rodoheel
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I was listening to a legal podcast by federalist society types (though generally Trump opponents) Sarah Isgur and David French, and they were talking through some of the early Trump actions, their legal ramifications, etc. They said some things that frustrated me about how our government is supposed to work - specifically talking about the administrative state, which they believe needs to be reformed (like most Federalist society types they have a natural aversion to "unelected bureaucrats"). They were reading from a piece Kavanaugh wrote years before joining the Supreme Court, which touches on the unitary executive theory, that opined that having administrative officers who can't be fired by the president does not advance "liberty" because it creates a decisionmaker who is not electorally accountable. And how now as a result we have an administrative system that neither Congress nor the President can fix - unless the President is the "unitary executive" with complete control over administrative agencies. What they were saying overall is, we may not like how Trump is going about this, but the system is broken and we need someone to fix it (they just both agree that Trump/Musk are not the principled people to be doing that, and certainly not in the vein of "move fast and break stuff").
I said this frustrated me, and that's because they're ignoring (like federalist society types always ignore) that Congress is supposed to be the branch that fixes the administrative state if it supposedly needs fixing. They created the agencies and defined their missions and scopes of authority; they can un-create them, or limit their authority, or whatever. They're the democratically elected officials who are electorally accountable for the consequences of their actions. The problem is, Congress has been ground down into a functionally dysfunctional body for a variety of reasons, but one overriding one: the modern Senate filibuster, which after the procedural changes made in the 1970s now essentially functions like a requirement that legislation be supported by 60 senators. A requirement that is entirely inconsistent with the constitutional design to allow for legislation to be passed by a simple majority. It allows a minority to entirely obstruct legislation from the majority - and since the 70s, you don't even have to do it as a speaking filibuster, which means that you block ills that, as one commentator put it, you are "willing to block covertly but not overtly." In other words, the current rules enable this endless pointless dance where majorities can't pass anything and the public can't even figure out who to blame because the minority doesn't have to stand up and show that they're blocking something unless they want to.
While he knew nothing of the modern filibuster, in Federalist #22 Alexander Hamilton clairvoyantly predicted what it mean to have a "supermajority" threshold, rather than simple majority, to pass legislation:
"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. [...] The necessity of unanimity in public bodies, or something approaching it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, destroy the government's energy, and substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, so that something may be done, must conform to the views of the minority; thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings—hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."
It is bitterly ironic now, but Trump himself used to want the filibuster abolished, because he was frustrated that Congress wouldn't pass his agenda. But he and the people around him realized late in his first term, or in between his two terms, that the better path forward under the current system was to bypass Congress altogether and go with this "move fast and break stuff" version of totalitarian executive power. The reason we are here is largely because of the filibuster - the thing that has broken Congress more than anything else, even more than political parties themselves, which Washington and Hamilton, among others, always warned about. With Congress rendered functionally unable to enact major legislation, executive power has steadily increased since the 1970s and now Trump has taken it into overdrive. There really is "one easy fix" that can fix some of the biggest problems with our government - one that can return us to the legislative system the founders intended. And because no one has had the courage to make that fix, we're headed down the rabbit hole of authoritarianism instead.
I said this frustrated me, and that's because they're ignoring (like federalist society types always ignore) that Congress is supposed to be the branch that fixes the administrative state if it supposedly needs fixing. They created the agencies and defined their missions and scopes of authority; they can un-create them, or limit their authority, or whatever. They're the democratically elected officials who are electorally accountable for the consequences of their actions. The problem is, Congress has been ground down into a functionally dysfunctional body for a variety of reasons, but one overriding one: the modern Senate filibuster, which after the procedural changes made in the 1970s now essentially functions like a requirement that legislation be supported by 60 senators. A requirement that is entirely inconsistent with the constitutional design to allow for legislation to be passed by a simple majority. It allows a minority to entirely obstruct legislation from the majority - and since the 70s, you don't even have to do it as a speaking filibuster, which means that you block ills that, as one commentator put it, you are "willing to block covertly but not overtly." In other words, the current rules enable this endless pointless dance where majorities can't pass anything and the public can't even figure out who to blame because the minority doesn't have to stand up and show that they're blocking something unless they want to.
While he knew nothing of the modern filibuster, in Federalist #22 Alexander Hamilton clairvoyantly predicted what it mean to have a "supermajority" threshold, rather than simple majority, to pass legislation:
"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. [...] The necessity of unanimity in public bodies, or something approaching it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, destroy the government's energy, and substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, so that something may be done, must conform to the views of the minority; thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings—hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."
It is bitterly ironic now, but Trump himself used to want the filibuster abolished, because he was frustrated that Congress wouldn't pass his agenda. But he and the people around him realized late in his first term, or in between his two terms, that the better path forward under the current system was to bypass Congress altogether and go with this "move fast and break stuff" version of totalitarian executive power. The reason we are here is largely because of the filibuster - the thing that has broken Congress more than anything else, even more than political parties themselves, which Washington and Hamilton, among others, always warned about. With Congress rendered functionally unable to enact major legislation, executive power has steadily increased since the 1970s and now Trump has taken it into overdrive. There really is "one easy fix" that can fix some of the biggest problems with our government - one that can return us to the legislative system the founders intended. And because no one has had the courage to make that fix, we're headed down the rabbit hole of authoritarianism instead.
