Brexit and the waning days of the United Kingdom

[Valmy]

Brown v. Board was frankly unnecessary. The Federal government has a pretty powerful tool--that of distributing money, but it has frankly never been willing to go nuclear with it. Sure, sometimes they'll pass laws saying if you don't raise the drinking age to 21, we'll withhold 10% of your highway dollars (this was the actual club used in this scenario.) Or we'll dock you some Medicaid dollars if you don't do this or that. But there's no reason the Federal government couldn't block most Federal dollars that go to a state, close all the military bases, close all the Federal office buildings. If you think Mississippi and Alabama were shit holes now, or in 1960 ( and they were) wait until we send them back to the Reconstruction era by waging outright economic warfare on them.

The Supreme Court wasn't necessary to end Jim Crow in the South, just a strong Federal government willing to set the South ablaze--akin to Lincoln and gang 100 years prior.

Well of course. If the Feds had stayed the course in reconstruction it would not have been necessary. But even so without judicial review I don't see how the Bill of Rights is anything but a piece of paper. Or at most a list of suggestions.

[Admiral Yi]

The other is a much lesser known method (it was used in the 19th century), and that is by statute redefining the appellate jurisdiction of the Supreme Court. Under the constitution, only the 'original jurisdiction' of SCOTUS is immutable. It's entirely possible that Congress could pass some law, that is ultimately struck down on appeal by the SCOTUS. Congress then passes another law, saying that area of jurisprudence is no longer part of the SCOTUS appellate jurisdiction. They then essentially pass again the same law, when it works its way through the appellate process this time around, the SCOTUS only real option is to note they cannot rule on it, and do nothing. But for whatever reason, even though I think we did in fact have political control over the appellate jurisdiction of the court for just reasons like this (to avoid too much power accumulating in the SCOTUS), the political reality is stripping the court of appellate jurisdiction is essentially not even on the table, ever.

I'm having a very difficult time imagining Congress having the ability to opt out of Constitutional restrictions on its own powers just because it says so.

[Zanza]

Germany and France are frankly shitbag dancing partners. Germany is one of the biggest contributors to economic malaise in Europe with their ascribing to an economic school of thought that has no support by economists anywhere but Germany and that have pushed nearly a decade now of low-growth austerity policies on the continent. Germany is also usually terrible at being a firm partner in international sanctions against horrific/bad regimes we in the West need to take a stand against (Saddam's Iraq, Iran, Putin etc.)

You have to dance with those on the dancefloor though...
https://hbr.org/2016/06/the-u-s-special-relationship-is-with-germany-not-britain
http://www.politico.com/story/2016/06/germany-brexit-relationship-225000
https://next.ft.com/content/0c71dc88-3b8b-11e6-9f2c-36b487ebd80a

[Agelastus]

But Schengen and the CTA are about borders. If we end free movement we can't negotiate separate free movement with Ireland which would render the CTA redundant.

On the Northern Irish border -

https://fullfact.org/europe/eu-referendum-and-irish-border/

http://www.publications.parliament.uk/pa/cm201617/cmselect/cmniaf/48/48.pdf

We have bilateral treaties with many countries both inside and outside the EU (see the treaty with France that sets our border controls at Calais, for example.) Unless Ireland chooses to join Schengen I don't see why we should have a problem with the Irish border unless we make one ourselves.

As for the article by Stephen Bush, it reads as if it's written by a man desperate to pretend he's an insider by peddling whatever tosh he can. Who is he that I should take him seriously when what he writes is so at odds with our other sources of information?

[Sheilbh]

He's reporter for the New Statesman (and a sort-of acquaintance). First to call Corbyn victory and tipped for Newsnight post soon. In my view he's very good, especially on Labour. Gets a lot of abuse on Twitter for being 'Blairite scum'

My point is we can't negotiate free movement with Ireland singularly anymore than we can negotiate a single market with them alone. If we cease to have free movement with Ireland (while Ireland has free movement with the other remaining 26 member states) it's difficult to see how an open border is sustainable.

[Zanza]

Why shouldn't you have open borders with them without free movement? Britons would almost certainly get 90 days of visa-free access to the EU (just like Americans or so), so why not have an open border? There is fairly little potential for abuse.

[Agelastus]

He's reporter for the New Statesman (and a sort-of acquaintance). First to call Corbyn victory and tipped for Newsnight post soon. In my view he's very good, especially on Labour. Gets a lot of abuse on Twitter for being 'Blairite scum'

My point is we can't negotiate free movement with Ireland singularly anymore than we can negotiate a single market with them alone. If we cease to have free movement with Ireland (while Ireland has free movement with the other remaining 26 member states) it's difficult to see how an open border is sustainable.

