Recess Appointments

Amber Phillips at WP:

“Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments,” Trump posted on his Truth Social platform, adding that he wants positions filled “IMMEDIATELY!”

What Trump’s asking is technically constitutional, experts say, but would be a stark abdication of powers on the part of the Senate. And it could be just the beginning of Trump’s effort to get what he wants out of a Republican Congress.

...

 “What Trump is essentially doing is telling the Senate to give up one of its core constitutional roles,” said Sarah Binder, a constitutional expert at George Washington University. “The Senate’s role of advice and consent was to be a check on who the president wants to put in these positions."

In 2020, Trump threatened to force Congress to adjourn to make appointments without Senate approval.

...

Several Republican senators have said they’re open to Trump’s plan to bypass the nomination process.

That’s rare. Josh Chafetz, a constitutional law professor at Georgetown University, said members of Congress are usually loathe to give up their constitutional power, even for presidents of the same party. Sometimes Congress has stayed in office in what’s known as a perfunctory “pro forma” session, rather than recess in full, to prevent presidents from installing appointees.

This time, all three leading Republican contenders for the Senate majority leader seem open to it. “100% agree,” Sen. Rick Scott (Florida) replied to Trump on social media. “I will do whatever it takes to get your nominations through as quickly as possible.” Sen. John Thune (South Dakota) told Fox News Digital that “all options are on the table.” And Sen. John Cornyn (Texas) said on social media that the Constitution “expressly confers the power on the President to make recess appointments."

From CRS:

Notwithstanding the legal opinions and practices of the preceding decades, a Department of Justice legal opinion and two federal appeals court decisions related to four controversial recess appointments made by President Barack Obama on January 4, 2012, raised questions about what a “recess” is with regard to the recess appointment power. 16 In a June 26, 2014, opinion, the U.S. Supreme Court addressed these questions. It held that the President’s recess appointment power extends to both intersession and intrasession recesses. The Court also held that the President may use the recess appointment power essentially only during a recess of 10 days or longer. A Senate recess of 3 days “is not long enough to trigger the President’s recess appointment power,” and a recess of more than 3 days but less than 10 is “presumptively too short to fall within the Clause” but “leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.” The opinion gave as an example of an unusual circumstance an instance such as “a national catastrophe … that renders the Senate unavailable but calls for an urgent response.” The Court noted that “political opposition in the Senate would not qualify as an unusual circumstance.” 17 Furthermore, the Court concluded that, for purposes of the Recess Appointments Clause, “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” 18 This implies that the Senate would also determine if and when it will adjourn for a recess of 10 days or longer and thus allow for the possibility of recess appointments. Under the Adjournments Clause of the Constitution, however, such a determination requires the consent of the House.19 Consequently, either the Senate or the House can unilaterally prevent a Senate adjournment of 10 days or longer that would permit the President to exercise his recess appointment authority.

 

Presidential Tariff Power

 Sandler, Travis & Rosenberg, P.A:

A new report from the Cato Institute argues that several laws authorize the president to impose tariffs on a wide range of imported goods without substantial procedural or institutional safeguards. 

...

The report explains that several laws provide the president with “vast and discretionary authority to unilaterally impose sweeping trade restrictions.” Some of these are familiar to the trade community because of their recent use. Section 232 of the Trade Expansion Act of 1962 allows the president to restrict imports determined by the Bureau of Industry to represent a threat to national security, though the only time this law has been used to impose tariffs is when Trump targeted steel and aluminum imports in 2017. Section 301 of the Trade Act of 1974 allows the imposition of tariffs or other trade restrictions on a wide set of products imported from a targeted country or countries to address harmful foreign economic policies. This law was heavily used in the 1980s but was largely dormant after that until Trump used it to levy tariffs on imports from China.

Other laws include tariff authorities as well, even though none of them has ever been used in this manner. The International Emergency Economic Powers Act of 1977 grants the president wide discretionary authority to address threats to national security, foreign policy, or the domestic economy from a source outside the U.S. Section 338 of the 1930 Tariff Act authorizes new or additional tariffs of up to 50 percent on imports from countries that have discriminated against U.S. commerce, and if the discrimination continues the president may block such imports entirely or expand the trade restrictions to third-party countries that benefit from the discriminatory conduct. Section 122 of the 1974 Trade Act could be used to unilaterally implement a 15 percent global tariff for 150 days to address “large and serious” balance-of-payments deficits.

