A Schoolhouse Rock Style Civics Lesson

Senator Ben Sasse gave the country a nice civics lesson last week, as his opening statement at the Judge Kavanaugh confirmation hearing for Supreme Court Justice.

Senator Ben Sasse, opening remarks
at the Kavanaugh confirmation hearings
screen shot from C-SPAN3

First, he made it clear that the hysteria surrounding a well-qualified judge with bipartisan support among his colleagues has nothing to do with Brett Kavanaugh. It has to do with a misunderstanding of—and a corruption of—the balance of power laid out in our Constitution.

This is not something new. He says,

These confirmation hearings haven’t worked for 31 years in America. People are going to pretend that Americans have no historical memory, and supposedly there haven’t been screaming protestors saying women are going to die at every hearing for decades. But this has been happening since Robert Bork. This is a 31-year tradition. There’s nothing new the last 18 months.

It's ideological, and it’s political. And unfortunately it's treated like team sports:

Our political commentary talks about the Supreme Court like they’re people wearing red and blue jerseys. That’s a really dangerous thing.

He suggests that a better use of these hearings would be to do some Schoolhouse Rock civics lessons for our kids, to give them the opportunity to understand our government better:

We should be talking about how a bill becomes a law, and what the job of Article II is, and what the job of Article III is. So let’s try just a little bit. How did we get here? And how do we fix it?

And then he spends a little time going over some constitutional basics.

The Constitution’s drafters began with the legislature. These are equal branches, but Article I comes first for a reason. And that’s because policymaking is supposed to be done in the body that makes laws. That means that this is supposed to be the institution dedicated to political fights.

If we see lots and lots of protests in front of the Supreme Court, that’s a pretty good litmus test barometer that our republic isn’t healthy. Because people shouldn’t be thinking of protesting in front of the Supreme Court; they should be protesting in front of this body.

The problem is that Congress (he refers to the legislative body using the general term Congress, comprised of the House and the Senate) has abdicated its responsibilities. The founders believed that the desire for power—generally a bad human trait, but nevertheless part of human nature—could be harnessed to have three separate but equal branches of government all jealously maintaining their power from overreach by the other branches. The founders would be surprised to see what has actually happened.

Here’s his description:

How did we get to a place where the legislature decided to give away its power? We’ve been doing it for a long time, over the course of the last century, but especially since the 1930s, and then ramping up since the 1960s—a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government, or don’t know about their government, are the places where most actual policymaking—kind of in a way, lawmaking—is happening right now.

This is not what Schoolhouse Rock says. There’s no verse of Schoolhouse Rock that says “give a whole bunch of power to the alphabet soup agencies, and let them decide what the governance decisions should be for the people”—because the people don’t have any way to fire the bureaucrats.

And so, what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the secretary or the administrator of bureaucracy X, Y, or Z to make law-like regulations. That’s mostly what we do here. We go home, and we pretend that we make laws. No, we don’t. We make giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined. And we say, the secretary of such and such shall promulgate rules that do the rest of our dang jobs.

from Schoolhouse Rock video
Three Ring Government

That’s why there are so many fights about the executive branch, and about the judiciary, because this body rarely finishes its work.

He admits there’s a rationale, flawed though it may be, for the regulatory system:

The Congress can’t manage all the nitty gritty details of everything about modern government. And this system tries to give power and control to experts in their fields, while most of us in Congress don’t know much of anything, or, about technical matters, for sure, but you could also impugn our wisdom if you want. But when you’re talking about technical, complicated matters, it’s true that the Congress would have a hard time sorting out every final dot and tittle about every detail.

But the real reason is more self-serving. Legislators don’t want to take responsibility for difficult or unpopular decisions.

If people want to get reelected over and over again, and that’s their highest goal—if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy. It’s not a very good life, but it’s a pretty good strategy for incumbency.

In the abstract, maybe it doesn’t seem so awful. But it has real life consequences to the people. Sasse offers an example of his fellow Nebraskans:

When Congress neuters itself and gives power to an unaccountable fourth branch of government, it means the people are cut out of the process. There’s nobody in Nebraska, there’s nobody in Minnesota or Delaware who elected the Deputy Assistant Administrator of Plant Quarantine at the USDA. And yet, if the Deputy Assistant Administrator of Plant Quarantine does something to make Nebraskans’ lives really difficult—which happens to farmers and ranchers in Nebraska—who do they protest to?

As the senator points out,

Almost all the power right now happens offstage. And that leaves a lot of people wondering, “Who’s looking out for me?”

He does offer a solution. It’s one of those simple but not easy things, but it beats what we’ve been doing:

The solution here is not to try to find judges who will be policy makers. The solution is not to try to turn the Supreme Court into an election battle for TV. The solution is to restore a proper Constitutional order, with a balance of powers. We need Schoolhouse Rock back.

