by Republicans. Consider how a strong candidate could have changed the narrow wins of Gov. Scott in Florida. http://www.tampabay.com/news/politics/stateroundup/how-rick-scott-won-re-election-as-florida-governor/2205342 A few states changing hands (and some already are split) with his message flowing downward could be rather significant.

If the system is "dysfunctional" it is in part because the people allow it to be. Sanders is trying to get people to care about that. Once the people are riled up, sure, some can point to how changing the Constitution itself might be necessary. At this point, however, we are simply not ready for your idea of some sort of constitutional convention which is to me some sort of parlor game more than something realistically likely to go well.

===

Anyway, as I noted last time this was brought up, it is not surprising a long-term senator is conservative as to constitutional change, especially when it affects his position as one of two senators in a low population state. There was an article in today's NYT on how he stuck with his message for all of his career. He started off at a time when a people's democracy message bred fruit & he stuck with it.

[combined to comments]
 

Sanders' heroes are people like Fidel Castro and Daniel Ortega. People who said the right things to gain power, and then showed themselves to be ruthless authoritarians with no concern at all for the rule of law.

So it's beyond me why you'd think he gives a bucket of warm spit for what the Constitution says. Why should he want to reform a constitution he means to ignore?
 

Sanders was a student organizer for the Congress of Racial Equality (CORE) and the Student Nonviolent Coordinating Committee. Given that, not sure FIDEL CASTRO was his immediate role model in the 1960s over someone like John Lewis or Martin Luther King Jr.

He later was a strong peace activist. Again, perhaps someone in the peace movement would be more accurately deemed a role model. He did oppose the totalitarian types the Reagan Administration supported in Latin America. I can understand how a conservative would disagree with him there. I am not familiar with Latin American politics but Ortega won the popular vote. But, like Castro in Cuba, it is not like either side was perfectly ideal.

Sanders then rose in local politics and then in Congress, where he advanced his goals by following the rules of the game. He showed lots of concern for the rule of law. One can oppose his ideological position, but for some that isn't enough. Libel is necessary.
 

He's SAID those were his heroes. He honeymooned in the USSR, during the Cold war. (And don't give me that "sister city" bit, he's the one who decided a city in the USSR would be their sister city.)

When somebody says that he admires Ortega, who gained power legally and then ruled as a tyrant, why assume that their efforts to gain power legally wouldn't be followed by the same? When somebody says he admired Fidel, who routinely had his political foes disappeared, why grant him the benefit of the doubt?

We don't extend that benefit if somebody says they admired a right-wing tyrant. I see no reason at all we should extend it to people who admired left-wing tyrants.

You see, all I'm asking here is for a single standard.
 

He honeymooned in the USSR in late 1980s, a time when it was undergoing major change toward democracy. The uninitiated might think "during the Cold War" means 1970 or something. Old timers know we should take what some people say with a bit of a grain of salt. Cultural exchange was and is also a major way the West used/uses to promote its brand world-wide. OTOH, the nativist might be upset.

It is "beyond me" why we should not look past him praising two people who fought tyranny (without knowing the full context) in judging how he will act as a public official. I would look at how he acted as an activist and public official. It isn't like we haven't seen how he worked toward change in this country, not Latin America. OTOH, if one is against the Civil Rights Act of 1964, one might view his constitutional activism differently.

If Brett was able to actually temper his criticism and question his judgment for supporting these two, though again it would be helpful to get the whole context, that's one thing. But, no, even conservatives who support right wing types [and Reagan, the hero of Cruz, on down have] that they deem heroic for dealing with local leftists etc. on that ground alone shouldn't be deemed not to "give a bucket of warm spit for what the Constitution says" if they have for fifty years shown they do respect it, if in an ideological way that some might oppose.

I see your usual selectivity.
 

"It is "beyond me" why we should not look past him praising two people who fought tyranny"

You left out the "to impose". As in, "praising two people who fought to impose tyranny".

Don't pretend that there was ever more than a brief period when either of those two were properly subject to anything but the contempt of anyone who values liberty. They'd shown their true colors long before they got Sanders' admiration. So, why not presume that the admiration was for what they were, not for what the gullible at for a brief while thought they might be?

No. There is no excuse here, and you'd never extend this benefit of the doubt in the opposite direction. Sanders has a history of admiring tyrants. I assume he'd try to emulate his heroes if he were ever given the chance.
 

Brett evidently would like to bring back Fulgencio Batista (ruled 1940 - 1944, 1952 - 1959) & the Somoza family (Nicaragua ruled 1936 - 1979). In his imagination, it seems, conditions were better than they've been under their successors.
 

Sandy:

Enforcing the Constitution as written only poses a problem for totalitarians like Sanders, not the classically liberal Tea Party movement.

When boiled down, there are really only two ideologies in the developed world - classical liberalism and totalitarianism.

Classical liberalism believes in limited government and natural liberties. Totalitarianism does not recognize any limits on government power and believes that liberty is a privilege rather than a right. A totalitarian government does not direct everything (and has never done so historically), just those areas of our lives it considers to be social or economic problems. The only real difference between socialism, fascism and progressivism is what they consider to be problems.

Classical liberalism believes in separating legislative, executive and judicial power and granting the first two powers to a democratic republic. Totalitarianism grants most power to a bureaucracy and that power is absolute - the combination of legislative, executive and judicial. A totalitarian government may have either an elected or a dictatorial nominal representation, but most power is exercised by the bureaucracy. The only close historical analogy is Mandarin China.

Classical liberalism believes that we all own our ideas, labor and property. Totalitarianism believes that government may appropriate or redistribute our ideas, labor and property as it deems necessary to achieve a government goal. Once again, a totalitarian government does not redistribute everything, just what it feels is necessary. The only real difference between socialism, fascism and progressivism is what they consider to be necessary.