Consitutional Checks for Thee But Not for Me

Nicholas Riccardi and Linley Sanders:

A new poll from The Associated Press-NORC Center for Public Opinion Research[:] Though Americans say don’t want a president to have too much power, that view shifts if the candidate of their party wins the presidency. It’s a view held by members of both parties, though it’s especially common among Republicans.

Overall, only about 2 in 10 Americans say it would be “a good thing” for the next president to be able to change policy without waiting on Congress or the courts. But nearly 6 in 10 Republicans say it would be good for a future President Donald Trump to take unilateral action, while about 4 in 10 Democrats say the same if Biden is reelected.

The sentiment comes amid escalating polarization and is a sign of the public’s willingness to push the boundaries of the political framework that has kept the U.S. a stable democracy for more than two centuries. In the poll, only 9% of Americans say the nation’s system of checks and balances is working extremely or very well. It also follows promises by Trump to “act as a dictator” on day one of a new administration to secure the border and expand oil and gas drilling.

57% of Republicans think unilateral presidential action if Trump were to be re-elected is a good thing while only 39% of Democrats say the same about Biden. pic.twitter.com/Hp7bTmgeSs

— AP-NORC Center (@APNORC) April 5, 2024

Checks and Balances in Action

Madison in Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

During the Obama years, Republican state officials sued to stop administration policies.  Democratic officials  have been doing the same since 2017.

 An editorial in The Daily Sentinel (Grand Junction, CO):

 Montana’s Democratic Gov. Steve Bullock hit the nail on the head with a tweet following a federal judge’s ruling Friday that William Perry Pendley has been serving unlawfully as the acting director of the Bureau of Land Management.

“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Bullock wrote.

...

U.S. District Judge Brian Morris said Pendley has served as the acting director of the BLM unlawfully for 424 days without being confirmed to the post by the U.S. Senate.

Pendley’s “ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act),” Morris wrote in his opinion. “Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”

...

“Under Federal Defendants’ theory, a President could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through Cabinet Secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario.”

The administration’s theory “flies in the face of the constitutional design.”

An Interior spokesman told CNN the administration will appeal immediately. In the meantime, Morris gave both sides of the case 10 days to file briefs about which of Pendley’s order must be vacated.

We all intuitively know that someone exercising the power of BLM director without Senate confirmation doesn’t square with the law.

Witnessing in action the checks and balances design of our Constitution is a thing of beauty.

The Federalist Papers and a Court Case

Judge Ketanji Brown Jackson explaining why former White House counsel Don McGahn has to testify before Congress:

DOJ’s arguments to the contrary are rooted in “the Executive’s interest in ‘autonomy[,]’” and, therefore, “rest[] upon a discredited notion of executive power and privilege.” Id. at 103. Indeed, when DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny. See The Federalist No. 51 (James Madison); see also Buckley v. Valeo, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.

...
 To the contrary, the Framers spoke specifically to the importance of maintaining an established rule of law to regulate government conduct—and, thus, to the significance of the judicial function—when they explained why a system that separates the powers of government and includes checks on the exercise of government power is crucial to sustaining a democracy:

...[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But 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 external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The Federalist No. 51 (James Madison). The Framer’s specific reference to providing
government officials in each of the separate branches with “the necessary constitutional
means and personal motives to resist the encroachments of the others[,]” id., is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See id. (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”).

...
 In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together. See The Federalist No. 51 (James Madison).

...

Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

Corruption: International Data

From Transparency International:

The 2018 Corruption Perceptions Index (CPI) released today by Transparency International reveals the United States as a key country to watch in a global pattern of stagnating anti-corruption efforts and a worldwide crisis of democracy. With a score of 71, the US hasdropped four points since last year. This marks the first time since 2011 that the US falls outside of the top 20 countries on the CPI.

