US Politics: 50 shades of Scalia

[Veloknight]

1 hour ago, Swordfish said:

What sort of modifications do you think are most required?

Well, there are a couple of categories. I'll ignore the changes that I personally want and think are due*, but which aren't related to the functioning of the government (such as a repeal or revision of the 2nd amendment, or to strengthen campaign-finance laws), and just focus on governmental structure issues.

When we focus on government function, we find a lot of little problems that have come to light recently in controversies over things like the debt ceiling and now Garland's confirmation, which all stem from a common structural flaw: there's no way for either branch to legally trump the other. They're co-equal and separate by design, but there is no mechanism ensuring they are co-operative as well, and this creates very serious risks to the wellbeing of the people and the Republic. In fact, I'm pretty sure that presidential republics don't have a great worldwide track record overall, and that bad record is at least partially attributable to this division problem.

I can think of a few ways to fix this. One is by directly strengthening either Congress or the Presidency, making it more clearly the first among equals. This might get messy, because you'd want to specifically enumerate the new powers or responsibilities - so an amendment, or article in an amendment, saying that Congress is assumed to consent to appointments unless it acts within a certain time; and another such amendment or article clarifying that line about the President "ensur[ing] the full faith and credit of the United States". I don't even really care which branch gets the power, but I do think that Congress should be required to acknowledge that the national debt is ultimately a result of budgets they themselves pass, and should have to offer some kind of concrete solution. We could invert this process, by instead taking it entirely out of the hands of the executive, but I think that would be a very awkward arrangement - people tend to naturally look to a singular executive for leadership, and neutering the Presidency could make the "leader" into even more of a scapegoat than it is now.

Another way to fix the problem is to restructure the republic, which would probably make this the most significant reform of the system yet. We could get rid of fixed terms for legislators, for example, instead setting a maximum interval between elections and making things like budgets into confidence votes. Separation of powers is a much smaller issue when at least one branch is no longer given a fixed minimum tenure, because a crisis will trigger a no-confidence vote, and we get to "let the people decide" immediately, and not 1-2 years later.

We also could try abolishing the Presidency entirely and going with a full-on parliamentary republic ruled by the Speaker, or perhaps by a President and Cabinet elected directly by Congress. I personally don't think this one is necessary, but for the "screw it, let's start over" folks, this might be an interesting option. It's worth noting that I'm a big fan of the President, and don't know how my preferred political party would fare in this type of scheme - I'd definitely spend a lot of time pushing states to award their House seats proportionally in this particular world - but it might be healthier for the republic itself.

So those are my three different approaches to the issue: strengthen the Presidency slightly, make the legislature (and maybe executive) subject to confidence votes and non-fixed-length terms, or merge the branches entirely. Either way, we can have the level of separation of powers we think best, while making clearer the responsibilities of each branch, and making them more accountable so nobody has an incentive to play chicken with our future.

I see the fewest problems with the judiciary itself, honestly, though I'd probably add a line explicitly validating judicial review, if only to end that eternally obnoxious line of rhetoric. I might make it easier to amend the Constitution in the future, which would have the side effect of making it easier for the political organs to correct truly egregious court decisions, without making it regular enough to render the judiciary meaningless.

 

*they're in my next post!

[Shryke]

I would throw in fixed election dates as a major issue for the US as well personally as they create no way to deal with a non-functioning government other then just waiting it out.

Like, if the Democrats seized control of both houses of Congress in november this year and decided to literally do nothing at all, there is no way to deal with that till 2018.

[Veloknight]

Building off of my earlier post about structural issues, there's also just a lot of modernizing to do in the document, which is understandable due to the age of the system. Beyond that, there are things the Founders may have considered, but chose to punt on.

Things we could clarify:

• Do states have a right to secede, ever? If so, what process should be used? Scotland almost left the U.K. with a simple majority vote in a referendum - if we believe the people have a right to self-determination, shouldn't we have clear procedures for independence?
• What powers to Congress have to broadly regulate and subsidize the economy? I'd also love to see this made clearer - I don't mind the court interjecting, but a more explicit restatement along Necessary and Proper and Interstate Commerce lines might settle a lot of longstanding disputes about the power of the federal government. Ideally, we can resolve the seeming tension with the 10th Amendment's reserving power to the states and people.
• How, exactly, can constitutional conventions be invoked? The only way we could get these amendments is via some miraculous moment of consensus (or a temporary landslide that makes an amendment push possible), but sooner or later we could be back here again. If there is another way to amend the document, what are the precise steps necessary, so that the legitimacy of the process is accepted by all?
• What congressional rights should possessions of the United States have? Perhaps some sort of catchall quasi-state district can be created, giving all areas under U.S. jurisdiction at least some representation in government.
• DC should get voting representation in Congress equal to a state of the same size, or else be entitled to vote as if it was a district of Maryland. (This would lose them 2 senators, but they'd get a house seat or two). This could be folded into the U.S. possessions issue.

