For
all the gnashing of teeth over the lack of comity and civility in Washington,
the real problem is not etiquette but the breakdown of political norms,
legislative and constitutional.
Such as the one just spectacularly
blown up in the Senate. To get three judges onto a coveted circuit court, frustrated Democrats abolished the filibuster for executive appointments and (non-Supreme Court) judicial
nominations.
The problem is not the change
itself. It’s fine that a president staffing his administration should need 51
votes rather than 60. Doing so for judicial appointments, which are for life,
is a bit dicier. Nonetheless, for about 200 years the filibuster was nearly
unknown in blocking judicial nominees. So we are really just returning to an
earlier norm.
The violence to political norms here
consisted in how that change was executed. By brute force — a near party-line vote of 52 to 48 . This was a disgraceful violation of more than two
centuries of precedent. If a bare majority can change the fundamental rules
that govern an institution, then there are no rules. Senate rules today are whatever the majority decides they
are that morning.
What distinguishes an institution
from a flash mob is that its rules endure. They can be changed, of course. But
only by significant supermajorities. That’s why constitutional changes require two-thirds of
both houses plus three-quarters of the states. If we could make constitutional
changes by majority vote, there would be no Constitution.
As of today, the Senate effectively
has no rules. Congratulations, Harry Reid. Finally, something you will be
remembered for.
Barack Obama may be remembered for
something similar. His violation of the proper limits of executive power has
become breathtaking. It’s not just making recess appointments when the Senate is in session. It’s not just unilaterally imposing a law Congress had
refused to pass — the Dream Act — by brazenly suspending large sections of the immigration laws.
We’ve now reached a point where a
flailing president, desperate to deflect the opprobrium heaped upon him for the
false promise
that you could keep your health plan if you wanted to, calls a hasty news conference urging both insurers and the states to reinstate millions of
such plans.
Except that he is asking them to
break the law. His own law. Under Obamacare, no insurer may issue a policy
after 2013 that does not meet the law’s minimum coverage requirements. These
plans were canceled because they do not.
The law remains unchanged. The
regulations governing that law remain unchanged. Nothing is changed except for
a president proposing to unilaterally change his own law from the White House
press room.
That’s banana republic stuff, except
that there the dictator proclaims from the presidential balcony.
Remember how for months Democrats
denounced Republicans for daring to vote to defund or postpone Obamacare?
Saboteurs! Terrorists! How dare you alter “the law of the land.”
This was nonsense from the
beginning. Every law is subject to revision and abolition if the people think
it turned out to be a bad idea. Even constitutional amendments can be repealed
— and have been (see Prohibition).
After indignant denunciation of
Republicans for trying to amend “the law of the land” constitutionally (i.e. in
Congress assembled), Democrats turn utterly silent when the president lawlessly
tries to do so by executive fiat.
Nor is this the first time. The president wakes up one day and decides to unilaterally suspend the employer mandate, a naked invasion of Congress’s exclusive legislative
prerogative, enshrined in Article I. Not a word from the Democrats. Nor now
regarding the blatant usurpation of trying to restore canceled policies that
violate explicit Obamacare coverage requirements.
And worse. When Congress tried to
make Obama’s “fix” legal — i.e., through legislation — he opposed it. He even said he would veto it. Imagine: vetoing the very bill that would legally enact
his own illegal fix.
At rallies, Obama routinely says he
has important things to do and he’s not going to wait for Congress. Well, amending a statute after it’s been duly enacted is
something a president may not do without Congress. It’s a gross violation of
his Article II duty to take care that the laws be faithfully executed.
A Senate with no rules. A president
without boundaries. One day, when a few bottled-up judicial nominees and a
malfunctioning health-care Web site are barely a memory, we will still be
dealing with the toxic residue of this outbreak of authoritative lawlessness.
Poster's comments:
I have some extra thoughts on this article:
1) I think past
Congresses gave past Executives the authority to do what the present Executive
is craftily doing.
2) Many of the
members of both Houses of Congress who did so in the past no longer serve in
the present Congress.
3) So corrective
action, if the voters choose to do so, needs to begin taking place in the
voting booth where the vote can count. Not all the "guilty" parties
will be voted on because they are already gone or leaving. So be it.
4) Civics' education
teaches that while one USA Congress and Executive may pass a law, subsequent
Congresses and Executives are not obligated to fund it. This is seldom discussed these days.
5) I fault the
Congress and the voters as well as the present Executive for the mess we are
in.
6) Certain members of
the present Executive and the Congress seem worthy of traditional impeachment
action, also. They took an oath they
seem to be routinely violating in so many ways. They are always accountable,
one way or the other.
7) The new world USA
is oozing with superior citizen-politicians with "moral track records"
who deserve to be voted in and promoted up to positions of increasing
responsibility and accountability as they represent us. And it is to the voters
advantage, the people if you will, to do
so.
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