To view the results, visit: www.transparency.org/cpi2018

“A four point drop in the CPI score is a red flag and comes at a time when the US is experiencing threats to its system of checks and balances, as well as an erosion of ethical norms at the highest levels of power,” said Zoe Reiter, Acting Representative to the US at Transparency International. “If this trend continues, it would indicate a serious corruption problem in a country that has taken a lead on the issue globally. This is a bipartisan issue that requires a bipartisan solution.”

The 2018 CPI measures public sector corruption in 180 countries and territories, drawing on 13 expert assessments and surveys of business executives to give each country a score from zero (highly corrupt) to 100 (very clean). Five of the nine sources used to compile the score for the US showed a noteworthy drop in score*. The other sources showed no improvement.

Rosenstein on Justice

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Bar Association of Montgomery County’s Law Day CelebrationRockville, MD ~ Friday, May 4, 2018

 The interplay among the branches is incredibly complex, and our Constitution contemplates numerous checks and balances.

In the executive branch, we take an oath. We pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. We promise to bear true faith and allegiance to the same. We attest that we take this obligation freely, without any mental reservation or purpose of evasion. And we commit to well and faithfully execute the duties of the office, so help me God.

Faithfully enforcing the law is not about following a simple set of instructions. As the great champion of the law Robert H. Jackson put it, “law enforcement is not automatic.” Enforcing the law requires discretion and judgment.

When carrying out our enforcement duties, the executive branch is required to enforce the law as written by the legislature, and as interpreted by the judiciary.

At the Department of Justice, our duty is in our name. Attorney General John Ashcroft famously said that we are the only cabinet department with a name that articulates a moral value.
...

Our Bill of Rights, containing the first ten amendments, is often regarded as the pride of American government. But the Constitution originally had no Bill of Rights. The issue was considered during the Constitutional Convention in Philadelphia in 1787, but the Constitution was ratified without it.

The Framers were more concerned about our government’s structure than a written guarantee of rights, because a written guarantee is only as powerful as the system in place to protect it. Our constitutional structure, and the separation of powers embodied in that structure, represents our government’s defining feature.

Justice Scalia explained that “it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, ‘ambition against ambition,’ and make it impossible for any element of government to obtain unchecked power— that convert the Bill of Rights from a paper assurance to a living guarantee.”

The Founders dispersed power both horizontally and vertically. The three branches of the federal government check one another. The states and the federal government check one another. And the people check both the federal and the state governments.

Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.

Lawyers and judges bear great responsibility for implementing and explaining those principles. The further we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.

The Oath and the FBI

Special Agent Jonathan Rudd writes at the FBI:

Early in the morning, on their first full day at the FBI Academy, 50 new-agent trainees, dressed in conservative suits and more than a little anxious about their new careers, stand as instructed by the assistant director of the FBI and raise their right hands. In unison, the trainees repeat the following words as they are sworn in as employees of the federal government:

I [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

At the end of their academy training, and as part of the official graduation ceremony, these same new-agent trainees once again will stand, raise their right hands, and repeat the same oath. This time, however, the oath will be administered by the director of the FBI, and the trainees will be sworn in as special agents of the Federal Bureau of Investigation.1 Similar types of ceremonies are conducted in every state, by every law enforcement agency, for every officer across the country. And, each officer promises to do one fundamentally important thing—support and defend the Constitution of the United States.

All too often in our culture, we participate in ceremonies and follow instructions without taking the time to contemplate and understand the meaning and significance of our actions. This article attempts to shed some light on the purpose and history of the oath and to further enhance our understanding of the Constitution that we as law enforcement officers solemnly swear to uphold.

...
Finally, the founding fathers built a system of checks and balances into the Constitution, whereby the executive, legislative, and judiciary would check and balance each other and state governments would balance the federal while it, in turn, would maintain a check on the states.35 When considering our system of checks and balances, obvious examples surface, such as when the president (executive) nominates judges to serve on the Supreme Court (judicial) with the advice and consent of the Senate (legislative). However, nowhere is the use and effect of checks and balances more poignantly illustrated than in the everyday lives of today’s law enforcement officers. For example, when officers determine that they have enough probable cause to search a home or make an arrest, barring special limited circumstances, they do not execute the search or arrest of their own accord and based on their singular authority as members of the executive branch. To the contrary, they seek the review and approval of a neutral and detached magistrate—a member of the judicial branch. Even though they may not realize it, every time officers prepare an affidavit and request approval of a warrant, they are engaging in the process of checks and balances so painstakingly advanced by our founding fathers over two centuries ago.

