After Barack Obama was elected President in 2008, Chief Justice John Roberts invited the President-elect to pay a courtesy call on the Court prior to his inauguration. The President-elect and Joe Biden accepted his invitation and met with eight of the nine Justices (Justice Alito was the only no-show).
As far as I can tell, no similar invitation was issued by the Chief Justice to President-elect Trump, or else the President-elect declined the invitation. I'd love to hear an explanation for this.
UPDATE: There is a story this evening that says the Chief Justice did invite Trump to visit the Court, but they could not work out a convenient time.
Why would you believe any explanation the Trump camp might give?
ReplyDeleteSince Prof. Balkin didn't open comments to his post, I'll put some thoughts here. Apologies to Prof. Magliocca for intruding on his turf.
ReplyDeleteI'm not a big fan of Skowronek's classification scheme. I've said this before. Trump's illegitimate election brings some new possibilities to mind, however.
Let's start with the existing "regime" as it stands today. We could refer to it as the "Reagan regime" or, as I'd prefer, the "Nixon/Reagan regime". The fact is, though, that both seem to me (and to many in the R party) to be subsets of the paradigm set by FDR.
Starting tomorrow we will have a unique situation: whereas Reagan and Nixon were forced to nibble and trim that paradigm because they never had a Congress willing to undo it, and whereas George W. Bush lacked the attitude for such a revolution, the Rs are now in position to undertake one. Trump is tempermentally inclined to destroy. Steve Bannon, in his own words, wants to destroy the existing order. There is a Congress now filled with Rs who've openly advocated a return to the federal government pre-FDR (not that most of those in Congress could accurately describe that world, but they gesture to it rhetorically). This sets the stage for a presidency that will likely be seen either as transformational or as destructive (and the 2 are not unrelated; call it "creative destruction").
There are some signs that this may not proceed smoothly. For one thing, Paul Ryan's vision and Steve Bannon's don't overlap in many significant details. For another, most of Trump's administrative appointments are incompetent, which may lend itself to destruction but not transformation. A third is that the actual R policies advocated in Congress are wildly unpopular. Trump's status as an historically unpopular, minority, and fundamentally illegitimate president may worsen the unpopularity of those policies. Finally, the Trump family corruption may bring down his intended regime the way Watergate did with Nixon.
My personal guess (and not only is it a guess, but I'm usually terrible at such guesses) is that the most likely result of the next 4 years will be chaos and destruction, but not any replacement policies that can actually work. I see the destruction in foreign policy as likely to be worse, but we can expect quite a lot in domestic affairs as well.
Prof. Balkin may be view that as setting the table for the next transformative president, but I'm not so sure. The electoral system in the US today works so strongly against the partisan dominance of the federal government which will be required that I'm not sure any new regime will have the ability to carry out the reconstruction necessary. And that's putting aside the extent to which the Rs will make even greater efforts to prevent democracy from working. I'm not sure the destruction will be fixable in even 20 years, much less in one "transformative" presidency.
Off topic, I saw this:
ReplyDeletehttps://www.bostonglobe.com/metro/regionals/west/2017/01/18/brookline-seeks-new-poet-laureate/g9u4cX9IhVzzgu9jIxIu4H/story.html
I nominate Shag from Brookline as the doggerel poet laureate.
On topic, has this been a long term norm with Rehnquist inviting Bush et. al.? Do we have news coverage over the years about the meetings? As to this specific question, the news is out that all eight will go to the inauguration (not quite like State of the Union; if nothing else, they would be there for their Chief). But, guess with everything else, this important matter fell through the cracks.
Anyway, sure as to comment #1, but official b.s. could be useful -- for instance, to cite something totally not apropos, sometimes the best way to get to the truth was to read between the lines of official Pravda accounts.
Second comment. Besides that, Mr. Lincoln, how was the play?
ReplyDeleteQuick addition: I should describe the current paradigm as "FDR/LBJ".
ReplyDeleteThe play got bad reviews and I expect it to be worse than advertised.
