Letters from an Ohio Farmer

Constitutional Letter and Constitutional Spirit

To the Members of the 112^th Congress:

From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government.  It was gratifying, then, to hear the Attorney General say in a recent speech that "our actions must always be grounded on the bedrock of the Constitution." 

The particular action the Attorney General was referring to was the execution of an American citizen without trial, solely on the order of the President of the United States.  On the face of it, nothing could seem less constitutional or legal.  The Constitution is the framework, the set of rules, that prescribes what the government may legitimately do in a regime dedicated to securing the rights of life, liberty, and the pursuit of happiness for its citizens.  These rights exist before and outside the Constitution; the Constitution is meant to serve and preserve them.  We never cede them to the government and we cannot be deprived of them without what the Constitution calls due process, which includes trial by jury. 

How then could the Attorney General claim that it was constitutional for the President to authorize the execution of an American without trial?  I have neglected to mention that the American executed was a terrorist, an American citizen "intent on murdering Americans" and taking a leading role in plotting such murders, as the Attorney General put it.  Moreover, the citizen carried on this plotting in places where it was not feasible to capture him for trial.  In such cases, when the threat to Americans is imminent, the courts have ruled that the normal procedures of due process do not apply.  In this case, "after a thorough and careful review," the President authorized the execution.  According to the Attorney General, citing Supreme Court decisions, this review met the constitutional requirement for due process, and such review will pass constitutional muster in other similar cases involving American citizens.

But how do we know that the American was a terrorist intent on murdering Americans?  The executive decided he was.  The executive branch acted as judge, jury, and executioner.  It thus exercised the powers of the judicial, as well as the executive branch.  A fundamental tenet of our Constitution is that limiting the power of the government to protect the rights of citizens requires separating the powers of government.  In grounding executive action on Court rulings, the Attorney General ignored the spirit of the Constitution.

What evidence did the executive rely on to order the execution of an American citizen?  It relied on intelligence, which includes what a court would call hearsay and would not allow in a trial.  We also know that intelligence may be wrong.  Was it wrong in the case the Attorney General refers to?  We do not know.  Nor will we know in future cases because intelligence is secret.  Not only is the Attorney General advocating a process that nullifies the separation of powers, he is advocating a secret process that defies our tradition of open trials.

The Attorney General assures us that we should not be concerned.  The executive branch orders executions only under "robust oversight."  Congress provides the oversight, "in keeping with the law and our constitutional system of checks and balances."  The Attorney General's words at this point in his speech are artful.  He says that the Executive informs the appropriate members of Congress about the legal framework for its execution of citizens.   Some members of Congress are told, apparently, only of the justification of targeting in general, not of the evidence that justifies targeting in any particular case.  This would be similar to a judge explaining to a jury what the law against murder means without allowing the jury to hear any of the evidence in the case before them.  Would such a proceeding ever be thought compatible with the rights of free men?

In addition, it is the peculiar function of the judicial branch to check and balance the power of the executive branch when the rights of citizens are at stake.  Congress, especially the members of the House of Representatives elected every two years, are too close to the passions of the people, too exposed to immediate political concerns, to protect the rights of someone accused of being a public enemy.  Again, the Attorney General ignored this fundamental tenet of our constitutional system.

But the Attorney General counsels us further about the Constitution.  He admonishes us that, however disturbing the process by which the President comes to order the execution of an American citizen, however contrary it seems to our most fundamental understanding of what a citizen is due—it is necessary.   We are at war and in war "real-time decisions" must be made, as opportunity dictates.  In these circumstances, the President cannot consult; he must act.

This is true but not relevant in this case.  Again, how do we know that the American citizen to be targeted is in fact a terrorist?  The Attorney General assures us a thorough review of available information takes place before an American is executed.  This takes time.  So does collecting the information on which the review depends.  The actual execution may occur because of an opportunity that must be seized immediately, but the process that leads to seizing that opportunity unfolds deliberately over time.  In this process, is there no opportunity for the judicial branch to play its constitutional role?

