This post is a slightly edited version of a comment on Senator Russ Feingold's post today, Progressivism and the Rule of Law.
Thank you, Senator Feingold, for both representing your constituents and upholding your oath of office. The Constitution is our social contract, what we are supposed to stand in agreement with as a citizenry in order to allow a federal government to exist.
This sentence is telling:
Through executive action, much of the damage to the rule of law can be reversed, paving the way for additional corrective action in Congress.
It seems to me that the fundamental failing in the Constitutional framework is that Congresspeople cede their institutional power to the President. Congresspeople fight tooth and nail over their own personal power, committee chairmanships and so forth, but a majority of them willingly shovel legislative power over to the executive.
Whether that's because they don't want voters to hold them to account at the ballot box for Congresspeople's responsibilities (e.g. the Iraq AUMF instead of a declaration of war, and John Kerry's justifications for it), because monied political players want more power in the executive where they really only need to influence and corrupt one person rather than 535, or because of other reasons, I don't know what the strongest motivations are. Note that virtually the same Congress that tried to impeach Bill Clinton over personal bullshit also tried to give him the power to edit budget bills. The bulk of Republicans wanted to stage a little coup against a Democratic President, while most Congesspeople sought to bolster the President's power regardless of which party held that office.
The Iron Law of Institutions is: the people who control institutions care first and foremost about their power within the institution rather than the power of the institution itself. Thus, they would rather the institution "fail" while they remain in power within the institution than for the institution to "succeed" if that requires them to lose power within the institution.
Democrats and the Iron Law of Institutions
A Tiny Revolution, Sept 5, 2007
In turn, the owned press cheers on this unconstitutional transfer of power, and the bulk of the public seems to neither understand nor care that it's happened.
How do we upset this dynamic? How do we force Congresspeople to assert their assigned institutional powers and responsibilities? It seems to me that, for any improvement in our governance to be lasting, Congress must take extralegal power away from the President and explicitly refute Nixon's "If the President does it, it's not illegal." While Obama conceding illegitimate power is absolutely something to celebrate, it will just lie waiting there for the next tyrannical figure, as it did in the Nixon-Reagan/G. H. W. Bush-G. W. Bush succession. There are some recommendations in the article linked above, such as:
- Any serious attempt to transform the Democratic party would include a conscious attempt to change its culture, into one that celebrates different people: organizers rather than elected officials and donors.
The founders relied upon the self-interested drive of each branch's members to check the other branches, but their framework has not sufficiently anticipated the impact of the "Iron Law of Institutions." The ultimate manifestation of that flaw is that, when the President and those in his administration grossly exceeded Constitutionally defined powers neglected responsibilities, Congress (even with a Democratic majority in the House) responded by granting more power, rather than by impeaching, jailing under an inherent contempt process, or even taking any investigation of the administration to its logical conclusion. When push came to shove, Congress grudgingly with relief turned the other cheek.
I don't fault the founders for this — it's not as though they had the hubris to anticipate that the same document would guide our government for over two centuries! They didn't anticipate instant communication, stateless corporations, the hypnotic power of television, and so on. After all, we're still using the electoral college!
In a time when executive branch officials argue that what they do is okay because Office of Legal Counsel lawyers told them so, and when the mere utterance of the words "unitary executive" mean the President has unchallengeable kingly powers, the "living Constitution" is dead. The words in the document no longer mean what they plainly say (just look at the Tenth Amendment), and if they suddenly did, it would mean wholesale revolution, in the literal sense that those with power would gain it and those with would lose it, as well as in the practical sense of violent upheaval.
As a distinguished Constitutional legal scholar, Obama knows exactly what potentially tyrannical powers he is about to wield. Hey may yet choose to wield some or most of them, however benevolently. I support any unilateral move on his part to concede those powers, but more than that I support any Congressional move to reassume its assigned role.
I would also support a new Constitutional Convention, since I think that our current Constitution is insufficient to guide a free, fair, representative society in modern times. The principles are truly great, but the structure has decayed and failed.