Mark
ReplyDeleteI think that Trump and the GOP can get quite a lot done, look at the states like Wisconsin for an example. But, I think they have four years to do it. Trump is coming in having gotten less votes than the person he defeated (the spectacularly undemocratic nature of our system has to be mentioned there) and high unpopularity, and what's more his greatest source of votes at the margins (that is, other than die hard Republicans who would vote for anything with an R beside it) were 'anti-Establishment' voters. Being the 'ant-Establishment' presidential choice is a well one can go to only one time. As long as the Dems don't nominate someone equivalent to the GOP did in 12 it's hard to see Trump winning as an incumbent.
"I'd love to hear an explanation for this."
ReplyDeleteRoberts was afraid he'd stop being invited to all the right parties?
"I'm not a big fan of Skowronek's classification scheme. I've said this before. Trump's illegitimate election brings some new possibilities to mind, however."
ReplyDeleteNot a big fan either. Basically the sample size, over a long period of time with very different circumstances, makes creating a valid classification scheme implausible.
And, of course, Trump was legitimately elected. He was elected per the legal rules at the time he ran, and there's no suggestion I'm aware of that he engaged in large scale ballot fraud.
It's a very troubling trend that the left can no longer accept that they can legitimately lose an election.
It's a very troubling trend that the left can no longer accept that they can legitimately lose an election.
ReplyDeleteWell, let's see:
1. One party tried to impeach a duly elected president.
2. One party recalled the properly elected governor of CA for no good reason.
3. One party tries to suppress the vote of its opponents.
4. One party gerrymanders legislative and Congressional districts to an extreme degree.
5. One party appointed a Chief Justice whose partisan opinion gutted the VRA on spurious grounds in order to permit #3.
6. One party flat out stole the election of 2000.
7. One party received the benefit of unprecedented FBI interference in this election.
8. One party received the benefit of foreign espionage in this election.
9. One party most likely received foreign money in this election.
10. One party has twice "won" elections with a minority of the popular vote, contrary to democratic legitimacy.
I could go on, but that's enough to establish that this party is not my party. The only real question is whether your side can ever accept that it might legitimately lose an election.
"1. One party tried to impeach a duly elected president."
ReplyDeleteThe rules permit this, so it's legitimate.
"2. One party recalled the properly elected governor of CA for no good reason."
See point 1, and the voters apparently thought there was a good reason.
"3. One party tries to suppress the vote of its opponents."
I find it rather tasteless to compare very slight inconveniences to vote suppression. For instance, claiming that N.C. is suppressing the vote by having about a month more early voting than N.Y.
"4. One party gerrymanders legislative and Congressional districts to an extreme degree."
"One"? Bwah ha ha!
"5. One party appointed a Chief Justice whose partisan opinion gutted the VRA on spurious grounds in order to permit #3."
Losing sides in court cases frequently think the winning side's case was bad.
"6. One party flat out stole the election of 2000."
No, the attempt to keep recounting over and over until the "right" result was achieved, and then stop, in violation of state election laws, was thwarted.
"7. One party received the benefit of unprecedented FBI interference in this election."
In the form of the FBI publicly clearing their candidate by attributing to a strict liability law the requirement for intent.
"8. One party received the benefit of foreign espionage in this election."
Even supposing this true, it was no more than journalists used to think was their job. I don't, BTW, suppose it true.
"9. One party most likely received foreign money in this election."
Quoting myself, "One? Bwah ha ha!"
"10. One party has twice "won" elections with a minority of the popular vote, contrary to democratic legitimacy."
Twice won according to the pre-existing rules which both parties were attempting to win under.
Yes, I'm sure you could go on and on, and only establish my point more strongly.
I'm somewhat hesitant to cite #4 given political gerrymandering is more than other things something "both sides" do in this context. I'm sure things like mid-decade districting etc. can be cited there with some bite but given there is so much more out there, I'll leave it be at it having some significant effect on ability to win. As to #1, the problem would more be the reasons for the impeachment.