We need a Congress that writes laws and then stands before the people and suffers the consequences and gets to go back to our own Mount Vernon, if that’s what the electors decide. We need an executive branch that has a humble view of its job, as enforcing the law, not trying to write laws in the Congress’s absence. And we need a judiciary to trust to apply written law to facts and cases that are actually before it.

This is the elegant and the fair process that the founders created. It’s the process where the people who are elected—two and six years in this institution, four years in the executive branch—can be fired. Because the justices, and the judges, the men and women who serve America’s people by wearing black robes, they’re insulated from politics.

So, we need to stop playing the decades-long game of politics surrounding the Supreme Court. Maybe we can get that if Congress will take back its power. There are hints that that could happen. The rolling back of regulations is a start. Making sure any new legislation is simple, straightforward, and necessary, based on the proper role or the federal government would help.

And—as it appears is a possibility at last—we can have a majority on the Court that know the limits of their power and abide by the law, instead of making it up as they go.

If you’ve got a young person around who isn’t getting taught this kind of civics in school, share Senator Sasse’s lesson with them. The whole 15 minutes is below. And for younger kids, maybe you should look up some of those old Schoolhouse Rock videos online. It’s amazing how the tunes—and the messages they carried—can come back decades later.

The Executive Is No Angel

There are a couple of quotes I’d like to contrast. This first is from James Madison, in The Federalist Papers, #51:

What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on the government would be needed.

The second quote is from that contemporary political mind, Gwyneth Paltrow, who held a fundraiser at her Santa Monica, CA, home last week. Besides gushing, “You’re so handsome that I can’t speak properly,” she advised all who would hear:

It would be wonderful if we were able to give this man all of the power that he needs to pass the things that he needs to pass.

James Madison, image from here;                      Gwyneth Paltrow, photo from here

If great minds think alike, then one of these divergent thinkers might not be a great mind.

Here’s what we know. Human nature means that no person—not even another George Washington—should be imbued with absolute power. If a person is neither God nor one of His angels, that person’s power should be limited. So, while it might be possible to pile up the complaints against our current president’s character (even though Miss Paltrow apparently can’t), the only necessary reason for being suspect and limiting his power is: he is not God, and he is no angel.

Our founders brilliantly identified three aspects of power—and wisely separated them: law making, law judging, and law executing.

There’s a new course offered online, for free as usual, from Hillsdale College, called The Presidency and the Constitution, with Dr. Larry Arnn giving the introductory lecture. In lecture 1, around 17 minutes in, he gives this background on separation of powers:

In the Declaration of Independence, there is separation of powers. It occurs in two ways. In the first way, in the middle of the document, a largely ignored but incredibly important part of the document, they gave the reasons why they’re doing it. The bad stuff the king has done. There are 17 of them, and several of them are violations of separation of powers: made judges dependent on his will alone, suspended legislatures and interfered with their operation. And so here you have an executive, and he’s actually getting control—and in English history sometimes the king did have control—of all of the processes of government, making him a law unto himself. And so, that’s condemned in the Declaration of Independence. That is grounds for revolution, if that happens.

But then the second way is, if anything, more sublime. And that is, the branches of government are named in the Declaration of Independence in relation to God. God appears four times. Once he’s the creator. That’s like a constitution maker, like a founder, if you see that in political terms. And it would be right, I think, to see it in political terms, because here we have a sublime political document. The first time He shows up, He’s the maker of the laws of nature and of nature’s God. He’s the legislator.

Then later, toward the end of the document, He’s named as the supreme judge of the world—the judicial branch. And as divine providence, the executive branch. And the lesson from that is plain. The way God is addressed is the way He is viewed.

And then these complaints against the king, about his violation of separation of powers, that it is in the hands of God alone that you would place all the powers of government. And any man, like King George III, who tried to arrogate those powers to himself—that would be an evil. Not to be trusted.

Absolute power is not a new threat. It wasn’t even new in the days of King George III. Tyrants seeking absolute power have been the norm. But not right. Absolute power in a human being—or even a small number of humans—is an evil to be avoided. On the Spherical Model, it is southern hemisphere statist tyranny.

I came across another source this week, also from Hillsdale, about separation of powers. September’s Imprimis article is “The History and Danger of Administrative Law," by Philip Hamburger, of Columbia Law School. He defines administrative power as a modern version of placing multiple powers in the hands of the executive—in other words, just another form of tyranny.

He says, in introduction,

Administrative law is commonly defended as a new sort of power, a product of the 19^th and 20^th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.

He compares what our current form of executive-appointed administrative rule with the long-familiar prerogative power of kings. He uncovers three types of prerogative power—all of them precluded by our Constitution: extra-legal, supra-legal, and consolidated power. He explains:

Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.