Playing such a role does not require a full trial.  In 1978, Congress passed a law that established judicial review of the executive branch's surveillance of individuals, including American citizens, in certain national security cases.  This judicial review is carried out without a trial, and has been done with secrecy and dispatch.  If judicial review is necessary and possible before an American falls under surveillance, should it not also be necessary before he falls under the gun?

It is good that the Attorney General should acknowledge the Constitution.  But it would be better if he and the executive branch were guided by its spirit.

Ohio Farmer

Enlightened and Patriotic Councils

To the Members of the 112^th Congress:

As we search for ways to restore constitutional self-government, our attention gravitates to questions of war and peace. Nothing is more urgent for a country than such questions, and yet what the Constitution says about war powers has been a source of controversy for almost as long as America has existed as a sovereign country.

The controversy seems to be rooted in the nature of the war power itself. What kind of power is it?  The political thinker John Locke, often consulted and quoted by the American Founders, wrote that "legislative power" is the power of a people to make the "established, settled, known law, allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them." As we know, Article I gives Congress "all legislative power herein granted." At the same time, Article II vests the president with the "executive Power," which is the power to give the law what Locke calls its "due execution." Is the war power a legislative or executive power?  

The Founders' answer seems to have been "neither" – or "both." Besides the legislative, executive, and judicial powers that we are all familiar with, there is another power of government that Locke describes as the "federative power." This "contains the power of war and peace, leagues and alliances, and all the transactions with all persons and communities [outside] the commonwealth." The federative power is something like the broad power of dealing with foreign affairs as a whole.

Our Constitution appears to divide what we might call the foreign affairs power – of which the war power is a part – between Congress and the president. On the one hand, Article I gives Congress the power to regulate commerce "with foreign Nations," "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations," and, of course, "[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

On the other hand, in Article II the president is "Commander in Chief of the Army and Navy of the United States," has "Power, by and with the Advice and Consent of the Senate, to make Treaties… and appoint Ambassadors, other public Ministers and Consuls," and "shall receive Ambassadors and other public Ministers."

So Congress generally seems to have the aspects of the foreign affairs power that are legislative in character while the president has those that are executive in nature. That is, Congress has the powers that relate to making rules that govern the legal status of the U.S. or its citizens vis-à-vis other countries. At the same time, the president's foreign affairs powers concern matters that, as Alexander Hamilton says in Federalist 70, require "[d]ecision, activity, secrecy, and dispatch."

When we are trying to understand a particular application of the war power, then, and where the letter of the Constitution does not resolve the issue, the principles of the Constitution seem to invite us to ask: Is this exercise of war power legislative or executive in character? For example, if the president were to use American troops in such a way as to initiate hostilities against another country, under the law of nations he would be changing the legal status of the U.S. in its relations with that country from peace to war, which is a legislative power that he does not possess. But as James Madison said at the Philadelphia Convention, if the president were to use troops to "repel a sudden attack," he would be using a power that requires "decision" and "dispatch," which could only be done by an executive.  We could use this same standard to judge many other exercises of the war power by the president and Congress.  

This standard might have helped Congress and the general public, for example, give more serious constitutional consideration to the President's actions in Libya some time back. Most of the criticism focused on whether the military intervention was wise, not on whether the President had the constitutional power to intervene without authorization from Congress. However delicate or difficult such questions may be, our most basic civic responsibility seems to oblige us to address them.

Contrast our relative silence with the constitutional seriousness of President James Madison's appeal to Congress and the American people concerning war with Britain in 1812. Madison did not decide the issue himself; he knew that he did not have the power. More importantly, he knew that the people and their representatives needed to have open constitutional deliberation on such a momentous question. Self-government required it. Here are his words:

Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events… is a solemn question which the Constitution wisely confides to the legislative department of the Government. In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation.

In our efforts to revive constitutional self-government in America, we – Congress and the American people – certainly must focus, as have many of these letters, on the proper foundation and extent of the federal government's powers in domestic affairs. But we must also strive to be "enlightened and patriotic councils" in constitutional questions of war and peace – none are more fundamental to our freedom.