ReplyDelete"It's a very troubling trend that the left can no longer accept that they can legitimately lose an election."
Mark Field sets up an argument that the system is so illegitimate that the Republican majority is arguably not legitimate. This is far from "the left" position necessarily, Mark Field not somehow their spokesperson any more than BB or BP being the spokespeople of the Right. All really are not quite typical, tbh.
And, it is not the same as saying Democrats cannot "legitimately" lose "an" election as if some Republican wins a mayoral election in Alaska 70-30 it cannot be accepted as legitimate. Of course, to use a term that is repeatedly not warranted, we are talking about Trump specifically and just what "legitimate" means.
http://www.dorfonlaw.org/2017/01/does-it-matter-whether-trump-is.html
"Any of these facts alone or in combination could call into question the legitimacy of Trump's election, if one defines a legitimate president as one who was chosen by the American people based on a free and fair election."
The deeper meaning used by Mark Field specifically is not somehow ideologically left leaning. It can be applied by various sides that find certain practices, if in various cases facially legal, to be illegitimate based on basic republican values. The debate then is on details. Thus, "slight inconvenience" matters to some when it involves guns, less so voting, different standards used too depending on the ox.
I'm somewhat hesitant to cite #4 given political gerrymandering is more than other things something "both sides" do in this context.
ReplyDeleteYes, both sides gerrymander, but Rs do it much more. At the Fed level, Sam Wang estimates that they gained an extra 15 seats in 2014 for that reason. At the state level, they do it more because they can -- as noted here recently, they control more states.
The deeper meaning used by Mark Field specifically is not somehow ideologically left leaning.
Yes, unless "democracy" is ideologically "left". Which, these days, I suppose it may be.
Mark Field sets up an argument that the system is so illegitimate that the Republican majority is arguably not legitimate.
Substantially true, though I added some factors which were specific to this election.
" the left can no longer accept that they can legitimately lose an election."
ReplyDeleteWhen was the last election the GOP lost where they didn't go on and on about fraudulent voting? They did it in 08, 12, heck where they lost this time out they did it (see NC).
"the attempt to keep recounting over and over until the "right" result was achieved, and then stop, in violation of state election law"
Aren't you supposed to be a 'states right' proponent? One would think you'd think the state Supreme Court, not the federal courts, would best determine questions of state election law...
"Even supposing this true, it was no more than journalists used to think was their job"
ReplyDeleteJournalists used to think it was their job to break into one sides political operatives records and publish them selectively?
Well, back to the subject of the post.
ReplyDeletehttp://blogs.wsj.com/washwire/2017/01/19/no-supreme-court-visit-for-trump/
Per my comment, some details of past practice are cited. A public statement:
“Unfortunately, the meeting could not be arranged in light of the court’s oral argument schedule and the previous commitments of all concerned,” the court’s public information office said Thursday.
Right. Roberts got to have a quick meeting with Trump.
"Journalists used to think it was their job to break into one sides political operatives records and publish them selectively?"
ReplyDeleteRemember when Bob Woodward was a hero, before he had negative things to say about Hillary? Remember the Pentagon papers being published? Yes, journalists once thought it was their job to expose secret scandals, even if the details were obtained illegally.
You might protest that nobody has exposed the Republican party secretly working to defeat one of the candidates for it's nomination. Nobody had to, they were doing it openly.
Ha ha, the hacks have more to do with what Nixon did that Woodward exposed (remember, it was breaking into a campaign headquarters and intercepting their internal communications).
ReplyDeleteWikileaks is quite adamant that the DNC emails are the result of an internal leaker, not hacking of any sort. Since the claims to the contrary are conspicuously devoid of actual evidence, I'm going with that. Thus it's my position that the Wikileaks are basically indistinguishable from what Woodward exposed.
ReplyDeleteAssange's contention v the conclusion arrived at independently by a half dozen different Intel and LE agencies?