There's a difference between a universal free market agreement and an agreement not to need visas etc. for specific countries.

I repeat, as long as Ireland maintains its' own borders I don't see a threat to the free movement of Irish citizens. The free movement of goods, of course, is a different kettle of fish. I consider it a mistake to conflate the two.

[grumbler]

If the EU is going to act all shitty you might as well hold it as a bargaining chip.

Poisoning the well before negotiations even begin is the very definition of acting all shitty.  It's not an EU politician that is doing that.

[Sheilbh]

As ever, Tim Garton-Ash is great:

If you think Britain is angry and divided, look at the continent
Timothy Garton Ash
Now is not the time for knee-jerk responses to the Brexit vote. Better to watch the shifting jigsaw and make the right move
Friday 1 July 2016 06.30 BST Last modified on Friday 1 July 2016 17.56 BST

Brexit is a nightmare from which we are trying to awake. What a weird week this has been. On trips to the Netherlands and Portugal, where I am now, continental friends hug me as if there has been a tragic death in the family. A longtime Serbian friend says, "Now you know what it felt like to be us, explaining that not all Serbs think that way ... "

Nothing has changed and everything has changed. I still go through the EU passport-holders' queue. But when I stand next to a Scottish family in the airport bus, I find myself thinking: some day soon they might be foreigners, citizens of a small independent country inside the European Union, like Slovakia or Slovenia. But England, my England, where will you be?

Briefly back in London, I'm stopped in Oxford Circus tube station by a complete stranger who says he liked my last Guardian article and he's on his way to a demonstration for Britain to remain in the EU. He just heard about it on Facebook. I follow his lead and catch a glimpse of something almost unheard of in England: a passionate pro-EU demonstration. Finally, when it may already be too late, people have discovered how much they value what the EU has done for them.

"Lithuania, my fatherland, thou art like health," begins one of the most famous Polish poems. "How much we should value you, he alone knows, who has lost you." Substitute the word Europe for Lithuania, and you have the feelings of half of Britain today.

Children and parents shed tears. Family history is revisited as other citizenships are contemplated: French, Polish, Irish. Group emails fly around, charged with dismay, fury at that cynical narcissistic opportunist Boris Johnson, and desperate proposals. Can't there be a legal challenge to the referendum result? What about the second referendum for which a petition has collected more than 4 million signatures? Can't our sovereign parliament block the beginning of article 50 withdrawal proceedings by a vote? After all, the referendum was won in the name of bringing back parliamentary sovereignty.

I can't remember a time when there was so much anger so close to the surface in British life. The leave vote was itself fuelled by the anger of all those in England and Wales who felt left behind, losing out, ignored. Now the anger is surging, like an adrenaline rush, through those who voted for remain. The generation of my sons cries: how dare you rob us of our future?

But if Britain is dismayed, angry and divided, so is the rest of the EU. Broadly speaking, there are two positions among our European partners. A minority position, articulated by commission president Jean-Claude Juncker, French president François Hollande and Belgian prime minister Charles Michel, says, in effect, "Goodbye and good riddance. The British people have spoken. The UK should leave as soon as possible and let us move ahead to build Europe around its original Carolingian core." In Michel's own words: "Only the Belgian and European interests count for me now – not the British ones. There is no way back."

At a meeting of the European Council on Foreign Relations in The Hague, I experienced at first hand the anger this neo-Carolingian gambit provoked from many other member states, including most eastern and northern European ones. The former Finnish prime minister Alexander Stubb fiercely criticised a meeting of the six founding member states, hastily called as a response to the Brexit vote. Estonia's gloriously outspoken president Toomas Ilves calls Juncker's behaviour "abominable". Finland and Estonia belong to the majority of EU member states, led by Angela Merkel, who want to give Britain some time to try to sort this out.

Broadly speaking, they believe that the strategic objective must be to keep as much as possible of the United Kingdom – or will it be the Former United Kingdom (FUK), like the Former Yugoslavia? – as closely associated as possible with the European Union. This is not only because they value what Britain has to offer, from free-market economics to foreign and security policy, but also because they fear the domino effect of a British withdrawal. At the same time, and precisely to avoid that domino effect, they insist that Britain cannot be offered any special favours in the negotiations, for that would encourage Frexiteers such as Marine Le Pen and Nexiteers such as Geert Wilders to try their luck. So: no access to the single market without free movement of people.

