Thank you for this piece, and today’s article in the NYT. As a Canadian onlooker, hoping to avoid the fate of the Carthaginians, it is at least somewhat reassuring to see the gravity of the moment met with some historical perspective. Your allusion to Caesarism has reminded me that I was nearing the end of Robert Harris’ book Dictator when the US Supreme Court decision, rightly styled Trump v. United States, was announced. In Chapter 18 the book includes this fictional, but remarkably apt, speech by Cicero speaking to the Roman Senate: “Gentlemen, we embarked upon this war with Antony for a principle. The principle that no man, however gifted, however powerful, however ambitious for glory, should be above the law… The Roman Republic, with its division of powers, its annual free elections for every magistracy, its law courts and its juries, its balance between senate and people, its liberty of speech and thought, is mankind’s noblest creation. And I would sooner lie choking in my own blood upon the ground than betray the principle upon which all this stands. That is, first and last and always, the rule of law.” By Chapter 19, Cicero’s head and hands have been severed, and Augustus is on the throne as the first Roman emperor. The Trump v. United States decision marred by enjoyment of the summer months still bearing the names of Augustus and his adoptive father Julius Caesar, but I held out hope that it did not presage the arrival of an America breaking with its foundational principle of the rule of law. For the reasons you have so ably catalogued today, that hope is fading.
Thank you and very interesting. I'm guessing both that the medium term will see a thermostatic backlash against Trump, and that some fraction of his 'pen and phone' initiatives will be successful (but not all, let's say 50 percent succeed and 50 percent fail).
However it shakes out, I think the key thing is that the GOP won't go back to the days where they were content to cut taxes, reward lobbyists, but otherwise leave the administrative state apparatus permanently under the control of the liberal professional-managerial class (see: Washington DC voting 91 percent for Kamala).
They've realized: no, we don't actually have to fund this stuff year in and year out, and permanently support a galaxy of liberal 'N'GOs with our tax dollars. It's now all on the table with each new election. The future will be interesting.
I think that your articles are missing the difference between the US Constitution and how things are done in the government. I think the term “realignment” is more accurate of past political changes (and likely the current one) than “Constitutional Rupture.” Past realignment changed political coalitions, the most important issues, which party is dominant, and how things are done in government, but they do not change the Constitution.
I think what is at dispute is how much independence the federal bureaucracy has from the President.
The real constitutional rupture has been the growth over the last century of the federal administrative state far beyond anything enumerated in the Constitution. Just because the Supreme Court deferred to FDR after the Court Packing scheme does not make the trend constitutional.
For the last century, the autonomy of the federal bureaucracy from both the Congress and the President has grown substantially. They have effectively become a fourth branch of government that has very unclear constitutional authority. When the federal bureaucracy was small and not influential, this did not matter very much. But now it really matters.
The Constitution clearly delegates authority over the executive branch to the President, but it also grants Congress exclusive power to legislate and the responsibility of the bureaucracy to implement that legislation. Unfortunately, the federal bureaucracy goes far beyond just implementing Congress’ intent. As long as that continues, Congress cannot control the federal bureaucracy short of completing cutting off funding, which rarely happens.
So if the President cannot control the federal bureaucracy, then no one can. That is the real threat to checks and balances in our system.
In saying the above, I am not claiming to know what Trump wants or what will happen. Only that there is another huge issue at stake that has been ignored for the last century.
I encourage you to read Bruce Ackerman's books. They make the case for discontinuity better than I can (because they are books, not short essays, and because his knowledge of the field is vastly greater than mine), and they're a great read.
Thank you for this piece, and today’s article in the NYT. As a Canadian onlooker, hoping to avoid the fate of the Carthaginians, it is at least somewhat reassuring to see the gravity of the moment met with some historical perspective. Your allusion to Caesarism has reminded me that I was nearing the end of Robert Harris’ book Dictator when the US Supreme Court decision, rightly styled Trump v. United States, was announced. In Chapter 18 the book includes this fictional, but remarkably apt, speech by Cicero speaking to the Roman Senate: “Gentlemen, we embarked upon this war with Antony for a principle. The principle that no man, however gifted, however powerful, however ambitious for glory, should be above the law… The Roman Republic, with its division of powers, its annual free elections for every magistracy, its law courts and its juries, its balance between senate and people, its liberty of speech and thought, is mankind’s noblest creation. And I would sooner lie choking in my own blood upon the ground than betray the principle upon which all this stands. That is, first and last and always, the rule of law.” By Chapter 19, Cicero’s head and hands have been severed, and Augustus is on the throne as the first Roman emperor. The Trump v. United States decision marred by enjoyment of the summer months still bearing the names of Augustus and his adoptive father Julius Caesar, but I held out hope that it did not presage the arrival of an America breaking with its foundational principle of the rule of law. For the reasons you have so ably catalogued today, that hope is fading.
Thank you and very interesting. I'm guessing both that the medium term will see a thermostatic backlash against Trump, and that some fraction of his 'pen and phone' initiatives will be successful (but not all, let's say 50 percent succeed and 50 percent fail).
However it shakes out, I think the key thing is that the GOP won't go back to the days where they were content to cut taxes, reward lobbyists, but otherwise leave the administrative state apparatus permanently under the control of the liberal professional-managerial class (see: Washington DC voting 91 percent for Kamala).
They've realized: no, we don't actually have to fund this stuff year in and year out, and permanently support a galaxy of liberal 'N'GOs with our tax dollars. It's now all on the table with each new election. The future will be interesting.
Isn't that the Chinese curse: "may you live in interesting times?"
I think that your articles are missing the difference between the US Constitution and how things are done in the government. I think the term “realignment” is more accurate of past political changes (and likely the current one) than “Constitutional Rupture.” Past realignment changed political coalitions, the most important issues, which party is dominant, and how things are done in government, but they do not change the Constitution.
I think what is at dispute is how much independence the federal bureaucracy has from the President.
The real constitutional rupture has been the growth over the last century of the federal administrative state far beyond anything enumerated in the Constitution. Just because the Supreme Court deferred to FDR after the Court Packing scheme does not make the trend constitutional.
For the last century, the autonomy of the federal bureaucracy from both the Congress and the President has grown substantially. They have effectively become a fourth branch of government that has very unclear constitutional authority. When the federal bureaucracy was small and not influential, this did not matter very much. But now it really matters.
The Constitution clearly delegates authority over the executive branch to the President, but it also grants Congress exclusive power to legislate and the responsibility of the bureaucracy to implement that legislation. Unfortunately, the federal bureaucracy goes far beyond just implementing Congress’ intent. As long as that continues, Congress cannot control the federal bureaucracy short of completing cutting off funding, which rarely happens.
So if the President cannot control the federal bureaucracy, then no one can. That is the real threat to checks and balances in our system.
In saying the above, I am not claiming to know what Trump wants or what will happen. Only that there is another huge issue at stake that has been ignored for the last century.
I encourage you to read Bruce Ackerman's books. They make the case for discontinuity better than I can (because they are books, not short essays, and because his knowledge of the field is vastly greater than mine), and they're a great read.
Whatever it turns out to be, ‘benign’ won’t be the descriptor.
Well yeah