ReplyDeleteAnd, what's your reason for thinking that the intelligence agencies independently arrived at a conclusion that makes the incoming President of the opposing party look bad? Because intelligence agencies are generally perfectly trustworthy, never coordinate, and never agree to help advance the current President's political agenda?
ReplyDeleteActually the Intel agencies are notoriously independent of each other and often include leadership different from the party out of power. As you say, they have a new boss coming in, what possible reason would they have to release this now rather than before the election?
ReplyDeleteAlso, you claim to not believe their claim because you say no evidence for it has been offered for it. What evidence has Wikileaks offered for its claim this came from internal leakers?
How might Komrade Brett respond to Alec Baldwin's Trump-like Shakespearean "To pee or not to pee, that is the question."? Trump's campaign may have to do more than "man-a-fort" that might turn out to be his Alamo.
ReplyDeleteBy the Bybee [expletives deleted], while Trump considers Baldwin's mimicry efforts as not funny, sad, I understand Putin enjoys his SNL alter-ego.
Yesterday on the Decades channel I watched Nixon's inaugural speech in1972, well aware, as I lived through it, of Nixon's quick unravelling thereafter as Watergate was exposed. At the time we knew little of Nixon's involvement. In contrast, we have details of Trump's past, financial and lurid, as we soon are about to listen to his inaugural speech to make comparisons. I'll be listening with care, downloading the speech for useful future comparative quotes as the Trump Administration digresses.
ReplyDeleteSPAM I AM! might check out Erip Posner's Blog to link to his:
ReplyDeleteThe Dictator’s Handbook, U.S. Edition Eric A. Posner1 January 19, 2017
for those concerned with tyrannyphobia (aka Trumpophobia).
T minus 22 minutes, and counting. Of the next couple of years, I am certain of only one thing: A lot of people are going to have their expectations shattered.
ReplyDeleteOnly fools are certain they know which set of people.
I suspect one of Komrade Brett's favorite songs is "Fools Rush In Where Angels Fear To Tread" as he dreams of when he thought America was great in his youth in northern Michigus pulling radishes in competition with Mexican farm laborers, little then thinking of their (radishes) redness influence on Trump's "To Russia With Love" campaign theme. [Note: I am aware there are white radishes, thank you.]
ReplyDeleteBy the Bybee [expletives deleted], for some of us the countdown starts at noon.
Well, it's done. Enjoying the speech.
ReplyDeleteI liked quite a bit of the speech myself.
ReplyDeleteUPDATE: There is a story this evening that says the Chief Justice did invite Trump to visit the Court, but they could not work out a convenient time.
ReplyDeleteTranslation: Obama blew off the Supreme Court.
Gerard, will you take the outgoing president to task the way you were taking the Chief Justice?
Mark: Let's start with the existing "regime" as it stands today. We could refer to it as the "Reagan regime" or, as I'd prefer, the "Nixon/Reagan regime". The fact is, though, that both seem to me (and to many in the R party) to be subsets of the paradigm set by FDR. Starting tomorrow we will have a unique situation: whereas Reagan and Nixon were forced to nibble and trim that paradigm because they never had a Congress willing to undo it...
ReplyDeleteDoes Skowronek's classification scheme use the term paradigm for the type of political economy in place at the time or as a change in the political point of view of the electorate?
In the case of the former, we have only had two political economies in the United States - laissez faire over the first century and then a growing progressive political economy afterward, made long term by FDR.
In the case of the latter, Nixon competes with Obama as the most progressive post-WWII president - dramatically expanding the bureaucracy, making taxes more punitively progressive, printing fiat money and imposing wage and price controls. However, Reagan did change how the American people look at government, even if he was only able to slightly reverse the expansion of progressive political economy for a time.
"the Rs are now in position to undertake one."
I would love nothing better than to reverse the failing progressive political economy. Even if he wants to do so (no sure thing), Trump faces a very entrenched political class seeking to protect their power under this system.
