How Democracy Dies

[crazy canuck]

I don't think it is a "mere" mechanism either; I simply suspect that the important issue is the erosion of loyalty to the system. Once that erodes, I don't think any system can long stand, no matter how it is constituted.

I think that you are 100% correct.  In both the US and the UK, what we are seeing is the dismissal of the idea that a party's policies can be rejected by the people, indicating a need to change policies.  Instead, the rejected party sets out to prove that the public hasn't rejected their policies at all, that their policies are in fact correct, and that the public rejection is simply a distortion created by a hostile press.

This is just a belief that there is a "silent majority" in favor of any given set of policies; that one's own policies are, in fact, supported by the majority of the "real citizens" no matter the result of polls or elections.

"Erosion of loyalty"  matters not one jot if the judiciary fulfills its constitutional role.  In the UK the Courts did so by pointing out that Parliament must decide (not a referendum).  And so there is still hope for that country.  Whether the Courts will fulfill their constitutional responsibility in the US is very much an open question.

[grumbler]

I sometimes think the exact legal mechanism of the infolding disaster isn't all that important - the American system, like all systems, ultimately relies on a sufficient number of people having loyalty to the goals of the system. The real issue is understanding how that loyalty is cultivated and how it can be lost.

In the case of America, somehow a sufficient number of people became convinced that the American system doesn't work and set out to wreck it. By wrecking it, they then demonstrate that it doesn't work, leading others to lose loyalty to it in turn (why should 'we' play by the rules if 'they' don't, and get away with it with success?).

Eventually, what had seemed like virtue (abiding by civility and decorum in politics, for example) will just look like naivete, or even deliberate selling out to the 'enemy'.

I don't think this is a mere legal mechanism.  This is a rejection of the American system of government.

You are just repeating his argument, without acknowledging that you are doing so.

You misunderstand.  The Court's ruling that Congress cannot bring suit is not a mere legal technicality.  Even if the Trumpists behave as Malthus states, it should not matter because the Courts are supposed to be there to protect against such things.  If the Courts do not fulfill their constitutional role then that is not a "legal mechanism" by which democracy dies.  It is an abdication of constitutional responsibility.

You misunderstand.  Malthus (and I) are explicitly not arguing that the court's current ruling is a mere legal technicality.  The reason to be worried about this development is because the Republicans have had a campaign for two decades to place in the courts only judges that will defer to Republican political authority and will reject Democratic political authority.  The abdication of constitutional responsibility is the entire point of the exercise.

Now, you can disagree with that assessment, or agree, but you cannot say it is wrong and then propose your own identical assessment as the right one.

[Eddie Teach]

... with thunderous applause.

You made me google this. 

[alfred russel]

I wouldn't underplay mechanics too much.  Institutional mechanisms exert a powerful inertia, especially when executive power is effected by and through a bureaucracy.

Trump's attempt to circumvent the House's authority is one that has caused genuine uneasiness among fellow Republicans.  They have raised the prospect of a President Warren or Sanders (or gasp! Ocasio-Cortez) simply enacting universal health care (or a Green New Deal) by decree.  And rightly so.  If the President can unilaterally spend $10 billion to build a useless wall in response to a fake crisis, surely the President can spend $10 trillion to address a true emergency like global warming or millions of uninsured Americans.  But without a legal mechanism to check this, that unease cannot manifest in a concrete and politically effective way.

The counterargument to this being a crisis:

Congress has authorized defense spending, and there is some discretion in how that is spent. Yes the border crisis is a fake crisis, and yes the wall is a ridiculous solution. The question is whether the courts will be willing to call shenanigans on that, when Trump ran on the border being in crisis, and the wall being a solution (whether the border is in crisis and if so, what should be done is to an extent judgmental and is a current political topic).

It wouldn't be equivalent to a president spending $10 trillion on global warming because $10 trillion hasn't been authorized to be spent.

I think the longer term crisis is that the 18th century method of appropriating spending has been creaking very loudly for some time because there are too many checks in the system. In an increasingly divided country you need a majority in the house, a supermajority in the senate, and the president to pass a bill, and there is increasing concern a more political court will strike down even those bills if you lack a court majority. If the constitutional system makes action too difficult, politicians will proceed at first on the edge and then beyond what it allows.

[Valmy]

Strict interpretation of the Constitution was supposed to be fundamental to conservatism. I mean I get things like laws are no use to the President but surely the conservative judges in the judiciary feel differently.

Can't I count on the conservatives for anything? I have some faith in them. They will not hand the power of the purse over to the executive.

[Valmy]

I think the longer term crisis is that the 18th century method of appropriating spending has been creaking very loudly for some time because there are too many checks in the system. In an increasingly divided country you need a majority in the house, a supermajority in the senate, and the president to pass a bill, and there is increasing concern a more political court will strike down even those bills if you lack a court majority. If the constitutional system makes action too difficult, politicians will proceed at first on the edge and then beyond what it allows.

Yes. This is indeed the problem and what has provoked the Executive to seek ways around the gridlock so it can carry out its policies.

[Grey Fox]

Strict interpretation of the Constitution was supposed to be fundamental to conservatism. I mean I get things like laws are no use to the President but surely the conservative judges in the judiciary feel differently.

Can't I count on the conservatives for anything? I have some faith in them. They will not hand the power of the purse over to the executive.

They will if it delivers the theocracy they now desire.

[Oexmelin]

Strict interpretation of the Constitution was supposed to be fundamental to conservatism. I mean I get things like laws are no use to the President but surely the conservative judges in the judiciary feel differently.

Can't I count on the conservatives for anything? I have some faith in them. They will not hand the power of the purse over to the executive.