When we see our president—and not just the president, but the legislature, by not doing their duty, but turning it over to some regulatory agency—writing thousands of regulations, such that no human could possibly identify them and abide by them, that is the same old tyranny we’ve seen before. When he decides, using waivers, whom he will choose to exempt from laws and regulations, again that is the same old tyranny rule. When he has regulatory agencies judge whether a person is in defiance of a regulation and can then fine and/or imprison that “wrongdoer,” that is not what our founders would call divided powers. That is the executive branch (president, potentate, dictator, king…) making the laws, judging the laws, and executing the enforcement of them.

What we have is the very mess we declared independence from back in 1776. So what do we do now?

Hamburger offers this simple-but-not-easy starting point:

The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law, understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.

 

Executive Disorder

There seems to be some misunderstanding about what an executive order is. In short, it is an order by an executive to carry out (that is, execute) the duties of that role. It doesn’t sound that difficult to understand.

In the federal government, with powers carefully separated, an executive doesn’t make law, but carries out the laws set forth by acts of the legislative branch. So this week when President Obama made an executive order to offer some sort of legal status to grown children of illegal aliens, that wasn’t accurately an executive order at all; that was a law change by fiat—not a power we have granted to the executive branch.

Back in the early days of the country, one of the first orders by the executive, President George Washington, was to place an order for a set of dishes to be used at state diplomatic dinners. Diplomatic relations with foreign dignitaries was a role required of the executive branch, so it seemed reasonable. And when the funding for the order came before the legislature, which had power over the budget, Congress granted funding for the request.

Over the decades, executive orders were mostly policy statements to the various specific departments directed by the executive. These aren’t laws. They aren’t even regulations. They are policies and procedures that are intended to meet the objectives of the law.

But over the decades, particularly recent decades, Presidents have pushed the boundaries. Back in President Truman’s day, the Supreme Court pushed back. Truman tried to put all steel mills in the US under federal control. The Court saw that as making law and disallowed it. Which put future presidents on warning, and since then they have mostly cited the law they are supporting when making executive orders.

Executive orders have been used to fight wars without the formal declaration of war, but in those instances Congress has followed up with authorization. It was seen mainly as a timing issue of immediate military needs.

Problems began to mount in the last few decades when the executive branch granted power to regulatory agencies, with intrusive legal authority that never passed through Congress. One of the “causes” of executive order overuse has been contradictory laws and regulations. The US legal code is pretty convoluted—even incomprehensible to the non-legally trained public. And that leaves a lot up to interpretation. Executive orders have been used to direct policy during a particular administration, in a way saying, “While I’m in office, we’re going to interpret the law this way.” Or maybe just saying, “We’re going to focus enforcement here with limited time and resources.”

Rather than the executive branch interpreting and then picking enforcement priorities, a better solution would be to insist on clarity in the code, but we’re not likely to get that in the short run. Real arguments come when the president’s policy simply disagrees with the law, so he uses executive orders to circumvent the law or simply ignore it.

An example would be Obama’s ending the Mexico City Policy, thus authorizing taxpayer funds to be used for grants to international groups providing abortion services. That was done his first week in office. A couple of months later he removed restrictions on taxpayer funding for  embryonic stem cell research (research that, by the way, continues to produce zero successes, while non-embryonic stem-cell research continues to make headway; it’s about wanting to sacrifice embryos more than it is about advancing science.)

In the current administration “executive orders” are simply a maneuver to exert power when Congress hasn’t seen fit to grant it. There’s even a catchy name for this “program”: “We Can’t Wait.” It combines executive orders, regulatory rulemaking, and recess appointments to avoid needing Congressional approval before doing whatever Obama wants to do. Note that all the czars appointed by the president are extra-constitutional, so none of the regulations put forth by any agency headed by a czar should be given authoritative weigt. And pretending that Congress is in recess during a weekend shows “he won’t wait,” but it hardly illustrates Congress as the roadblock he claims.

Shutting down an executive order, at least in this day and age, is difficult. Congress can overrule, but requires a supermajority. Even cutting off funding is more difficult than it ought to be. And a Supreme Court ruling requires a lawsuit by someone who can show damage from the action, and time for the issue to work its way up to the Supreme Court.

So Obama orders at will, with a “what are you going to do about it?” arrogance. The quickest, simplest approach is to vote the president out of office, and toss out all his executive orders along with him.

Which means, executive orders are arbitrary and temporary—bad things when you’re dealing with a society that functions by the rule of law. As Thomas Sowell explains this week, anyone who comes forward and claims their parents are illegal aliens risks making that known when the Obama rule could disappear within the year. And who is going to hire a newly identified suddenly legal alien, putting in the training and investment needed for a new employee, if there’s a risk the next year of being charged with hiring illegals?

If the change had been through congressional debate, those questions might have been answered. The arbitrariness would have been eliminated before a rule became law. There are reasons to wait for Congress. In general, the less Congress does, the better off we are.

But Obama “can’t wait,” or maybe can’t be bothered with details like the Constitution. He prefers being an autocrat. This executive does a lot of ordering, but what he creates is disorder.