Both party establishments are fully purchased into the status quo and the GOP congressional leadership has been in an unofficial alliance with the Democrats enacting budgets to full fund the progressive state.
Does Trump have Reagan's ability to create a coalition between the true limited government conservatives and the establishment to enact even Reagan's modest rollbacks (substantial tax reform, but a mere slowing the growth of spending and regulation) of the progressive state?
Deos Trump have the patience to go to war with the bureaucracy to slow down their decree of regulation, nevertheless reverse it?
I suspect not, but maybe Trump and his cabinet will surprise me.
Apparently SPAM I AM! relies upon a "speaking in tongues" dictionary with his:
ReplyDelete"Translation: Obama blew off the Supreme Court."
regarding the UPDATE.
More likely SPAM I AM! is apoplectic with Sandy's discussion of Vermeule's new book.
Absolutely amazing. He hasn't been President for much over 2 hours, and Democrats in D.C. are already campaigning to reelect him.
ReplyDeleteDo they not realize yet that every riot guarantees him more votes in 2020? Is it at all possible that the Democratic party establishment hasn't figured that out yet?
Or have they just drummed up so much hatred and hysteria that they've utterly lost control?
False flag operations.
ReplyDeleteThanks, that made my day. :)
ReplyDelete"Democrats in D.C. are already campaigning to reelect him."
ReplyDeleteDo you mean the DC police, which is comprised of and led by mostly Democrats?
No, I meant of course the rioters. The riots last year were, I think, a significant factor in Trump being elected; The left maybe doesn't appreciate just how much the average person despises rioters.
ReplyDeleteThe DC police might have done a better job at putting down the organized effort to prevent people from attending the inauguration, though. It was, so I understand, moderately successful at keeping people with tickets from reaching the event.
I guess I was confused by your repeated reference to 'Democrats' behind the 'rioting.' While I imagine most of the protesters are not Republicans I'd bet few of them have much connection to any official Democratic Party organization, especially not one as definite as the police force that stands against them does.
ReplyDeleteShag: More likely SPAM I AM! is apoplectic with Sandy's discussion of Vermeule's new book.
ReplyDeleteVermeule's argument the judiciary should abandon the rule of law and defer to the absolute bureaucracy is pretty much standard across all the various isms which make up the flavors of modern totalitarianism.
I am reminded of the film Judgment at Nuremberg trying German jurists who abandoned the rule of law and rubber stamped the Nazi bureaucracy.
https://youtu.be/xGfHkdR3tXs
https://youtu.be/N3BwK51YFgQ
Those who ignore history are doomed to repeat it.
They possibly have cutouts between them and the DNC, I suppose. Nothing the FBI can't penetrate, though, now that the government isn't shielding people who perpetrate left-wing political violence anymore.
ReplyDeleteThe left has had 8 years to do pretty much what it wanted without much fear of legal consequences. I expect that's coming to an end. Plenty of the rioters have been captured. We'll likely find out who organized the riots.
Mr. W: I guess I was confused by your repeated reference to 'Democrats' behind the 'rioting.' While I imagine most of the protesters are not Republicans I'd bet few of them have much connection to any official Democratic Party organization, especially not one as definite as the police force that stands against them does.
ReplyDeleteThe Democrats use front groups like Moveon.org. Planned Parenthood, Greenpeace, SEIU, and AFSCME to hire, organize, and transport professional demonstrators and rioters.
http://www.nbcnewyork.com/news/local/NYC-Donald-Trump-Inauguration-Protests-Rally-Thousands-in-Washington-411168825.html
http://www.fightbacknews.org/2017/1/6/broad-coalition-protest-inauguration-day-minneapolis
It's always worth laughing at Bart's hyperbolic 'absolute bureaucracy' talk (appropriately paired with a Godwin here), but particularly so at the very time when all the heads of the federal bureaucracies are being replaced consequent to one of our regular elections.