In fact, modern totalitarianism as practiced across the developed world is a hybrid of progressivism, socialism and fascism. Yes, America has and continues to employ elements of all three totalitarian ideologies.

Our political class in both major parties are majority totalitarian and mainly differ on who the government should benefit and harm.

In contrast, the Constitution is a classically liberal instrument and the Tea Party rebellion could be called a success if it was enforced as written. All the totalitarian exercises of government power beyond that allowed in Article I, abridgments of our liberty, a bureaucracy exercising absolute power and the myriad redistributions of wealth and property would be reversed. However, over a century of totalitarian government has substantially erased and/or rewritten the document so today's government would be functionally unrecognizable to those who drafted the Constitution.

The Constitution is not preventing Congress from defunding or repealing Obamacare or any other program the Tea Party movement elected a GOP Congress to reverse. All the House needs to do is enact separate spending bills for each department or major program with language defunding and repealing the program into the appropriate department appropriation. The Senate can suspend or better yet end the filibuster with a majority vote to enact repeals or simply enact the defunding bills with a majority vote under the current budgetary exception to the filibuster. If the President vetoes the repeal or defending bills, he only shuts down that agency rather than the entire government. If, for example, the GOP Congress repealed and defunded the EPA's regulations to outlaw coal power in the EPA funding bill, then a presidential veto would only shut down EPA and still accomplish Congress's goal.

Instead, the GOP establishment is pissing all over their voters and joining the Democrat minority to fully fund the programs the voters elected the GOP Congress to reverse. This is a political and not a constitutional problem.
 

Instead, the GOP establishment is pissing all over their voters
# posted by Blogger Bart DePalma : 1:10 PM


The GOP has lost the popular vote in 5 of the last 6 presidential elections. The voters don't actually like you morons very much.
 

As a follow-up to BB's comment on SPAM I AM!, Republican trickle-down economics amounts to pissing on ALL Americans.
 

Shag:

The last president to enact "trickle down" economics by shrinking government was Bill Clinton.
 

The spam regards dealing with water leaks. Perhaps, even trickles.
 

Is SPAM I AM! praising Bill Clinton or Republican trickle down economics? SPAM I AM! should have given a little shake before posting his comment. For perspective, did Newt have a hand on what Clinton allegedly did?
 

Shag:

Slick Willy may be a sexual predator and an unusually talented liar, but the post-1994 Clinton governed as the next most economically conservative post-WWII president after Reagan.

Given that Bill signed off on most of Newt's reforms, you could say that Newt had something to do with the policy of that period.
 

And given that Newt was an adulterer who resigned as Speaker, ....
 

To keep on track, he didn't resign BECAUSE of that; that was another Republican.

https://en.wikipedia.org/wiki/Bob_Livingston

"MR. GINGRICH -- I'm willing to lead but I'm not willing to preside over people who are cannibals. My only fear would be that if I tried to stay, it would just overshadow whoever my successor is. Frankly, Marianne and I could use a break."

http://www.nytimes.com/1998/11/08/us/the-speaker-steps-down-excerpts-from-phone-call-about-gingrich-s-future.html
 

I understand that Gingrich discussed the challenge with his wife Marianne before resigning. But the reporting doesn't reveal whether he discussed this with Calista with whom he had been carrying on an affair for several years, as open "secret" in Congress. And Gingrich's challenger also turned out to be an adulterer. Republicans have had several libertine/libertarian Speakers. So I was half right; close but no cigar.
 

As is often the case Bart is undercut by his own words.

He writes: "Totalitarianism grants most power to a bureaucracy and that power is absolute"

Then later has an entire paragraph on how the GOP controlled Congress could easily neuter any part of the bureaucracy they wanted to. Absolute indeed.
 

Is Mr. W suggesting that SPAM I AM! has an "Absolute" problem that results in inconsistencies? Second hand fumes?
 

Mr. W:

Absolute power is where the executive can decree, enforce and adjudicate law.

Your theoretical legislative power of reversal does not change the fact that the regulatory bureaucracies across the OECD exercise absolute power.
 

Perhaps SPAM I AM! can demonstrate the absolute power of the 2nd A which he seems to believe available to challenge the government.
 

لتحميل اجدد الالعاب وتنزيلها على الكمبيوتر يمكنك الدخول على موقع تحميل العاب
لتنزيل الكثير من الالعاب الامنه والمجانية على الكمبيوتر والموبايل

 

Bart, that's like saying that if I let my butler run my household that he has 'absolute power.' That's ridiculous when I can sack him at anytime. And the fact that I don't want to sack him and therefore don't isn't proof of any power on his part either. The voters pick the reps and the reps make/empower the bureaucracy, and if the people really wanted it otherwise they could pick different reps to do just that at any time. Like all tyrants you're just angry that the people aren't doing what you'd like them to do.
 

اتصلوا بنا تجدونا اينما كنتم وفى كل وقت وكل مكان
نتعامل معكم بافضل جوده واحسن اداء واقل الاسعار
مع شركة اركان المملكه انتو تتعاملون مع افضل شركة بالمملكه ككل
لاننا شركة زات باع كبير فى عالم التنظيف على مر السنين ونعمل باقصى جهد من اجل راحتكم اولااا
:::::::::::::::::::::::::::::::::::::
شركة كشف تسربات المياه بجازان




شركة كشف تسربات المياه بخميس مشيط



شركة كشف تسربات المياه بابها



شركة كشف تسربات المياه بالدمام



شركة كشف تسربات المياه بالرياض

شركة نقل اثاث بجازان



تسليك مجارى بالدمام


شركة تسليك مجارى بخميس مشيط



شركة تسليك مجارى بجازان


شركة تسليك مجارى بنجران

شركة مكافحه حشرات بخميس مشيط

شركة تسليك مجارى بابها

شركة نقل عفش بالرياض


شركة نقل عفش بخميس مشيط

مع شركة اركان المملكه نحن معك دائما وحولك نقدم لك كل ماهو جديد وفعال
بمنتهى القوه والسرعه ندعوكم دائما لزياره مؤسسه اركان المملكه للتمتع بكل ما هو جديد وفعال
 