Ohio Farmer

 

Caesars or Presidents

To My Fellow Citizens:

We have noted in these letters that the modern presidential campaign has become a long, long job interview, which favors applicants who are good at running for president but not necessarily those who are good at being president.  A vetting process that favors those who are good at electoral politics over those who are merely good at governance is obviously detrimental to America’s republican experiment. Serious as that problem is, it seems to me that the danger to constitutional government from modern presidential politics goes even deeper. 

We are about to observe the 100th anniversary of the presidential campaign of 1912.  That campaign stands as a key dividing line in American political history. Former president Theodore Roosevelt's electrifying campaign in 1912 as the nominee of the Progressive Party signaled the dawn of a new political era—the one we still live in. To get an idea how momentous was the change wrought in the 1912 campaign, it suffices to reflect that, in decisive respects, that campaign had a lot more in common with the 2008 presidential election than it did with the election of 1908. 

The core difference is that before 1912, presidential campaigns were conducted more by political parties than by individual candidates appealing directly to voters, and following a successful campaign, the president governed more as head of a party, as well. Teddy Roosevelt lost the 1912 election, and the Progressive Party never again really mattered, but its spirit—its Caesarian impatience with the mediating institutions of political parties and constitutional checks and balances—came to define the political framework America lives in to this day.

It is not simply, then, that we have different kinds of candidates than we did before 1912, but that they are running for a different kind of presidency.  TR urged Americans in 1912 to regard the president as "the steward of the public welfare."  This Caesarian conception of the presidency will not hesitate for a moment to ride roughshod over the impediments of constitutional government limited to securing the natural rights of the governed.

President William Howard Taft finished third behind TR and the 1912 Democratic nominee, Governor Woodrow Wilson of New Jersey.  Taft, as a result, has the unfortunate distinction of being the only American president to run for reelection and not receive even the silver medal for coming in second.  (He has the happier distinction of being the only president also to serve as the U.S. Supreme Court's Chief Justice, thereby heading two of the three constitutional branches in the course of a public career.)  Taft's defeat was not just a personal rebuke but a setback for the cause of preserving, as he put it, "all the checks and balances of a well-adjusted democratic, constitutional, representative government."  One hundred years later, the Tea Party's exertions argue that this cause is not defunct, while the Tea Party's grave challenges argue that the restoration of a constitutional order that has been ceding ground for a century will be, at best, an arduous endeavor.

It would be helpful, in that work, to have presidents who secured and held office with the circumspection that comes with being a guardian of the constitutional order, rather than the imperiousness that suits the "steward of the public welfare."  One of the consequences of 1912, however, is that the former kind of politician is less likely today to seek and win the presidency, and the latter is more so. 

As late as 1952, Dwight Eisenhower could "announce" his candidacy for the Republican presidential nomination with a single sentence in a letter that was made public while he was serving as NATO commander in Paris.  After stipulating that "under no circumstances" would he seek a political nomination, Ike wrote, "Of course, there is no question of the right of American citizens to organize in pursuit of their common convictions."  That opaque truism was all it took to send the signal: Eisenhower would run for president if the Republicans drafted him as their nominee.  The next year he took the oath of office.

It is impossible to imagine any presidential aspirant today even feigning such reticence.  It is quite telling that while politicians in the 19th century were said to "stand" for public office, the accurate formulation favored since early in the 20th century is that they "run" for office.  Every four years they run farther and faster. 

The rules of the game now require those who seek the presidency to: raise tens of millions of dollars in increments limited by law; spend the better part of two years giving speeches, shaking hands, and participating in debates and town hall meetings; and subject every detail of their personal and financial lives to inhuman scrutiny.  Little wonder that such a process attracts campaigners with Caesarian ambitions and the "arts of popularity" more than "characters preeminent for ability and virtue," as the Founders had hoped.