You shouldn't.  Because this Constitutional crisis takes on the guise of strict legalism, i.e., if there are no rules, it is allowed.  Meanwhile, bent rules, rules emptied of their actual object and meaning, will remain rules, and ergo, you will find enough conservatives for whom superficial respect for rules, not to mention the fact that it sticks it to their enemies, will trump respect for the Spirit of the Laws.

Seriously, you all can mock me about my involvement with the DSA, but this ought to be a good time to get involved in direct democracy for all of you. Especially if you self identify as a Conservative, and are worried about current developments. Show up for meetings and town halls, challenge incumbents whose respect for institutions is weak, or lacking. You are all articulated, not to mention opinionated, and politicized. Don't wait it out on the sidelines. It's not going to get better without you.

[Malthus]

You misunderstand.  Malthus (and I) are explicitly not arguing that the court's current ruling is a mere legal technicality.  The reason to be worried about this development is because the Republicans have had a campaign for two decades to place in the courts only judges that will defer to Republican political authority and will reject Democratic political authority.  The abdication of constitutional responsibility is the entire point of the exercise.

Now, you can disagree with that assessment, or agree, but you cannot say it is wrong and then propose your own identical assessment as the right one.

I guess my follow up question is this: why is it that in (say) Canada the government of the day, Liberal or Conservative, doesn't "stack" the courts with judges guaranteed to toe the party line?

This paper suggests that is indeed the case: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1013560

In short - what keeps politicians here loyal to the notion that such appointments should go to people for reasons other than party advantage, even though the PM has considerable power to appoint judges? What keeps judges, once appointed, from becoming (or staying) as party shills?

I don't actually know, but I suspect the answer is important.

[The Minsky Moment]

The counterargument to this being a crisis:

Congress has authorized defense spending, and there is some discretion in how that is spent. Yes the border crisis is a fake crisis, and yes the wall is a ridiculous solution. The question is whether the courts will be willing to call shenanigans on that, when Trump ran on the border being in crisis, and the wall being a solution (whether the border is in crisis and if so, what should be done is to an extent judgmental and is a current political topic).

You would have a point IF the district court had ruled that emergency powers had been invoked under statutory authority, addressed the merits of the question whether the wall was a legitimate military construction as contemplated by Congress and ruled for Trump on the merits.  That would just be a single dumb court decision and the republic can (and has) withstood thousands of those.

The problem is that the Court refused to reach the merits because it ruled the House doesn't have the right to be heard at all in Court on the issue.  Since the Supreme Court recently indicated it believes private parties also can't sue to enforce the spending power, that would mean there is no viable enforcement mechanism at all.  There would be no institutional mechanism in place to check untrammeled Presidential power other than a sense of decency and public opinion.  Malthus and grumbler's point addresses the shortcoming of the latter as a useful check and the entire Trump presidency addresses the limitations of the former.

[The Minsky Moment]

Strict interpretation of the Constitution was supposed to be fundamental to conservatism.

Correct but conservatism is now a fringe movement in American politics.  Trumpism has put it on terminal life support.

[frunk]

The counterargument to this being a crisis:

Congress has authorized defense spending, and there is some discretion in how that is spent. Yes the border crisis is a fake crisis, and yes the wall is a ridiculous solution. The question is whether the courts will be willing to call shenanigans on that, when Trump ran on the border being in crisis, and the wall being a solution (whether the border is in crisis and if so, what should be done is to an extent judgmental and is a current political topic).

It wouldn't be equivalent to a president spending $10 trillion on global warming because $10 trillion hasn't been authorized to be spent.

I think the longer term crisis is that the 18th century method of appropriating spending has been creaking very loudly for some time because there are too many checks in the system. In an increasingly divided country you need a majority in the house, a supermajority in the senate, and the president to pass a bill, and there is increasing concern a more political court will strike down even those bills if you lack a court majority. If the constitutional system makes action too difficult, politicians will proceed at first on the edge and then beyond what it allows.

If the suit was dismissed on merit then I think you would have a point.  It certainly could be argued that building a wall falls under defense and is a reasonable use of defense spending.  It was dismissed for standing, which means it wouldn't matter if the President wanted to spend the money on building Trump hotels Congress couldn't resort to the courts as a remedy.  I guess to get their time in court they'd have to pass a specific law saying that federal money can't be spent in that specific way (and Trump would have to sign it or get overridden), which gets down into rabbit holes way worse than what we are in now.

[The Minsky Moment]

BTW unrelated but fun originalist constitutional parlor game:

1) Locate the place in the US constitution where the US government is given power to control immigration (i.e. as opposed to naturalization)
2) Enumerate the federal immigration restrictions put into place by the First US Congress and all other such restrictions enacted over the next century.
3) What is the accepted source of federal power to regulate immigration today?  What constitutional clause is it associated with, if any?

[alfred russel]

You would have a point IF the district court had ruled that emergency powers had been invoked under statutory authority, addressed the merits of the question whether the wall was a legitimate military construction as contemplated by Congress and ruled for Trump on the merits.  That would just be a single dumb court decision and the republic can (and has) withstood thousands of those.

The problem is that the Court refused to reach the merits because it ruled the House doesn't have the right to be heard at all in Court on the issue.  Since the Supreme Court recently indicated it believes private parties also can't sue to enforce the spending power, that would mean there is no viable enforcement mechanism at all.  There would be no institutional mechanism in place to check untrammeled Presidential power other than a sense of decency and public opinion.  Malthus and grumbler's point addresses the shortcoming of the latter as a useful check and the entire Trump presidency addresses the limitations of the former.

That makes no sense. I'd expect that would get overturned.

[The Minsky Moment]

The Supreme Court's standing jurisprudence is a bit of a mess.  I would think it would be overturned but can't really be sure.