ReplyDeleteBart, nothing in your two sources proves an iota of your scurrilous charges. It's good evidence though of the crazy paranoid conspiracy style thinking that permeates the mainstream conservative movement these days.
ReplyDeleteMr. W:
ReplyDeleteThe Amazon summary for Vermeule's book suggests the author admits the bureaucracy is setting the vast majority of government policy; praises past progressive judicial decisions allowing the absolute bureaucracy to determine the scope of its own power to decree law determine its own facts and to freely rewrite the laws of Congress and their own rules at will; and decrying calls for the judiciary to play any role supervising this burgeoning dictatorship.
Trump's change of the guard of the nominal heads of the departments will likely succeed as well at reversing the power of the absolute bureaucracy about as well as those of Reagan and Bush, which is to say not at all.
The bureaucracy routinely outlasts and defeats political appointees by denying them knowledge of the internal operations of the bureaucracy, dispersing responsibility for actions and inaction, and then simply running out the clock until a more pliant political appointee arrives. German sociologist Max Weber discussed how the German bureaucracy used these methods to repeatedly defeat both monarchs and the Reichstag legislature.
SPAM I AM!'s "Hamburger Helper" is unpalatable. SPAM misrepresents Vermeule's argument.
ReplyDeleteShag: misrepresents Vermeule's argument.
ReplyDeleteHow so?
The Legal History Blog has an interesting post today on:
ReplyDelete"Historians' Perspectives on the Rise of Donald J. Trump"
SPAM I AM! warns us, unoriginally:
"Those who ignore history are doomed to repeat it."
I can't think of history that has been ignored and repeated by the 2016 election of Trump. Maybe in due course we'll hear from some of the many historians listed on the link provided at that Blog. There is a link to one article on women "1977-2017."
How so? By being false. Amazon "suggests" is SPAM I AM!'s interpretive bias.
ReplyDeleteShag: I can't think of history that has been ignored and repeated by the 2016 election of Trump.
ReplyDeleteAny number of populist/fascist campaigns across Europe and South America come to mind.
There is little new under the sun - only variations on themes.
How so? By being false. Amazon "suggests" is SPAM I AM!'s interpretive bias.
As usual, you have nothing substantive.
That's silly, the Bush and Reagan administrations had substantively different regulatory approaches than the Obama and Clinton administrations, and this will undoubtedly be true for the Trump one. The federal bureaucracy is hardly absolute. Elections do have consequences.
ReplyDeleteMr. W:
ReplyDeleteElections can speed or slow bureaucratic growth, but have not resulted in substantial reversal of the absolute bureaucracy since the wind down from the New Deal and WWII, which lasted until the late 1960s early 1970s, when the absolute bureaucracy exploded again.
Reagan main accomplishment was slowing the pace of bureaucratic growth. His only major reversals were a partial deregulation of the airlines and a couple other areas.
After failing to reverse a handful of Clinton midnight regulations, Team Bush lost interest in deregulation and the manufacture of regulation picked up significantly again before going into warp drive under Obama.
The bureaucracy's exercise of absolute power (executive, legislative and judicial) has expanded relentlessly no matter who was elected. There is a possibility the GOP could leash some of the bureaucracy's legislative and judicial power if they pass the current version of the REINS Act. However, i believe such a bill would be subject to the filibuster and would likely die in the Senate.
"His only major reversals were a partial deregulation of the airlines and a couple other areas."
ReplyDeleteI'm glad you yourself supplied examples of 'major reversals,' as well as admitting that all that need be done to facilitate many more is for Congress to pass as act. Remember, just because legislative majorities don't want to do wacky things you suggest that in no way proves they cannot. Hence the ridiculousness of the term 'absolute bureaucracy'
SPAM I AM!'s"
ReplyDelete"There is little new under the sun - only variations on themes."
might suggest why he still believes The Gilded Age of the late 19th century were America's best days. Of course he was not even a gleam in anyone's eyes back then. But his mind resides in the past.
BD: "His only major reversals were a partial deregulation of the airlines and a couple other areas."