If we are not happy with that political process and its results – and we shouldn't be – we need to change them.  It won't be easy or quick, but it will be worth the effort—to ensure that the White House is not occupied by a Caesar but by a President who understands that he is filling a constitutional office that works within and respects "all the checks and balances of a well-adjusted democratic, constitutional, representative government."

Ohio Farmer

The Sense of the People

To the Members of the 112th Congress:

In the negotiations over increasing the national debt ceiling, one fact is so obvious it has barely been mentioned: America has a government that can be, and currently is, divided. A Democratic president and Senate majority leader sit at the table with a Republican Speaker of the House.

Were the configuration otherwise, as it was between the 2008 and 2010 elections when Democrats controlled the House of Representatives as well as the Senate and the presidency, the debt ceiling debate would probably not be taking place at all. When Democratic majorities in both houses of Congress passed an increase in the debt ceiling in 2010, Republican legislators made some critical speeches but the bill moved swiftly to President Obama's desk for signature.

The possibility of divided government inheres in a constitutional republic where both houses of a bicameral legislature and the head of the executive branch are all elected by the people, but not by the same people at the same time. As our civics textbooks teach us, each Representative is elected for two years by voters in one of the 435 congressional districts. Senators are elected every six years, state-by-state. Because those six-year terms are staggered, only one third of the Senate faces the voters in any given election, while the entire membership of the House does. Presidents are elected every four years by the entire, constitutionally organized, national electorate.

Divisions like America's could never occur in a parliamentary democracy where the people elect the entire legislature at once. The party that wins a majority forms a government, and the prime minister – a member of the legislature, as are all the cabinet members – submits legislation that his party invariably passes. Such systems have been described as "dictatorships punctuated by elections."

More than a century ago, the American Progressives began their historic assault on our constitutional system, yearning for the clarity and dispatch of a parliamentary system. Woodrow Wilson, for example, sought sweeping reforms that would "make self-government among us a straightforward thing of simple method, single, unstinted power, and clear responsibility." H.L. Mencken, Wilson's contemporary, offered a less celebratory expression of the same idea: "Democracy is the theory that the common people know what they want, and deserve to get it good and hard."

One strand of the political philosophy woven into the Constitution is that sometimes the people don't know what they want, and other times they think they do, only to wind up regretting their "settled" opinions after some reassessment. The Constitution's authors believed, as one of them stated in Federalist 63, that "where the concurrence of separate and dissimilar bodies [such as the House and Senate] is required in every public act," the republic is best prepared to navigate "particular moments in public affairs when the people . . . may call for measures which they themselves will afterwards be the most ready to lament and condemn." The objective, as we have had several occasions to observe in these letters, is that "the cool and deliberate sense of the community" will "ultimately prevail."

Each party would clearly prefer to deal with the debt ceiling, and the nation's long-term fiscal problems, on its own terms, with both houses of Congress and the presidency under its control. If the Democrats had their way, that would mean higher taxes, especially on the rich; more borrowing, especially until the unemployment rate is much lower; and few spending cuts, especially from domestic programs. If Republicans controlled both ends of Pennsylvania Avenue, they would emphasize spending cuts, especially to domestic programs; less borrowing; tax reforms to apply lower, simpler tax rates to a broader, more vigorous tax base; and regulatory reforms to stimulate economic growth.

Which approach best reflects "the will of the people"? That may be a question that doesn't, at least for the moment, really have an answer. It's not as though either party's philosophy has been hidden over the past years, or undergone profound changes. The voters knew what they were getting when they gave Republicans control over all the federal elected branches from 2002 to 2006, and then when they disliked the results, and chose to check a Republican president with a Democratic House and Senate. The voters knew, or should have known, what they were getting when they empowered Democrats to run everything in 2008, and then again two years later when they decided to return the Republicans to a majority in the House to curtail the Democrats' policy-making latitude.

It would be fair to say, in other words, that the electorate has serious misgivings about both the Democrats' "big government" approach and the Republicans' "limited government" one. After signing up for either, the people quickly succumb to buyer's remorse and avail themselves of the opportunity to weaken or impede the "mandate" they conferred an election or two ago.

