How Democracy Dies

[Admiral Yi]

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.

Congress could change the law granting the president that particular emergency power.

[The Minsky Moment]

Congress could change the law granting the president that particular emergency power.

In theory Congress could eliminate the power entirely but it still wouldn't be able to enforce the limitation.  The President could just declare innate Article II emergency powers and the House still wouldn't have the standing to sue to restrain his expenditure of money on unauthorized projects. That isn't a speculative assumption BTW - Trump has declared publicly he believes that his Article II powers are unlimited.

In any event, the Senate as currently constituted as the Moscow Mitch Chamber isn't going to change any laws. The power to initiate money bills however, is exclusive to the House, and thus its enforcement should not turn on whether the Senate is cooperative or not.

[grumbler]

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.

My belief is that Canadian politicians and parties still generally hew to the idea of the loyal opposition; that, if they aren't in the majority at the moment, their job is to serve the public interest and prepare to govern if/when the opportunity arises.  I suspect that many of them consider it a badge of honor to accept defeat gracefully.  Obviously, if judicial appointments become politicized, that's a double-edged sword, because, if one party does it, then the others will have to, out of self-defense, and everyone will see their "justice" reduced to the random draw of the judge.

In the US and the UK, it seems that the response to defeat is to sabotage the polity and hope the winning side gets the blame.

[crazy canuck]

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.

There was a recent attempt at selecting judges to meet policy objectives under our former Justice Minister where a large number of fully vetted and qualified appointments to the s.96 courts were not appointed.  But those efforts were thwarted because our system of appointment is depoliticized by and appointment process through the judicial council.  And memory serves the latest amendments to that process post date the article you linked.

And so there is a comforting thought that even if there is a decaying of commitment you have identified in the US, it would have to be so wide spread here that the decay has to get to the core to make a difference in our system.

My belief is that Canadian politicians and parties still generally hew to the idea of the loyal opposition; that, if they aren't in the majority at the moment, their job is to serve the public interest and prepare to govern if/when the opportunity arises.  I suspect that many of them consider it a badge of honor to accept defeat gracefully.  Obviously, if judicial appointments become politicized, that's a double-edged sword, because, if one party does it, then the others will have to, out of self-defense, and everyone will see their "justice" reduced to the random draw of the judge.

In the US and the UK, it seems that the response to defeat is to sabotage the polity and hope the winning side gets the blame.

Quaint view entirely inaccurate but more importantly misunderstands the process of how our judges are vetted and appointed.  Parliamentary politics is blood sport both amongst the parties and within them.  If we left appointment decisions to the politicians we would have the same problems as the US.

[merithyn]

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.

I blame Trump for a lot, but in this case, that fringe movement has been going on for a lot longer than he's even considered running for President, much less been President.

[mongers]

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.

Thanks Oxy, that's a good challenge all of us here should give some consideration to.

[Agelastus]

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.

Although not an American, a lawyer, or someone who normally participates in these discussions I would like to chip in here (as I was browsing recent Supreme Court decisions yesterday afternoon instead of working ) -

The Supreme Court recently threw out "Virginia House of Delegates vs. Bethune Hill" as the House of Delegates lacked standing; partly because Virginia's state law gives the authority for redistricting to the General Assembly, of which the House of Delegates is only part.

The Origination clause seems pretty straightforward in that all revenue bills must start in the House of Representatives but that the Senate may propose or concur with any amendments it chooses. So the two Houses share responsibility for how money is raised and, more importantly for this case, spent even if the original bill must originate in the lower House.

Trump is, I believe, using emergency powers to redirect the use of existing monies, which is a matter for both Houses, not raising new monies which is a matter (initially) for the House of Representatives. Would not the entity with Standing in this case be the whole of Congress, ie. the corporate identity of both Houses, rather than the House of Representatives alone?

This would seem to agree with recent Jurisprudence in the Court concerning both Virginia and Arizona's state governments.

[The Minsky Moment]

Agelastus - Bethune Hill, as you noted, involved redistricting.  The issue was not a conflict between the legislative and executive branches of state government. It was between private plaintiffs challenging the districting plan on constitutional grounds and the State. Virginia law specifically provides the Virginia AG has exclusive authority to act on behalf of the state with respect to such litigation.