لا داعى للقلق وانت تتعامل مع شركة اركان المملكه للتنظيف والمكافحه والتسليك
وغير ذالك من كافه انواع التنظيف فى المملكه السعوديه باكملها اذا
كل ما عليكم هو زياره صفحتنا للتطلع على اقل الاسعار المتاحه
والتى تفى احتياجاتكم الخاصه
شركة مكافحة حشرات بالدمام



شركة مكافحة حشرات بابها



شركة رش مبيدات بجازان



شركة مكافحه حشرات بالاحساء



شركة رش مبيدات بالرياض



شركة اركان المملكه

شركة تنظيف بابها

شركة تنظيف فلل بابها

شركة تنظيف بالدمام

شركة تنظيف منازل بالرياض

شركة تنظيف منازل بابها

شركة تنظيف منازل بخميس مشيط

شركة تنظيف شقق بالدمام

شركة تنظيف بجازان

شركة تنظيف بالاحساء
اتصلوا بنا دائما تجدونا فى كل وقت وكل مكان
لاننا نتعامل بمنتهى الدقه والفعاله والاهميه الكبيره مع شركة
اركان المملكه لاداعى للقلق نحن معك دائما
 

Mr. W: Bart, that's like saying that if I let my butler run my household that he has 'absolute power.' That's ridiculous when I can sack him at anytime.

Until you sack him or withdraw that power, your hypothetical butler does indeed exercise "absolute power" over your household.

Until the government "sacks" the bureaucracy or withdraws their legislative and judicial powers, the bureaucracy exercises absolute power.

The British fought a civil war over just this issue. King James exercised absolute power to rewrite the law, grant dispensations from the law and set up his own courts despite the existence of Parliament and the common law courts. Parliament had to go to war to "sack" the king before the crown stopped exercising absolute power.


 

SPAM I AM! informs us "The Butler did it!" and then provides a summary of his version of English history, educating us all. The Absolute Power is intoxicating, proclaims SPAM I AM!, our DUI legal specialist.
 

Bart, if you suggested to anyone that Lord Grantham's butler Carson had 'absolute power' over Lord Grantham's estate they'd think you'd gone daft and invented your own, secret language that only makes sense to you. Absolute means "not qualified in any way;" a person can who can be sacked at whim *by definition* does not have absolute power.

"Parliament had to go to war"

And all you have to do is actually described by yourself in this discussion: convince enough other people to elect a majority in Congress to do exactly what you described above. The fact that people don't want to work with you to do that doesn't mean they can't, it means they don't want to. And like every wanna-be tyrant you really want to reverse what the majority wants to be doing.
 

Mr. W:

The voters have been electing a congressional majority promising to reverse the regulatory onslaught.

The problems are that a fair portion of these candidates are lying and the other is that the Constitution's checks and balances require a elected super majority to reverse the bureaucracy.

Of course, you already know this.
 

SPAM I AM! could coat himself with Vaseline and he still couldn't wriggle free of Mr. W's exposure of SPAM I AM!'s illogic. Earlier SPAM I AM! tried to infuse into the "debate" King James' British Civil War, a trick by a tricky master debater. Once again, the W for Mr. W.
 

Mr. W: Absolute means "not qualified in any way;" a person can who can be sacked at whim *by definition* does not have absolute power.

All power can be taken away.

While a dictator, king or bureaucracy exercises legislative, executive and judicial power, they are exercising absolute power.

The Roman Senate temporarily appointed dictators to short six month terms (in contrast to our immortal bureaucracy). During that appointment, the dictator could decree, execute and adjudicate the law and toss your carcass into prison. Absolute power.
 

Does this idiot really not understand that the legislature can vote to enact laws?
 

BB:

Allow me to illustrate.

The Roman Senate appoints a dictator.

The dictator decrees that all Roman citizens by the name Buster are to be put to death.

The dictator arrests you, hears your pleas for mercy and then orders you executed.

You are crucified on the outskirts of Rome while passing citizens laugh at your shrieks.

Are you really going to argue that the dictator is not exercising absolute power over you because the Roman Senate can vote to enact laws?
 

Are you really going to argue that the dictator is not exercising absolute power over you because the Roman Senate can vote to enact laws?
# posted by Blogger Bart DePalma : 10:47 AM


Dumbfuck, this isn't Rome. The legislature can vote in new laws any time there are enough votes.
 

SPAM I AM! twists an idiom to:

"When in America, do as the Romans did.'

This is a childish debating technique, first King James' British Civil War and now the Romans. Next it'll be Reagan's Iran-Contra?
 

BB: Dumbfuck, this isn't Rome. The legislature can vote in new laws any time there are enough votes.

In my hypo, the Roman Senate did not lack to votes to sack the dictator, they cheerfully gave the dictator absolute power.

The fact that the Senate has the power to enact laws (which BTW the Roman dictator had the power to rewrite or waive by decree, much like our outlaw bureaucracy) does not change the fact that the dictator is, in fact, exercising absolute power.

You and Shag are a perfect are a perfect example of why progressives are totalitarian - there is no length to which you will not go to excuse unlimited government, so long as it advances your ideological or partisan interests. None at all.
 