These are issues on which our system has made many awkward and controversial compromises. It's obvious that the Framers either didn't think about it - D.C. is probably one such area - or simply couldn't come up with an answer at the time (I think secession was probably an issue nobody wanted to touch, since the pro-ratification faction was already terrified of states leaving over minor issues, and the pro-secession faction probably didn't want to ratify in the first place.)

These aren't existential threats to the Republic by any means, and could be addressed through a more conventional process if the country was less polarized and/or the amendment process was made easier, as I suggested in my government structure piece. If we somehow got a Constitutional Convention convened, I think they'd be worth taking a look at anyways - but that's just because we're already in town, so why not.

Finally, the right to arms is an obvious example of how the world has changed in the two centuries since the Constitution was ratified. I doubt we'll ever be able to touch it, but if we could, I'd like to rephrase it. First, we can make it absolutely clear that heavy arms and ordinance are not for private individuals to own, and second, we can clarify things like automatic and semi-automatic light arms are subject to Congressional regulation. A literalist reading of the 2nd amendment applies to all arms - which obviously is unacceptable in the nuclear age - and we can, if we want, enshrine an individual right while using a phrase like "limited right" or "regulated right". None of this would never actually be on the table, but hey, I can dream, right?

[TrackerNeil]

10 hours ago, Swordfish said:

There is no explicit requirement in the constitution for them to hold hearings. So no, the political stupidity of it is utterly irrelevant to the question of whether what they are doing is an abdication of an explicit constitutional duty. It either is or it isn't. 

I think you're splitting hairs here. No, the Constitution does not lay out penalties for what will happen if the Senate refuses to act at all, most likely because the Framers never considered the possibility. However, by your argument, the Senate could simply declare that it will not consider any nominees again, ever, until the end of time, and that too would be constitutional. 

I'm not arguing for the courts to get involved here, because I think Ser Scot is right about that being a constitutional crisis. However, let's not kid ourselves that this blockade is anything but a failure of the Senate to do its constitutional duty, out of strictly partisan motivation. 

[Ser Scot A Ellison]

Velo,

Explicitly in Art. V a Constitutional convention can be called by the legislatures of 2/3rd's of the States.  Any amendments drafted have force and effect when ratified by 3/4ths of the States.

[Veloknight]

55 minutes ago, Ser Scot A Ellison said:

Velo,

Explicitly in Art. V a Constitutional convention can be called by the legislatures of 2/3rd's of the States.  Any amendments drafted have force and effect when ratified by 3/4ths of the States.

Oh, I need to reread that, then. I knew the second bit, obviously, but frankly that's still much to high a bar, especially after getting through Congress or a Convention. Thanks!

[Veloknight]

8 hours ago, Shryke said:

I would throw in fixed election dates as a major issue for the US as well personally as they create no way to deal with a non-functioning government other then just waiting it out.

Like, if the Democrats seized control of both houses of Congress in november this year and decided to literally do nothing at all, there is no way to deal with that till 2018.

Yup! If the term lengths are not fixed, only capped, a ton of problems (including non-crisis political issues) can be resolved more easily, because the government is more directly accountable. I wonder if we couldn't reform some of this on a state basis - basically create an automatic recall election of the entire delegation if certain things happen in Congress.

One other issue: fixed terms can promote immoderation, which ostensibly is what the Constitution is supposed to love. If I'm elected as a Democratic house rep in 2016 in a purple/red district, and somehow we regain control of Congress (maybe due to a Trump nomination), I know two things:

1. I'm safe to legislate for 2 years
2. I will probably lose my seat in 2018 no matter what happens, based on turnout patterns and the lack of Trump on the ballot

Given those 2 things, I have exactly zero incentive to moderate my positions at all, but I do have an incentive to push through as many and as aggressive liberal legislation as I can, and try and set myself up for some other run after my defeat. If I got elected to a house seat with no fixed term, but an election at least every, idk, 4 years, I'd have a much better reason to hope my fellow Democrats and I can moderate to remain appealing to the electorate as long as possible.