"We don't oversee the executive..."

At The Huffington Post, Igor Bobic reports on a town hall by Rep. Tom MacArthur (R-NJ):

Aside from health care, which dominated much of the discussion, voters at the town hall appeared to be concerned about the president’s decision to fire FBI Director James Comey. They urged MacArthur and other Republicans to stand up to the president and call for an independent investigation into Comey’s ouster and the Trump campaign’s possible ties to Russia.

“A special prosecutor is appointed by the president’s attorney general. I don’t see that as some silver bullet,” MacArthur said, adding he wanted to give the House and Senate Intelligence committees an opportunity to investigate the matter.

“We don’t oversee the executive,” he added, earning a round of loud boos from the audience. “Congress is not the board of directors of the White House.”

Nonsense.  Oversight is an essential function of Congress. Melanie Marlowe addresses the topic in her chapter in Is Congress Broken? 

As much as possible, Congress must reclaim its oversight role at the front end of the legislative process, not in post-action sniping. While Congress has various ways to compel testimony and investigate wrongdoing, its efforts would be well-spent on the hard work of writing tighter, clearer laws, thereby holding the executive branch and itself to higher standards, and becoming more professional. If Congress wants to be taken seriously, it must behave seriously. Although it’s a long game, institutional relevance can only be regained through proper constitutional steps.

James Madison, 2017

At The Washington Post, Charles Krauthammer notes that the courts have checked the immigration actions, Congress has refused to rush repeal-and-replace, the states have pushed back on the Trump agenda, and the press has performed a watchdog function.

Taken together — and suspending judgment on which side is right on any particular issue — it is deeply encouraging that the sinews of institutional resistance to a potentially threatening executive remain quite resilient.

Madison’s genius was to understand that the best bulwark against tyranny was not virtue — virtue helps, but should never be relied upon — but ambition counteracting ambition, faction counteracting faction.

You see it even in the confirmation process for Neil Gorsuch, Trump’s supremely qualified and measured Supreme Court nominee. He’s a slam dunk, yet some factions have scraped together a campaign to block him. Their ads are plaintive and pathetic. Yet I find them warmly reassuring. What a country — where even the vacuous have a voice.

The anti-Trump opposition flatters itself as “the resistance.” As if this is Vichy France. It’s not. It’s 21st-century America. And the good news is that the checks and balances are working just fine.

Is Congress Broken?

A new book from Brookings:

Is Congress Broken?
The Virtues and Defects of Partisanship and GridlockEdited by William F. Connelly, Jr., John Pitney Jr., and Gary J. Schmitt March 21, 2017

Contents
Chapter One




Making Congress Work, Again, Within the Constitutional System

Congress for many years has ranked low in public esteem—joining journalists, bankers, and union leaders at the bottom of polls. And in recent years there’s been good reason for the public disregard, with the rise of hyper-partisanship and the increasing inability of Congress to carry out its required duties, such as passing spending bills on time and conducting responsible oversight of the executive branch.

Congress seems so dysfunctional that many observers have all but thrown up their hands in despair, suggesting that an apparently broken U.S. political system might need to be replaced.

Now, some of the country’s foremost experts on Congress are reminding us that tough hyper-partisan conflict always has been a hallmark of the constitutional system. Going back to the nation’s early decades, Congress has experienced periods of division and turmoil. But even in those periods Congress has been able to engage in serious deliberation, prevent ill-considered proposals from becoming law—and, over time, help develop a deeper, more lasting national consensus.

The ten chapters in this volume focus on how Congress in the twenty-first century can once again fulfill its proper functions of representation, deliberation, legislation, and oversight. The authors offer a series of practical reforms that would maintain, rather than replace, the constitutional separation of powers that has served the nation well for more than 200 years.