Is SPAM I AM! of the view that Reagan's Iran-Contra was dictatorial and tyrannical? And remember, SPAM I AM! still claims that The Gilded Age were America's best days. And SPAM I AM! seems to believe that the 2nd A empowers individuals to challenge governments. SPAM I AM! has had his derriere handed to him so many times, a mainsail would serve as a sling. His debate skills may work with the rurals he represents, but SPAM I AM! deals with mishistories and illogic.
 

In my hypo, the Roman Senate did not lack to votes to sack the dictator, they cheerfully gave the dictator absolute power.

# posted by Blogger Bart DePalma : 3:17 PM


Dumbfuck, your hypo has nothing to do with the current reality. We don't have a dictator with absolute power. Congress can pass lows that constrain the President. The Courts can stop the President. You're just angry that they're not doing what you want. Elections have consequences, asshole.
 

Well, BB, when you're right, you're right.
 

BB: We don't have a dictator with absolute power. Congress can pass lows that constrain the President. The Courts can stop the President.

The bureaucracy exercises absolute (legislative, executive and judicial) power.

The Congress does not enact laws restricting the bureaucracy. Instead, they keep expanding the bureaucracy's power over additional areas of our lives.

The Courts have found that the bureaucracy's exercise of absolute power is constitutional and routinely defer to the bureaucracy's interpretation of its own mandates and conclusions. In the handful of cases in which they do not defer, bureaucracy is generally not following its own rules.

Once again, theoretical reversal does not mean that our bureaucratic dictatorship is not exercising absolute power.

The fact that you can but choose not to stop Joe from murdering Harry, does not mean that Joe did not exercise the power to kill. Harry is just as dead.


 

The bureaucracy exercises absolute (legislative, executive and judicial) power.

The Congress does not enact laws restricting the bureaucracy. Instead, they keep expanding the bureaucracy's power over additional areas of our lives.

# posted by Blogger Bart DePalma : 8:33 AM


Dumbfuck, the fact that Congress does not do what you want it to do is not an indication of absolute power. It's an indication that your ideas are not popular.

 

bb: the fact that Congress does not do what you want it to do is not an indication of absolute power.

Congress increasing its unconstitutional delegation of legislative and judicial power to the bureaucracy is indeed an indication of the bureaucracy exercising absolute power.

This is the historical analogy of the Roman Senate granting dictatorial powers to a Mandarin Chinese bureaucracy.

 

Congress increasing its unconstitutional delegation of legislative and judicial power to the bureaucracy is indeed an indication of the bureaucracy exercising absolute power.

# posted by Blogger Bart DePalma : 10:20 AM


This claim is idiotic on multiple levels. First, Congress can't delegate judicial power. And I'm pretty sure that the judicial branch would remind Congress of that should it become an issue. Second, Congress isn't delegating legislative power. The bureaucracy makes rules that can be reviewed by both Congress and the Judiciary.

In short, elections have consequences, asshole.
 

bb: Congress can't delegate judicial power.

Congress can't constitutionally delegate its legislative power either, but it has in fact delegated both to the bureaucracy and the progressive courts have rubber stamped these delegations. The rationalization is that the bureaucracy only exercises "quasi" legislative and judicial power, but that makes no effective difference to the individuals and businesses targeted by this absolute power.
 

Congress can't constitutionally delegate its legislative power either
# posted by Blogger Bart DePalma : 11:29 AM


It can't and it hasn't. Only Congress can pass laws, dumbfuck.

but that makes no effective difference to the individuals and businesses targeted by this absolute power.

It's not "absolute" power, you stupid fuck. Congress can change the law any time it wants to if it has enough votes.
 

BB:

The Federal Register contains over 178,000 pages of regulations decreed by the bureaucracy, which dwarfs the US code enacted by Congress. You have to obey Federal Register regulations like any other law.
 

The Federal Register contains over 178,000 pages of regulations decreed by the bureaucracy, which dwarfs the US code enacted by Congress. You have to obey Federal Register regulations like any other law.
# posted by Blogger Bart DePalma : 1:48 PM


None of which helps your argument in the slightest. Congress can make new laws that will result in different regulations any time it has enough votes.
 

He's not saying Congress has transferred it's law making authority to the bureaucracy to the point where they can't make laws themselves, you nit. He's saying they've delegated it: They're letting somebody else exercise it on their behalf.

That they absolutely have done, and the Constitution doesn't permit it. But the Constitution doesn't permit lots of things that Congress does. Passing laws with 3 people present in the Senate, rewriting laws after they've been voted on, originating revenue bills in the Senate.

They're only pretending to observe the Constitution at this point, and getting tired of bothering with the pretense.
 

Brett said...
He's not saying Congress has transferred it's law making authority to the bureaucracy to the point where they can't make laws themselves, you nit. He's saying they've delegated it: They're letting somebody else exercise it on their behalf.


I'm well aware of exactly what he's saying, you stupid fuck. The problem is that he is claiming that the bureaucracy has "absolute" power, which is idiotic. The group with the law making authority has the power. Got it, nitwit?
 

Brett said...
They're only pretending to observe the Constitution at this point, and getting tired of bothering with the pretense.


And you're only pretending to use the commonly accepted meanings of words, and appear to be tired of bothering with the pretense.
 

BB: The problem is that he is claiming that the bureaucracy has "absolute" power, which is idiotic. The group with the law making authority has the power.

Congress DOES NOT exercise absolute power.

Once again for the terminally slow, absolute power is one body's exercise of all three types of government power - legislative, executive and judicial.

Under our constitutional system, power is divided legislative solely to Congress, executive solely to the President and judicial solely to the courts. This separation of powers to keep any one body from exercising absolute power.

As to the group with lawmaking power, which of the bureaucracy and Congress enacted FAR more law than the other?
 

This comment has been removed by the author.
 

Congress DOES NOT exercise absolute power.