[Swordfish]

4 hours ago, TrackerNeil said:

I think you're splitting hairs here. No, the Constitution does not lay out penalties for what will happen if the Senate refuses to act at all, most likely because the Framers never considered the possibility. However, by your argument, the Senate could simply declare that it will not consider any nominees again, ever, until the end of time, and that too would be constitutional. 

 

I think that's absolutely correct.  I think they could very well do that and there would not be a constitutional issue, for reasons already stated. 

Let me ask you this: the link Kal posted earlier rightly pointed out that there are many open appointments out there for which there is no nominee  Has the president abdicated his constitutional duties in those cases?

 

[Swordfish]

3 hours ago, Veloknight said:

Yup! If the term lengths are not fixed, only capped, a ton of problems (including non-crisis political issues) can be resolved more easily, because the government is more directly accountable. I wonder if we couldn't reform some of this on a state basis - basically create an automatic recall election of the entire delegation if certain things happen in Congress.

One other issue: fixed terms can promote immoderation, which ostensibly is what the Constitution is supposed to love. If I'm elected as a Democratic house rep in 2016 in a purple/red district, and somehow we regain control of Congress (maybe due to a Trump nomination), I know two things:

1. I'm safe to legislate for 2 years
2. I will probably lose my seat in 2018 no matter what happens, based on turnout patterns and the lack of Trump on the ballot

Given those 2 things, I have exactly zero incentive to moderate my positions at all, but I do have an incentive to push through as many and as aggressive liberal legislation as I can, and try and set myself up for some other run after my defeat. If I got elected to a house seat with no fixed term, but an election at least every, idk, 4 years, I'd have a much better reason to hope my fellow Democrats and I can moderate to remain appealing to the electorate as long as possible.

That seems like a recipe for additional gridlock to me. I think if you have just one person in that position, then your analogy holds. But if no congressman have any reason to compromise, and they are all beholden only to their own agenda, because of lack of consequence, it seems to me you run the risk of congressional anarchy. 

[TrackerNeil]

42 minutes ago, Swordfish said:

I think that's absolutely correct.  I think they could very well do that and there would not be a constitutional issue, for reasons already stated. 

Let me ask you this: the link Kal posted earlier rightly pointed out that there are many open appointments out there for which there is no nominee  Has the president abdicated his constitutional duties in those cases?

 

If Obama has stated that he does not intend to fill those positions because of ideological or political reasons then, yes, he has.

As to your first point, I think that is a rather robotic understanding of the Constitution. The intention there seems pretty clear to me, but, yes, a hyper-literal reading of the document does permit for the Senate to perform none of its obligations. In fact, the president doesn't need to do anything either, nor does the House--there's a world of perfectly constitutional neglect out there for us to explore! However, I suggest that we actually engage our brains in thinking about what the Constitution actually means, instead of getting caught up in some line-by-line, super-literal parsing of language written centuries ago. 

[A Horse Named Stranger]

Can anybody explain to me the rational behind mid-term elections?

IMO the easiest step to at least tune down gridlocks is to have one central election.

So vote on the House, and the Senate and POTUS on the same day. That way you at least have them campaining in one year and a few every year. It should also improve turn out numbers for congress elections.

[Swordfish]

4 minutes ago, TrackerNeil said:

If Obama has stated that he does not intend to fill those positions because of ideological or political reasons then, yes, he has.

As to your first point, I think that is a rather robotic understanding of the Constitution. The intention there seems pretty clear to me, but, yes, a hyper-literal reading of the document does permit for the Senate to perform none of its obligations. In fact, the president doesn't need to do anything either, nor does the House--there's a world of perfectly constitutional neglect out there for us to explore! However, I suggest that we actually engage our brains in thinking about what the Constitution actually means, instead of getting caught up in some line-by-line, super-literal parsing of language written centuries ago. 

So it doesn't actually matter whether you actually do what you claim the constitution says you have to do, it's perfectly ok not to, as long as you don't admit you aren't doing it? Um... Ok. 