272 Pages
Brookings Institution Press, March 21, 2017
Paperback ISBN: 9780815730361
Ebook ISBN: 9780815730378
ABOUT THE AUTHORS


William F. Connelly, Jr., is the John K. Boardman Politics Professor at Washington and Lee University. He is also founder and director of the university’s Washington Term Program.

John J. Pitney, Jr., is Roy P. Crocker Professor of American Politics at Claremont McKenna College. He previously served on the staff of Senator Alfonse D’Amato (R-NY) and the House Republican Policy Committee.

Gary J. Schmitt is resident scholar at the American Enterprise Institute, where he directs the Program on American Citizenship. He previously served as the Democratic staff director of the Senate Select Committee on Intelligence and executive director of the President’s Foreign Intelligence Advisory Board.

Maintaining Democracy in America

Pew reports:

Large majorities of the public, Republicans and Democrats alike, say open and fair elections and a system of governmental checks and balances are essential to maintaining a strong democracy in the United States.

However, there is less consensus about the importance of other aspects of a strong democracy – notably, the freedom of news organizations to criticize political leaders.

The survey by Pew Research Center, conducted Feb. 7-12 among 1,503 adults, finds that 89% say fair and open national elections are very important to maintaining a strong democracy, while 83% say the same about a system of checks and balances dividing power between the president, Congress and the courts.

As in past surveys, most also view the right to nonviolent protest (79%) and protecting the rights of those with unpopular views (74%) as very important components of a strong democracy. A smaller majority (64%) says the freedom of news organizations to criticize political leaders is essential to maintain a strong democracy in the U.S.

...
The sharpest partisan disagreement is over the importance of the freedom of news organizations to criticize political leaders. About three-quarters of Democrats (76%) say the freedom of the press to criticize politicians is very important to maintaining a strong democracy; only about half of Republicans (49%) say the same.

And where you stand depends on where you sit:

 

Federalist 10 and the 2016 Election

D.J. Tice writes at The Minneapolis Star-Tribune:

The founding fathers said there would be days like this. On the eve of the 2016 Iowa caucuses — which will plunge America into a maelstrom of election contests sweeping us dizzyingly toward actually choosing a new president — the understated warning from the chief author of our Constitution clangs like a fire bell.

Enlightened statesmen will not always be at the helm.

...
Yet even if these appetites produce a Sanders or a Trump presidency, the [Jesse] Ventura precedent suggests it might deliver another surprise, and a welcome one. In his official acts (as opposed to his celebrity antics), Gov. Ventura largely steered a mainstream course, delegating vigorously to decent public servants he placed in key jobs. A President Trump or Sanders might adjust to reality, too.

That’s likely, because America’s complex and cumbersome system of government constrains every office holder, making it improbable that even a champion demagogue could enact destabilizing innovations, at least not without major compromise.

This is why debates over the proper boundaries on a president’s executive orders matter. It’s why the much-criticized Senate filibuster, which makes passing controversial laws difficult, shouldn’t be carelessly discarded. It’s why limits should be enforced on a president’s war powers and on the government’s right to spy on citizens. It’s even why we must question tough-on-crime measures like the psychiatric commitment of sex offenders after they’ve served their prison terms.

Madison v. Trump

At The Federalist, James Tracinski writes:

Politically speaking, the conservative “base” is a minority faction. Our views—and I certainly include myself among the most radical small-government advocates—are shared by somewhere between 10% and 40% of the public, depending on the issue. But a lot of the base is bitter that we haven’t been able to dictate policy as if we command upwards of 60% of the vote.

Their beef isn’t with the Republican Party, it’s with the whole American system of government. Their enemy isn’t Mitch McConnell. It’s James Madison. If you’re the sort of person who uses “cuckservative” as an epithet for anyone who settles for less than what you imagine the right kind of strongman could deliver, then I’ve found your ultimate nemesis. James Madison is the original “cuckservative.”

The Father of the Constitution wrote the rulebook for the American political system, and he specifically wrote the rulebook for what’s supposed to happen to political factions. He explained this in The Federalist No. 10. Everyone should read this essay and thoroughly understand it, and almost no one does. But you can’t understand politics and can’t do politics until you do.