The case does, however, state the principle that "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole."  The question would then be whether the expenditure of funds for a purpose other than that for which the funds were appropriated implicates the House's Article I spending authority.  The District Court for DC responded to this question in 2015 in a case brought by the GOP-controlled House challenging certain reimbursements to insurance companies under Obamacare.  The constitution prohibits the President from spending money without a valid appropriation under law, and the House must initiate any valid appropriation.  Put those two provisions together and the House has standing to sue when there is an expenditure they haven't authorized. There is no dispute that the House didn't authorize expenditure of funds on the wall.

McFadden, however, brushed aside the 2015 case on spurious grounds. 

You are right though that the Bethune Hill decision, and the Supreme Court's messy standing jurisprudence generally, raises real concerns over how they would rule on this issue. 

[Razgovory]

Congress could change the law granting the president that particular emergency power.

In theory Congress could eliminate the power entirely but it still wouldn't be able to enforce the limitation.  The President could just declare innate Article II emergency powers and the House still wouldn't have the standing to sue to restrain his expenditure of money on unauthorized projects. That isn't a speculative assumption BTW - Trump has declared publicly he believes that his Article II powers are unlimited.

In any event, the Senate as currently constituted as the Moscow Mitch Chamber isn't going to change any laws. The power to initiate money bills however, is exclusive to the House, and thus its enforcement should not turn on whether the Senate is cooperative or not.

Just imagine if Trump was someone with ambition.

[Admiral Yi]

After reading through Article II, I don't know what you're talking about Joan.

And to clarify, the ruling you object to says that in no case does the House have standing to challenge the president's emergency powers?

[derspiess]

It's out of concern for others. I imagine such considerations do not rank very high amongst your fellow grand wizards.

I'm applauding you, but with jazz hands 😀

[The Minsky Moment]

Article II is the Presidential powers clause.

Article I section 9  clause 7 states that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law"
An appropriation by law requires assent of both houses.  In addition, a money bill (raising revenue) must be initiated in the House (Section 7, clause 1).

In U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2015), the court considering the House's challenge to allocation of reimbursement funds under Obamacare, held:

The Court concludes that the House of Representatives has alleged an injury in fact under its Non–Appropriation Theory—that is, an invasion of a legally protected interest that is concrete and particularized. Article I could not be more clear: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...." U.S. Const. art. I, § 9, cl. 7. Neither the President nor his officers can authorize appropriations; the assent of the House of Representatives is required before any public monies are spent. Congress's power of the purse is the ultimate check on the otherwise unbounded power of the Executive. . .  Disregard for that reservation works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution. The House has standing to redress that injury in federal court.

The Trump wall case is the same challenge - only the partisan identification of the House and the President is switched.  Judge McFadden's full opinion in here: https://assets.documentcloud.org/documents/6128249/House-v-Mnuchin-opinion.pdf

He hold that the House can sue to enforce its investigatory powers (subpoenas, etc) but not the Appropriations Power.  he addresses the prior Burwell decision, says it is non-precedential and refuses to follow it.

[Admiral Yi]

In theory Congress could eliminate the power entirely but it still wouldn't be able to enforce the limitation.  The President could just declare innate Article II emergency powers and the House still wouldn't have the standing to sue to restrain his expenditure of money on unauthorized projects. That isn't a speculative assumption BTW - Trump has declared publicly he believes that his Article II powers are unlimited.

I was referencing this post.

[The Minsky Moment]

Oh - you're right, there is nothing in the text of Article II that gives the President the power to do that. But this President has never read that text and never will.

[Admiral Yi]

I read (most) of that ruling you linked.  I don't claim to understand everything that the judge wrote, but it seems to me the crux of the argument is the distinction between "constitutional" and "statutory" harm.  He seemed to be implying (please correct anything I get wrong) that the House does have standing in the latter, but not the former.

Doesn't it stand to reason that if Donald started declaring non-existent states of emergency to justify grabbing Food Stamp money to pay for spray tans and combovers that would be the statutory variety?