The constitution means what it says it means. You want to read into it something that is not there, to suit your own purposes. when it was written is irrelevant.  No one that I have seen has even successfully tried to justify the interpretation that there is an explicit duty imposed on the senate, and even if there IS such a duty, that what they are doing is an abdication of that duty. Again, they are entirely within their right to not consent to the appointment of a justice in whatever way they see fit. There's simply no restriction there that compels them to withhold that consent explicitly via a hearing or vote.  (And for the record, attenpts by some other posters to mangle the English language do not count)

Again, I think they SHOULD vote on it. But I can't see any way in which not voting omit is some kind of constitutional abdication. This is a political battle on both sides, not a constitutional one. 

[Ser Scot A Ellison]

Notone,

Two year terms for house memebers.  Four year term for the President.  Six year terms for Senators.  You end up with staggered elections some of which don't coinside with Presidential elections.

[Veloknight]

56 minutes ago, Swordfish said:

That seems like a recipe for additional gridlock to me. I think if you have just one person in that position, then your analogy holds. But if no congressman have any reason to compromise, and they are all beholden only to their own agenda, because of lack of consequence, it seems to me you run the risk of congressional anarchy. 

I think you're misunderstanding what I'm saying. The second part was my description of how the system works right now - if the dems retook Congress under current rules, I wouldn't be surprised to see a lot of really liberal legislation, because what reason do they have to moderate?

[TrackerNeil]

4 minutes ago, Swordfish said:

So it doesn't actually matter whether you actually do what you claim the constitution says you have to do, it's perfectly ok not to, as long as you don't admit you aren't doing it? Um... Ok. 

I don't know what this even means. What I mean is that when the Constitution clearly indicates the role of an elected (or un-elected) official, you try to live up to that role. If you refuse to do so, you're deviating from the clear intent of the Constitution. It's too bad the courts really can't do anything about it, but that doesn't mean a deviation has not occurred.

[A Horse Named Stranger]

Just now, Ser Scot A Ellison said:

Notone,

Two year terms for house memebers.  Four year term for the President.  Six year terms for Senators.  You end up with staggered elections some of which don't coinside with Presidential elections.

Ah, ok. 

Little surprise the house looks so dysfunctional. A 2 year term looks like (almost) constant campaign mode. Let me guess they only really get to do their "job" the first year after their election, and the second year they really have to spend campaigning again.

[Ser Scot A Ellison]

Tracker,

If the Courts can do "something" about it then the Courts have more power than the other two branches.  The Legislative and Executive are then subordinate to the Courts and Courts are not elected.  It doesn't work.

[Swordfish]

20 minutes ago, TrackerNeil said:

I don't know what this even means. What I mean is that when the Constitution clearly indicates the role of an elected (or un-elected) official, you try to live up to that role. If you refuse to do so, you're deviating from the clear intent of the Constitution. It's too bad the courts really can't do anything about it, but that doesn't mean a deviation has not occurred.

So then you agree that the president has abdicated his constitutional duty by not putting forth those nominations?

ok. But we disagree on that too

The senate is not refusing to do their duty as you've defined it, they have given their advice that they will do it at the time of their choosing. Namely, after the election. 

[Swordfish]

19 minutes ago, Veloknight said:

I think you're misunderstanding what I'm saying. The second part was my description of how the system works right now - if the dems retook Congress under current rules, I wouldn't be surprised to see a lot of really liberal legislation, because what reason do they have to moderate?

Ah...  You're right. I misunderstood. Apologies. 

[Fragile Bird]

Hahahahaha, reading these idiotic defenses of the Senate Republicans refusing to act on the Supreme Court nomination made by the president of the USA brings me to the conclusion that we are seeing yet another crime black people are guilty of, "being President while black".  If I were kinder I would say the crime was "being President while Democrat", but no previous Democrat has ever faced this amount of hostility and the only different factor is the fact he's black.

I would love to see President Obama and then President Clinton simply not nominate a candidate at all, and see how many years that could go on before the Republicans are forced to the table to negotiate rules.  It would slow down the work of the Supreme Court, of course, but hey, not that big a price to pay for the Republican definition of democracy to be tested, right?

 I'd like to see the Republicans agree that no future president could ever nominate anyone in that list in the Constitution in their final year of their presidency then.  After all, if the American people should have a voice in the nomination in the final year of a presidency, then no "ambassadors or other public ministers or consuls" should be appointed either.  Right?