ReplyDeleteMr. W: I'm glad you yourself supplied examples of 'major reversals,' as well as admitting that all that need be done to facilitate many more is for Congress to pass as act.
The almost complete absence of such acts while Congress continues to delegate enormous powers it does not posses under the Constitution to the bureaucracy demonstrates this is essentially a one way road.
Remember, just because legislative majorities don't want to do wacky things you suggest that in no way proves they cannot.
it only matters what Congress does, not what it can do.
Congress likes avoiding the heavy lifting of actual votes on difficult issues by delegating enormous swaths of its powers to the absolute bureaucracy. Historically, most republics give way to absolute executives for just this reason.
Hence the ridiculousness of the term 'absolute bureaucracy'
You really do not get the difference between the scope of bureaucratic power and the bureaucracy's exercise of all three governmental powers (absolute power), do you?
EPA can be limited to exercising all three governmental powers to directing activities around a single pond near my mountain town and EPA's power would still be absolute.
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ReplyDeleteAnd, btw, bureaucracies *never* exercise all three governmental powers in an 'absolute' fashion. To take just one part, I can't think of one bureaucracy that exercises 'quasi-judicial' activity where the decisions can't be appealed to the regular judiciary, which has the power to overturn. Hence, they are not absolute in any reasonable understanding of the term. The idea that since they rarely overturn the bureaucracies the latter are 'absolute' is risible; it's more reasonable that the bureaucracies are rarely overturned because of several other reasons, i.e., they are experts in the relevant area, deference to agencies instituted by the elected branches, etc.
ReplyDelete"is essentially a one way road"
ReplyDelete"Essentially" is doing a whole lot of work here. Again, just because elected representatives don't do a lot of what you suggest doesn't in any way show that they somehow *can't.* And the fact that they in fact *have* and *can* done exactly what you suggest in specific areas really disproves the idea that they *can't* do it more. They just don't want to. But that's true of lots of things that they could do, but just don't want to do. Congress could declare all kinds of flat earth related resolutions and policies tomorrow if they wanted to, the fact that they don't is no proof of some 'absolute power' of anti-flat earth friendly bureaucracies or lobbies. It's that the idea is considered silly by most voters and/or their representatives.
This comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteMr. W: To take just one part, I can't think of one bureaucracy that exercises 'quasi-judicial' activity where the decisions can't be appealed to the regular judiciary, which has the power to overturn.
ReplyDeleteOverturn what?
At first, the judiciary ceded to the bureaucracy the power to determine facts and limited courts to determining whether the bureaucracy was acting within the Constitution and Congress's enabling statutes.
Then, the judiciary rubber stamped any actions by the judiciary which in some tangential way effected the economy and gutted constitutional protections for contract and property rights.
Finally, the judiciary allowed the bureaucracy to determine the scope of its own power under the enabling statutes, including now apparently rewriting the most express limiting provisions of those statutes.
The right of effective appeal to the courts is almost gone apart from situations where the bureaucracy does not follow its own rules.
Again, just because elected representatives don't do a lot of what you suggest doesn't in any way show that they somehow *can't.* And the fact that they in fact *have* and *can* done exactly what you suggest in specific areas really disproves the idea that they *can't* do it more.
You really don't grasp how far this has gone. Congress has now delegated nearly all of its enumerated powers and a number of powers it does not possess to the bureaucracy, often in terms so broad as to have nearly no limit. The bureaucracy is rewriting the express limits which remain, while the Congress and the courts do nothing.
Sandy gets it:
Vermeule, on the other hand, is arguing that the modern state is primarily an administrative state, where most public policy is in fact made, albeit under often very broad delegation from Congress, by administrative agencies. More to the point is the fact that these agencies have been accorded more and more discretion by the judiciary. What is so fascinating about Vermeule’s thesis—and sure to spark some vigorous debate (though not by me)—is that “law’s abnegation” is not the product of “external” political or social forces that seized control away from formerly powerful courts. Instead, as he puts it, it is a product of a basically common-law process of doctrinal analysis and development.