# posted by Blogger Bart DePalma : 5:51 PM


It has the absolute power to pass laws. If you're too fucking stupid to understand the difference between "regulations" and "laws", then I guess you're going to have to live on in ignorance. There is obviously nothing that can be done to help you.
 

BB:

Regulation can take away your family, take away your home, take away your business, take away your job, and toss you in prison.

I have a client who was falsely accused of sexual abuse of her children for playing a rude party game once with her family that her son conned her into buying. I was able to get the baseless statutory criminal charges dismissed at the first court hearing, but the child welfare bureaucracy has separated her from her children for nearly a year now because they have deemed that she has not made sufficient therapeutic progress from her lack of sexual boundaries. It took a court order to keep the bureaucracy from compelling her to undergo the same psycho-sexual evaluations and classes to which they send child molesters.

The Hawkes Co. case before the Supreme Court now is another perfect example of the ninth circle of hell that is our bureaucracy. The Army Corps of Engineers issued a decree that the appellee's property over a hundred miles from the nearest river contains "waters of the United States" requiring them to either abandon their business, seek a Clean Water Act permit to operate which will take years, or subject themselves to a bureaucratic enforcement action if they ignore the decree, all of which will wipe them out financially. The appellee argues that the decree is a "final action" allowing them recourse in the Article III courts, which the bureaucracy is fighting tooth and nail.

And you think that regulation does not have the force of law?

 

Regulation can take away your family

No, it can't.

take away your home

No, it can't.

take away your business, take away your job,

No, and no.

and toss you in prison.

# posted by Blogger Bart DePalma : 10:34 PM


Dumbfuck, that can only happen if the Judicial branch finds you guilty of breaking a law.

It took a court order to keep the bureaucracy from compelling her to undergo the same psycho-sexual evaluations and classes to which they send child molesters.

Court orders don't stop people who have absolute power. Game. Set. Match. You lose. Shut the fuck up.
 

BB:

During a regulatory enforcement action they can take all those things away from you unless a court orders them to give them back.

If you can afford to pursue a years long legal action to recover the things taken from you, the courts routinely defer to the bureaucracy, The government does not provide you with public defenders against the bureaucracy.
 

unless a court orders them to give them back.

# posted by Blogger Bart DePalma : 11:20 AM


Seriously, shut the fuck up.
 

screaming expletives to a baby doesn't work that well & this won't either except I guess as a stress relief mechanism
 

BB:

Once again for the terminally slow, the possibility of another branch of government reversing a grant of absolute power does not change the fact that the bureaucracy exercises absolute power unless that reversal occurs.

The Roman Senate's grant of absolute power to dictators was temporary, but existed while the dictator held office.

Prior to the Glorious Revolution, the crown exercised absolute power without any grant from Parliament or the courts, even though these other bodies of government legally held the power to reverse the crown's decrees. Parliament had to go to war to depose the king to stop the crown's exercise of absolute power.

In the Enabling Act of 1933, the German Reichstag granted Hitler the power to rule by decree. Although the Reichstag legally had the power to reverse that act, they never did. Hitler exercised absolute power until the Allies conquered Germany.
 

Stress relief. Dealing with that sort of blind stupidity is a little stressful.
 

Bart DePalma said...
BB:

Once again for the terminally slow, the possibility of another branch of government reversing a grant of absolute power does not change the fact that the bureaucracy exercises absolute power unless that reversal occurs.


Dumbfuck, the fact that another branch of government can reverse the action means that the power is NOT absolute.
 

That is true whether the action is reversed or not.
 

Blankshot, are you aware that "more power than I would like when there is a dark skinned President" is NOT the same thing as "absolute power"?
 

"It took a court order to keep the bureaucracy from compelling her to undergo the same psycho-sexual evaluations and classes to which they send child molesters.

Court orders don't stop people who have absolute power. Game. Set. Match."

Lol, BB ate Bart's lunch there. And he walked right into it. 'Absolute power' thwarted by a court order...

Bart lives in his own lexicon and perhaps reality. Absolute literally means total, if there is someone who can take away every bit of power of some second person then it's absurd to say the second person has 'absolute power.' Bart's unique understanding of common English words would lead him to think Lord Grantham's butler has 'absolute power' over Grantham's estate. When you're seeing the butler as having 'absolute power' you've gone off the rails.

This conversation started with Bart writing, in great detail, exactly how the regularly elected Congress could stop every part of the bureaucracy tomorrow. That's 'absolute?' Like all wannabe tyrants Bart sees any outcome that he doesn't like as illegitimate- we see that not only here in his political theory but in his many pronouncements of judicial decisions upon which people from both parties and ideologies come to reasonable disagreement as 'usurpations' and such.

The facts are these: we have a regularly elected legislature that has the power to stop every bureaucracy action tomorrow if they wanted (Bart himself has described how they can do that). But more than this, we see the federal bureaucracy stopped in doing what it wants by courts all the time (not just Bart's own given example of a state analogue, but everytime you read on this and other SCOTUS sites about the courts ruling against a federal agency). But even more than this, we have a long record that can be sited where when one administration ends and another is elected the incoming administration will *change (including overturning and replacing) regulations set by the previous administration(s). If bureaucracy were possessed of 'absolute power' then the election of a new executive wouldn't mean they have to reverse and replace their previous decrees.

What always gets me is how Bart can take something that might have been a point reasonably made and takes it to a ludicrous extreme. He can't just say 'there's too much delegation, not enough oversight, and that undercuts democracy.' No, he must conjure up a hyperbolic strawman to do battle with, an 'absolutely powerful' bureaucracy that rules as the 'Roman dictators.' I guess that plays well with fellow fanatics and talk radio aficionados, but it smells of exaggerated nonsense to most, turning them immediately away from the point trying to be made.
 