The basic idea is that the system is designed to prevent any minority faction from pushing its agenda, and it’s designed that way for our own protection, to prevent narrow interests and wild-eyed fanatics from taking over.The Federalist No. 10, is a rundown of all the ways the Constitution is designed to divide power and balance factions against one another in order to prevent any one faction from getting its way.

Now, we can take for granted that you don’t think your cause is a narrow interest or that you are a wild-eyed fanatic. But if that’s really true—and let’s face it, it probably isn’t—then the system is designed to prevent other minority factions from taking over. After all, if the system were designed so your group could set the rules with only 20% of the vote, then what’s to prevent a different 20% faction from shoving their agenda down your throat? So the system is rigged to prevent or slow down action unless it is backed by a broad, enduring consensus forged through a whole string of boring political compromises. That’s not a bug in the system. It’s a feature.

Trumpism is an appeal to the fantasy that we can just get around all that. The fantasy is: here’s this celebrity billionaire with a flamboyant personality who’s very famous and who seems to be the kind of guy who “gets things done.” And he is, for the moment, repeating some of the things that are high on your political wish list. So maybe he will be able to overcome everything in the system that is designed to prevent you from getting that wish list. Maybe he will magically allow your political faction to govern as if it were a majority.

Give Up on the Constitution?

In The New York Times, law professor Louis Michael Seidman says that we should give up on the Constitution:

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

His argument is incoherent.   On the one hand, he writes: "No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech."  But a few paragraphs later, he says: "Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper."  It is hard to square this statement with the violations of civil rights and civil liberties that have marred our history:  not just the Alien and Sedition Acts, but Woodrow Wilson's authoritarian actions during the First World War, and the internment of Japanese Americans in the Second World War, among others.  One would think that such examples would inspire greater devotion to the Constitution, not less.

Similarly, he starts by questioning the structure of government:  "Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?" Then he  says, "never mind."

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

So we should have an all-powerful Supreme Court instead of an all-powerful president?

Seidman would cut down the Constitution to get the political results he wants.  A Man for All Seasons offers the definitive rebuttal:

James Madison Comes to Kenya

In Kenya, Kepher Otenio writes at The Standard:

According to a political scientist, Wilson Agenya, each of the three branches has a specific function and the relationship among them is characterised by doctrine of separation of powers, which for many years has been overlooked.

...

"None of the three arms are supposed to interfere with the autonomous operations of the other because accumulation of power in the hands of one person may lead to tyranny and that is not the Kenya we want," he says. Agenya says Kenyan leaders must be ready to abide by the dictates of the new laws, which a third of the country’s 38 million population overwhelmingly endorsed at the referendum held on August 4, last year.

There must be checks and balances. This means each of the organs has the powers to check against the misuse of abuse of power by any of the trio otherwise one arm may abuse its powers and reign over others and House Speaker Kenneth Marende is on track and should be firm always.

Vice-President of East Africa Law society of Kenya Aggrey Mwamu concurs. He says the Judiciary and Legislature were now performing the bold roles that Kenyans have been expecting them to do in the past decades. Mr Mwamu praised the bold ruling by Mr Marende over the controversial nominations of judicial officers by the President, saying neither the Legislature nor the Judiciary should accept to be subdued by the Executive.

"The Executive must be ready to uphold the rule of law and should not behave as if its decrees were final. We are in a new era of new laws which we must follow its definitions and interpretations," said Mwamu.

While some Cabinet Ministers and legislators allied to Party of National Unity (PNU) led by Finance Minister Uhuru Kenyatta contested the ruling, claiming it was skewed in favour of Prime Minister Raila Odinga, others welcomed it.

Public Service Minister Dalmas Otieno said the rule of law must be upheld to the letter.

"The basic or core idea of the rule of law ... is that the Government must be able to point to some basis for its actions that is regarded as valid by the relevant legal system," Otieno told The Standard on Sunday.

Secondly, the rule of law requires that legal rules "should be capable of guiding one’s conduct in order to allow policy makers to effectively respond to growing demands of its people".

In other words, legal rules should meet a variety of criteria and should be prospective, not retrospective, that means they should be relatively stable and that there should be an independent Judiciary, Legislature and Executive.