To sum up, the bureaucracy decrees most of the law and the judiciary has very consciously decided to rubber stamp almost anything the bureaucracy does.
Roman dictators had less absolute power and far less reach.
John Meacham's NYTimes essay "We’ve Been Here Before: Jon Meacham on the Literature of Our Discontent" is worth a read with the benefit of several works of fiction. One book was "A Cool Million" by Nathaniel West, which I read back in the '50s, early '60s. Its lead character Shagpole Whipple, a former president, was a name I did not remember.
ReplyDeleteBy the Bybee [expletives deleted], history does not repeat itself but SPAM I AM! does with his bureaucracy diatribe. The Republican Congress and Executive currently in power could eliminate the bureaucracy. But they won't.
Shag: By the Bybee [expletives deleted], history does not repeat itself but SPAM I AM! does with his bureaucracy diatribe. The Republican Congress and Executive currently in power could eliminate the bureaucracy. But they won't..
ReplyDeleteYou are correct. There is no realistic small "d" democratic remedy left.
As I noted above, the establishments of both parties are fully purchased into the progressive political economy and their contrary statements to the voters about rolling back red tape are lies to get elected. This dishonesty is in large part why the voters gave the establishment the finger and elected Trump.
I have been arguing for some years now that the only remedies left to return our classically liberal republic are a constitutional convention or an armed revolution.
SPAM I AM!' suggests alternatives to cure bureaucracy:
ReplyDelete" ... a constitutional convention or an armed revolution."
There might be a tad of a possibility that the former might lead to the latter. SPAM has lost faith in the elective branches as well as with the judicial branch because the judicial non-elected branch is failing to upset decisions of the elective branches that SPAM finds unpalatable. If WE THE PEOPLE cannot rely upon the elected branches and the unelected branch, SPAM seems to seek chain-sawing the Constitution. SPAM has from time to time referred to himself as an anarcho-libertarian. He has wet dreams of The Gilded Age when the Robber Barons had their (s)way over governments.
BD: I have been arguing for some years now that the only remedies left to return our classically liberal republic are a constitutional convention or an armed revolution.
ReplyDeleteMr. W: There might be a tad of a possibility that the former might lead to the latter..
As I keep reminding my libertarian and conservative friends, there is currently zero chance of a runaway constitutional convention expanding the progressive political economy. A supermajority of states are under GOP government, each state will have equal representation at the convention, and a supermajority of state legislatures or conventions will have to ratify whatever the convention produces. Instead, structurally, it is more than possible for a convention called to say balance the budget to runaway to reverse the progressive state.
In the latter case, I am not worried about the progressive minority launching an armed revolution in response. As I repeatedly noted to Sandy when he called for secession, you progressives are largely disarmed and very few of you have any military experience. The most you will do is hire street punks to riot, burn and loot as during the Trump inauguration yesterday. You try that nonsense outside of a blue city like DC and try to loot and pillage our businesses and property in red neighborhoods, we can and will shoot down your thugs like rabid dogs.
The next set of oral arguments where we would see directly interaction between the new administration and SCOTUS is in late February but briefs and such will be forthcoming before then. See also:
ReplyDeletehttp://electionlawblog.org/?p=90574
Also, we might soon have a new nominee to SCOTUS to fill the slot Republicans illegitimately (on principle if not by clear constitutional rule) blocked.
[SCOTUSBlog as well as the Court itself has a calendar of oral arguments etc.]
ReplyDeleteJoe: Also, we might soon have a new nominee to SCOTUS to fill the slot Republicans illegitimately (on principle if not by clear constitutional rule) blocked.
ReplyDeleteWhat is permitted by the Constitution is by definition legitimate.
The Senate is a co-equal partner in choosing judges just as it is in enacting legislation.
If Obama had nominated any of the excellent judges on Trump's list, the GOP Senate would have approved that judge in record time.