Movie for today: http://www.imdb.com/title/tt0118548/ (Absolute Power)
 

Mr. W:

Absolute power is the current exercise by one body of all three types of power - legislative, executive and judicial. This is not my definition but rather the one established by Rome and the subsequent European monarchs who applied the Roman civil rules of power, who then increasingly transferred those powers to a bureaucracy to rule over ever-growing nation states.

You and not I took the definition of absolute power to an unhistoric extreme.

Absolute power does NOT require the exercise of all government power or that the exercise of absolute power be permanent without any possibility of reversal. No dictator, king or bureaucracy ever exercised such power. Dictators, kings and bureaucrats almost always shared some measure of government power with other entities. The only being who ever exercised your definition of absolute power is God.

Whether an executive should exercise absolute power was arguably the central issue of Anglo American law over the past millennium and is hardly something of my invention for a book project. Lord Acton's famous dictum:"power corrupts and absolute power corrupts absolutely" referred to this issue. Anglo American law turned to constitutional government with a separation of powers precisely to prevent executives from exercising absolute power.

Let us place your arguments in historical perspective...

Because the regularly elected Roman Senate can withdraw a dictator's power tomorrow, this means that the dictator does not really exercise absolute power. Ceasar was really just a servant of the Roman Senate.

Because the British common law courts occasionally ruled against King James's exercise of absolute power, the Crown really did not exercise absolute power and the Glorious Revolution and the English Bill of Rights were completely unnecessary. Instead of taking things to a ludicrous extreme by waging civil war against the crown, the fanatics in Parliament could have just said that the king was exercising too much power without enough oversight.

Really???

This is not a difficult subject. Do you have a light going off in your noggin yet?


 

This is not a difficult subject. Do you have a light going off in your noggin yet?


# posted by Blogger Bart DePalma : 1:25 PM


You're right, it's not that difficult. Which makes me wonder how you avoid starvation.
 

Bart DePalma said...
Mr. W:

Let us place your arguments in historical perspective...


LOL These polls are GREAT news for John McCain!

Blankshot, perspective isn't really one of your strengths.
 

Bart, this is a matter of simple English. Absolute means "not qualified or diminished in any way; total." When someone or thing has powers that could be overruled totally tomorrow by another body (as you yourself have detailed how in this very discussion), when courts can stop the powers of the bureaucracy (as you yourself have described), when the voters can choose a new administration which then can and historically has reversed many of the bureaucracy's directives, then it is qualified, it is diminished, it is not total and therefore it is not absolute.

Your history is inapposite; James indeed was not an absolute ruler in any sense (this doesn't mean that he abused his position or that his position was not too powerful, see how one can object to something without demonstrably false hyperbolic language?); Ceasar was not under the control of the Senate, he overstepped his authority when he crossed the Rubicon and then ruled through the threat of force, however our Courts, legislature and successive executive administrations reverse a regulation of the bureaucracy commonly. But even if your history were somehow relevant it wouldn't trump English.
 

Mr. W:

I have tried my best.

If you have any desire to educate yourself on the subject, I suggest you start with the extensively sources history laid out by Philip Hamburger over several hundred pages in Is Administrative Law Unlawful? I have more books when you are through there.
 

I have tried my best.

# posted by Blogger Bart DePalma : 3:47 PM


Tried what? You look like an idiot.
 

Apparently SPAM I AM!'s best is as Hamburger Helper. But there are several excellent books/reviews/aticles highly critical of Hamburger's meatloaf version of the Administrative State.
 

Anything that Blankshot uses as a source automatically goes on my "do not read" list.
 

Bart, likewise, I've tried my best. If you'd care to educate yourself further I'd recommend you starting with anything from Merriam-Webster, any edition. They even have ones for children, usually with pictures.
 

"there are several excellent books/reviews/aticles highly critical of Hamburger's meatloaf version of the Administrative State."

I haven't read Hamburger's book, so I'm hesitant to comment on it. But I did read a transcript of a talk he gave on the book at Hillsdale College. It was startlingly bad, almost child like in it's mistakes. Interestingly, much of Bart's language and examples on this subject are lifted almost completely from Hamburger's.
 

One process I find tedious, though at times it simply is necessary given disputes that are often covered up without doing it, is drawn out debates over words that seem to be clear enough in middle school or earlier.

"The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated."

http://www.constitution.org/fed/federa37.htm

But, some manage better than others. Hyperbole is also a pet peeve of mine though it's best to let it go to some degree. People tend to speak somewhat loosely. At some point, it does cloud one's thinking.
 

Mr. W/Shag:

I would not advise going to Merriam-Webster for the definition of historical terms of art.

You can take or leave Hamburger's thesis in Is Administrative Law Unlawful? and still benefit from his extensively sourced history of the concept of absolute power from Rome to England and Germany. The only useful history Hamburger misses is that of the Mandarin Chinese bureaucracy.


 

Now SPAM I AM! is going citrus to prove his mishistory chops. When SPAM I AM! attempts to "educate" us with his mishistory, just think of Sam Cooke's opening "Don't know much about history ... " to consider SPAM I AM!'s not so wonderful world with his wet dreams of America's glory days of The Gilded Age.

By the Bybee [expletives deleted], is SPAM I AM! attracting any lemmings?
 

This comment has been removed by the author.
 