Yet their anger is also directed at Britain and, more specifically, at England. The most devastating comment comes from the Dutch prime minister, Mark Rutte, a great Anglophile and erstwhile ally of David Cameron. "England," he says, "has collapsed politically, monetarily, constitutionally and economically." Ouch. The reproach of disappointed friends is more painful than the schadenfreude of gloating Belgians.

So what should Bremainers on both sides of the Channel do now? I would counsel against any hasty actions from either side. If we on the remain side of the British argument had won this referendum, we would expect the Brexiteers to respect the result. We can't just say: we lost, so retrospectively change the rules of the game. (Then England's soccer team would beat Iceland after all.) There would be a justified outcry. But in time, the negative consequences of this decision will become clear. I suspect even a general election this autumn, to confirm as prime minister the new leader of the Conservative party, would be too soon for buyer's remorse to have worked its way through. Apart from anything else, the new leader that Labour badly needs would scarcely be in place.

So many large pieces of the British-European moving jigsaw are in motion; above all, Scotland. Back in 2014, when Scotland was proposing to secede from the UK and rejoin the EU, Spain feared the encouragement this would give to separatist Catalonia, and European lawyers insisted it must be a new application. But talking to European politicians and experts here, it becomes clear that Scotland seeking to remain in the EU as, in effect, a successor state to the UK, might be treated very differently. Much as I don't want Scotland to separate from England, I don't see why the Scots should be taken out of the EU against their will. And what about Ireland? And a rethinking of the European project across the continent?

No major new alignment can be expected until after the French and German elections next year. By 2018, the likely result of an article 50 exit negotiation, Scotland's intentions and any changes that may be made on the continent will all be clearer – and a new Labour leader should be firmly in the saddle. That is likely to be a better moment to ask the British people if they really want to commit this act of self-harm. Or maybe the right moment will come a little sooner, or later.

The strategic goal is clear: to keep as much as possible of our disunited kingdom as fully engaged as possible in the affairs of our continent. But sometimes in politics it is wisest to watch and wait, playing for time and keeping your options open. This is such a time.

[CountDeMoney]

Germany and France are frankly shitbag dancing partners. Germany is one of the biggest contributors to economic malaise in Europe with their ascribing to an economic school of thought that has no support by economists anywhere but Germany and that have pushed nearly a decade now of low-growth austerity policies on the continent. Germany is also usually terrible at being a firm partner in international sanctions against horrific/bad regimes we in the West need to take a stand against (Saddam's Iraq, Iran, Putin etc.)

You have to dance with those on the dancefloor though...

No kidding.  Germany is economically relevant, and France makes themselves internationally relevant.
The UK is neither.

[dps]

Brown v. Board was frankly unnecessary. The Federal government has a pretty powerful tool--that of distributing money, but it has frankly never been willing to go nuclear with it.

I don't have the numbers offhand, but direct transfers of funds from the Federal government in 1954 were almost nothing compared to now, even adjusted for inflation.

[garbon]

I thought that was Otto's point though. We had a good dancing partner but now she has gone and ripped up her dance card.

[OttoVonBismarck]

The other is a much lesser known method (it was used in the 19th century), and that is by statute redefining the appellate jurisdiction of the Supreme Court. Under the constitution, only the 'original jurisdiction' of SCOTUS is immutable. It's entirely possible that Congress could pass some law, that is ultimately struck down on appeal by the SCOTUS. Congress then passes another law, saying that area of jurisprudence is no longer part of the SCOTUS appellate jurisdiction. They then essentially pass again the same law, when it works its way through the appellate process this time around, the SCOTUS only real option is to note they cannot rule on it, and do nothing. But for whatever reason, even though I think we did in fact have political control over the appellate jurisdiction of the court for just reasons like this (to avoid too much power accumulating in the SCOTUS), the political reality is stripping the court of appellate jurisdiction is essentially not even on the table, ever.

I'm having a very difficult time imagining Congress having the ability to opt out of Constitutional restrictions on its own powers just because it says so.

You don't have to imagine it, since it's in the constitution for you to read about link.

[LaCroix]

congress's conditional spending power can't go too far. if pressure turns into compulsion = no.

straight from my bar study notes (edit - what this means is stripping some federal cash for highways is OK, but stripping a state of all fed cash is clearly unconstitutional)

re: redefining appellate jd, otto's link suggests various ways SCOTUS could get out of that one.

[dps]

congress's conditional spending power can't go too far. if pressure turns into compulsion = no.

straight from my bar study notes (edit - what this means is stripping some federal cash for highways is OK, but stripping a state of all fed cash is clearly unconstitutional)

How can that be correct?  There's nothing in the Constitution that requires the Federal government to give any funding to the states (and, to the best of my knowledge, for a long time the Feds didn't do so).