In election law news, EVENWEL v. ABBOTT, GOVERNOR OF TEXAS handed down today 8-0 though Thomas and Alito have concurrences.

http://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf
 

I just finished reading"Working Themselves Impure: A Life-Cycle Thory of Legal Theories" by Jeremy K Kessler and David E. Pozen. I accomplished this over several days, magnifying the 54 page article in PDF form on my computer for magnification. This made it difficult to check footnotes as readily as with hard copy. Here is an excerpt from page 46 from Part V.A.:

***

It follows that the early proponents and opponents of these theories may not be playing for as high stakes as they think. The former can hope to achieve only partial victory. As time goes by, theories such as originalism, textualism, popular constitutionalism, and CBA [Cost-Benefit Analysis] end up not so much displacing as encompassing rival approaches such as living constitutionalism, purposivism, departmentalism, and qualitative analysis. If proponents of prescriptive legal theories find this observation to be chastening, opponents might find it a source of comfort—and power. Critics of ascendant theoretical movements, we have seen, may be able to “win through losing”250 by prompting concessions and tempering the perceived excesses of a disfavored theory. While an appreciation of the life cycle may counsel a certain realism about legal reform, it does not justify fatalism or quiescence.

***

This excerpt is provided to identify the legal theories in law addressed in the article. I found this to be a most interesting article, including on CBA and the discussion of Executive Orders by Reagan and by Obama on regulations. The legal theories discussed address public law. And no, It's not like Seinfeld's Kramer's Coffee Table book on coffee tables. This article was posted on in the week or so at the Legal History Blog and the Legal Theory Blog that provide links to SSRN and the article.
 

While "One person, one vote" lives on, in Republican controlled states steps have been taken and continue to be taken to reduce the number of voters by imposing certain restrictions to avoid virtually non-existant voting fraud.
 

The Originalism Blog has a post today on the Kessler et al article, with a link not only to SSRN but also to to the Legal Theory Blog and Larry Solums editorial comment on the article. I detect sensitivities.
 

Ah, now you retreat into 'term of art' territory. Lol.

As to Hamburger's book, I normally prefer to get my history from historians, not law professors, and what I've read from him on this subject makes me no more less inclined than usual. Hamburger's level of argument is really terrible, it's along the lines of: Hitler didn't eat meat, vegetarians don't eat meat, vegetarians=Hitler!!!! For him, it's the infamous Star Chamber was an executive quasi-adjudicatory body that didn't meet in public, modern administrative tribunals are executive quasi-adjudicatory bodies that often don't meet in public, therefore modern administrative tribunals=the Star Chamber!!!! Not only is there this poor type of argument by analogy, the analogies seem profoundly ignorant (are we supposed to not recall that modern administrative tribunals operate under Administrative Procedure Acts, that their rulings are appealable to independent courts, etc???).

Again, it's really terrible. It's like people who say King James had a standing army, we have a standing army, therefore we're like the rule of King James!!! It leaves out so much that is relevant (about how standing armies of today and then are constituted, what legal structures and popular norms they operate under, etc) that it's just almost childish type of reasoning. It's hard to believe that guy teaches at Columbia (maybe it's part of an affirmative action for conservative academics we hear about).
 

Oh, and to bring this around to constitutional cases: it's really interesting that one area Hamburger indicts current administrative law on is that in administrative hearings one doesn't usually have all the due process as in court hearings. This is particularly galling imo, since when cases like Matthews v. Eldridge started to demand greater due process for people before administrative hearings it was the conservative judges and law profs who loudly complained (because the cases are often about termination of government benefits, like welfare, and they didn't want it to be *harder* to terminate someone's government benefits). Now we have a conservative charging that the problem with administrative law is *not enough due process.* This really shows me that the real bottom line for conservatives is just: we want less federal ability to most anything (unless it's law enforcement, immigrant or terrorism related, of course), then they're just willing to throw whatever on the wall in furtherance of the goal, even contradictory efforts, and hope something sticks.
 

(unless it's law enforcement, immigrant or terrorism related, of course), then they're just willing to throw whatever on the wall in furtherance of the goal, even contradictory efforts, and hope something sticks.
# posted by Blogger Mista Whiskas : 2:03 PM


Wait, you mean that Blankshot completely supports absolute administrative power if it's a cop shooting a black kid for no particularly good reason?!?
 

Not to beat a guy when he's down but didn't find Hamburger's book on the 1A/religion convincing either. I did not read him on this subject.

But one expert criticism on his past work:

http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1313&context=californialawreview

Looking at his c.v., Hamburger is cited as a legal historian though I don't know how much formal education in history he obtained. In my reading over the years, saw historical scholarship from those specifically trained in history a mixed bag -- we see that in law too. You know, like QED.

But, surely, official training here helps. Still, I have found many good books covering historical subjects not written by formal historians. It is helpful if they showed their skills in the past and historians find their work sound.

Philip Hamburger has received criticism here on more than one subject. But, I assume you can try to make your case either way without him.

http://forthemommas.com/wp-content/uploads/2011/06/Screen-shot-2011-06-22-at-8.48.56-AM.png
 

John Oliver recently commented on the great amount of time Congress' members spend on raising campaign funds. Congress members don't have the time to legislate on the matters that the agencies they authorized and the Administrative Procedures Act with its requirements on such agencies. Right now, due to Republicans, there is political dysfunction. Imagine how much greater the dysfunction would be if Congress eliminated the Administrative State and its members had to address issues faced by an America with a population of over 500 million as compared to 4 million back at the beginning.
 

"Wait, you mean that Blankshot completely supports absolute administrative power if it's a cop shooting a black kid for no particularly good reason?!? "

Remember that Bart has defended the Bush doctrine that the Executive can, going by whatever procedures it deems appropriate designate, detain indefinitely, adjudicate and punish (including death) 'enemy combatants' (citizens and non-citizens!) all without judicial review and legislative interference. Think about that. You don't get to complain about 'absolute' executive power when you defend that kind of unchecked, unilateral executive power over life and liberty.
 

I'm pretty sure that Blankshot is only ok with that sort of unchecked power when the executive has an R next to his name.
 

Mr. W: As to Hamburger's book, I normally prefer to get my history from historians, not law professors

The book uses either primary sources or books by historians.

what I've read from him on this subject

Read the book first before you comment on it. Your comments bear no resemblance at all to the book.

modern administrative tribunals=the Star Chamber!!

Having practiced in front of administrative courts, the comparison is apt. The hearing officers are heavily biased toward the bureaucracy, there is no jury, there is very limited ability to gather evidence, and civil courts hearing appeals routinely defer to the hearing rulings. I have better luck negotiating a settlement with the enforcement official.
 

Shag: John Oliver recently commented on the great amount of time Congress' members spend on raising campaign funds. Congress members don't have the time to legislate on the matters that the agencies they authorized and the Administrative Procedures Act with its requirements on such agencies.

More than a grain of truth in that. Congress does not like to legislate on hard issues because it takes a great deal of work and they will piss off some voting block. It is so much easier to simply delegate your power and responsibility to an unelected body working largely in secret.
 

Mr. W:

A police shooting is a matter for the DA to review.

Foreign enemy combatants are not part of the people and have no rights under the Constitution. Piss poor analogy.




 

So SPAM I AM! blames Congress for creating the Administrative State, blames the Executive for its dual, triple roles in the Administrative State, and blames the Court for accommodating the Administrative State by not reining in the Administrative State, in particulr not recognizing the Administrative State as a delegation of Congress' legislative powers. We're doome. Sure, pur food and drugs and clean water and a livable environment, healthcare, etc, make life a lot better for a lot of us, But then there's that non-delegation issue raised in the 1787 Constitution. But the Administrative State goes back well before the New Deal. So perhaps non-delegation is sort of like the frog in water being heated?

By the Bybee {expletives deleted], here's a link to Adrian Vermeule's review of Hamburger's book:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488724
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Shag:

As is generally the case when they cannot legally defend a bureaucracy exercising absolute power, progressives offer a parade of horribles which would occur if we did not allow the bureaucracy to decree law.

Our elected Congress can enact all necessary law, the executive bureaucracy can enforce it and refer prosecutions to the Article III courts for jury trial.

What really disturbs progressives is that no elected Congress accountable to the voters would have enacted the vast majority of the Federal Register into law. The only way progressives can impose most of their preferred policies is by bureaucratic decree. See Obamacare.
 

SPAM I AM! seems to believe in pure libertarianism, including with respect to healthcare, clean air, etc. But voters elect Congress, which does little about dismantling the Administrative State, perhaps because voters might react negatively. Perhaps the voters are progressives. Pure libertarianism suggests pulling oneself up by one's own bootstraps, an act, if it could be done, that would damage one's face, requiring healthcare that pure libertarians would prefer to be paid out of pocket without government assistance. Fortunately there are few pure libertarians as interdependency keeps 300+ million together. And claims that the Constitution was enacted as a libertarian document are pure crapola. Now how many votes did the Libertarian Party get in 2012?
 

Shag:

Many voters ARE totalitarians. The credentialed caste make up the totalitarian base, but make up less than 10% of the electorate. government dependents make up most of the rest of the totalitarian vote and can become a majority if government gets enough voters to rely upon other people's money.

America used to be exceptional, but there is no rule of life preventing Americans from following the same path as European into progressive/socialist decline and then turning to fascism when progressivism/socialism fails. Indeed, the 2016 election suggests that transition may be starting.
 

SPAM I AM! informs us:

"America used to be exceptional, ...."

Was this at the Founding, Framing Ratifying in the late 18th century with slavery in vogue and limited rights for women, Native Americans, etc? Or with pos-Reconstruction Jim Crow that lasted for many decades into the 20th century until the civil rights movement sparked by Brown v. Bd of Educ. (Unanimous, 1954), or was it the late 19th century's The Gilded Age that SPAM I AM! claims were America's best days, or the Supreme Court's election of George W. Bush with it 5-4 Bush v. Gore decision that gave us 8 years of Bush Cheney that ended with its inglorious 2007-8 Great Recession, or the election, by voters, in 2008 of America's first African-AmeAmericacan President, or the GOP Clown Limo candidates for 2016? In SPAM I AM!'s view, if only The Gilded Age had continued we would still be exceptional. Alas, exceptionalism is in the eye of the beholder. Once again SPAM I AM! is back at his Chicken Little mood, proclaiming America's "Sky is falling! Will SPAM I AM! attract any lemmings, like Trump's base?
 

"A police shooting is a matter for the DA to review."

As usual you couldn't have chosen a worse example to rely on, American prosecutors are a position that is renowned as one with incredibly high levels of unchecked discretionary power ripe for abuse. Pointing to this example to *defend* Presidential executive action that you support in this instance shows how clueless you are in this area.

And you've added nothing new in your defense of Hamburger's ludicrous analogy of the Star Chamber and current American administrative courts, so I'll just repeat my initial points:

Hamburger's level of argument is really terrible, it's along the lines of: Hitler didn't eat meat, vegetarians don't eat meat, vegetarians=Hitler!!!! For him, it's the infamous Star Chamber was an executive quasi-adjudicatory body that didn't meet in public, modern administrative tribunals are executive quasi-adjudicatory bodies that often don't meet in public, therefore modern administrative tribunals=the Star Chamber!!!! Not only is there this poor type of argument by analogy, the analogies seem profoundly ignorant (are we supposed to not recall that modern administrative tribunals operate under Administrative Procedure Acts, that their rulings are appealable to independent courts, etc???).

Again, it's really terrible. It's like people who say King James had a standing army, we have a standing army, therefore we're like the rule of King James!!! It leaves out so much that is relevant (about how standing armies of today and then are constituted, what legal structures and popular norms they operate under, etc) that it's just almost childish type of reasoning.


 

I am sure that Democrats will be equally frustrated if Clinton wins without flipping the Senate and the House!!! We'll see! Our www.proofreading-services.org work in sooth hard in order to make your writing flow like a river:)

 

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