Americans didn't used to hedge their political bets this way. From 1900 to 1980 the White House, Senate, and House of Representatives were controlled by the same party for a total of 56 years, 70% of the time. Those 56 years included 14 consecutive years of Democratic control, from 1932 to 1946, when the New Deal was launched, and eight more from 1960 to 1968, which saw the beginning of the Great Society.

By the time the ballots from the 2012 election are counted, the same party will have controlled both houses of Congress and the presidency for only 8 of the preceding 32 years, or 25% of the time. This new era, in which divided government is the rule rather than the exception, was ushered in by the election of Ronald Reagan to the presidency, and GOP victories that gave the party its first Senate majority since 1954.

It's hard to believe that these two developments – the emergence of a credible conservative opposition to the governmental activism promoted by FDR and LBJ, and the beginning of a long era in which partisan majorities are rare and transient – are coincidental. Roosevelt and Johnson spoke to and for an American majority that liked the benefactions big government bestowed. Reagan spoke to and for a majority grown skeptical about the taxes, borrowing, and regulatory intrusions big government required.

That skepticism was sufficient to slow the growth of big government, but not to dismantle the New Deal/Great Society. For the past thirty-one years the American people have straddled an untenable position: voting in favor of most of what big government does, but against most of what big government requires. The debate in Washington over the debt ceiling is an echo of the debate, across America, over the proper scope and cost of government, a debate that seeks a resolution it has not yet found. The cool and deliberate sense of the national community will ultimately prevail, but it must first settle on one or the other of two alternatives that are fundamentally opposed.

Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

The 2012 elections loom in the near distance, and the presidential race could well be tighter than in 2008. So pundits, professors, and some politicians express concern, as they do every four years, that the candidate who wins the majority of the national popular vote might not win a majority of the Electoral College vote. I know this is a mathematical possibility; I think it has happened four times in 56 presidential elections. But does this possibility somehow violate the principles of fundamental fairness, disenfranchise the American voter, and bring disgrace to American democracy?  This is what is alleged every four years by those who advocate overturning the Electoral College. 

By the testimony of the Framers of the Constitution themselves, designing the office of the presidency was the most difficult task they faced. They began with the idea of having an executive chosen by the national legislature; they considered having him chosen by state legislatures, state governors, directly by the people, by special electors, and by various combinations of these methods. The mode of selection was a question inseparable from other questions: what powers to be granted to the office, the term of office, the question of reeligibility, whether the executive should be single or plural. These questions were also related to the foundations, powers, and structures of the other branches. And all these questions were related to the overarching question of how to construct a government that would best secure the safety and happiness of the people. 

After weeks of deliberations, the Framers came up with a mode of selecting the president that has managed to provide for the relatively seamless transition of government for over two hundred years.  Aside from this commendable record, the Electoral College seems to have other desirable effects. It discourages regional parties, moderating local interests by inducing them to seek a national and federal base; it provides protections for minorities, beneficently affects the character of majorities formed in selecting a president, and makes the president beholden not to the passions of a numerical majority, but to the Constitution.  In all these ways, the history of the Electoral College has justified Alexander Hamilton’s conclusion that, if this mode of selecting a president is not perfect, it is nonetheless "excellent." 

Dismissing all these interesting ingredients of our constitutional politics, opponents of the Electoral College demand simple national majoritarianism in the selection of our presidents.  But they recognize that they do not themselves have the constitutional majority necessary to amend the Constitution.  So, with no apparent sense of irony—dubbing themselves now the “National Popular Vote” movement (NPV)—they have devised a way of nullifying the Electoral College by substituting a constitutionally dubious, potentially minority vote for the constitutional majority required in the amendment process.  The NPV has launched a movement to persuade states representing 270 electoral votes—the number it takes to win the presidency under the current electoral college system—to agree through a “compact” to award all their electoral votes to the presidential candidate who wins the popular vote nationwide.  

Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington state, and the District of Columbia have already agreed to this compact. A bill to make California part of the compact (AB 459) has just been approved by the California legislature and awaits the signature of Governor Jerry Brown. If California’s 55 electoral votes are to be added to the compacting states, they will be about half way to the 270 votes needed to activate the compact. In each of the states participating in the compact, the majority vote of the states’ citizens is to be dismissed—or, actually, reversed—if it disagrees with the majority vote of the nations’ citizens. If a candidate wins a state but loses the national popular vote, this compact requires the state to allocate its electoral votes not to the candidate who wins in the state, but to the candidate who loses—some democracy!  

The NPV seeks constitutional authority for its effort in Article II, Section 1, of the Constitution, which says regarding the election of the President:  “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”  Their ambitious reading of this article shows the respect for the Constitution that one would expect from a movement seeking to undermine the constitutional requirements for elections by circumventing the constitutional requirements for amendments. 

As to Article I, Section 10, of the Constitution, dealing with interstate compacts, the National Popular Vote movement dismisses it as irrelevant. This is what the Constitution says:  “No State shall, without the consent of Congress…enter into Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” (emphasis added). But the NPV argues that their “compact” is none of Congress’s business.  Do you think presidential elections are none of your business? 

We Americans are a constitutional people. From the beginning, we insisted that our politics must be answerable to the consent of the governed, and we devised constitutional ways of constructing and shaping our authoritative consent so that our choices would not reflect mere willful majorities but would reflect the cool and deliberate and just sense of the community.  If we are to change the electoral system in a fundamental way, we should engage, not in constitutional trickery, but in the constitutional deliberation provided for the purpose—as we have done several times in the past.  We should always be skeptical of attempts to circumvent provisions very deliberately put into the Constitution, just because a loud interest group of the moment finds them inconvenient. Where populist passion seeks to circumvent the Constitution in order to remove a constitutional check on populist passion, we should be all the more skeptical. 

Ohio Farmer

The Just Powers of Government

To the Members of the 112^th Congress:

In the last letter, I considered why and how it is that in the American logic of freedom, the just powers of government are derived from the consent of the governed. In this letter, I am concerned with a current development in our politics that threatens dangerously to remove our government from our consent. If the letter seems painfully burdened with acronyms, please forgive the fact as a vice inseparable from the subject.

Several lawsuits have been filed against the Patient Protection and Affordable Care Act (PPACA or "Obamacare") since it was enacted in March 2010.  The ones that have worked their way into the federal court system so far contest the law's "individual mandate," which subjects people to monetary fines if they fail or refuse to enroll in a health insurance policy.  The lawsuits' question, which the court and the people must consider, is whether the legitimate powers of the federal government respect or traduce the inalienable rights of the people by requiring them to buy a financial product from a private vendor.

One lawsuit against PPACA raises a different and equally important question: Does the law violate the constitutional principle of separation of powers?  The Goldwater Institute challenges, specifically, the constitutionality of PPACA's "Independent Payment Advisory Board" (IPAB). The Board is the law's chief mechanism for bending the medical cost curve downward by reducing the growth rate of Medicare outlays to the rate at which the Gross Domestic Product increases, plus one percent.  IPAB's 15 members will be appointed by the president and confirmed by the Senate.  Since it won’t adjust the premiums or deductibles paid by Americans enrolled in Medicare, IPAB's power derives from its mandate to set the rates at which Medicare reimburses doctors for the various services or procedures they perform.

IPAB's power is buttressed by PPACA's extraordinary protections for it, whose constitutionality is at issue.  Even though IPAB is an executive branch agency, its "legislative proposals" – the PPACA uses the term repeatedly – become law unless Congress passes a bill that cuts medical spending by an amount equal to the IPAB proposal. They become law, that is, if Congress does nothing.  If Congress tries to do something, its alternative can prevail over the IPAB proposal only if the former garners a three-fifths majority in the Senate.  The law makes no provision for citizens, such as doctors, to challenge IPAB's determinations administratively or judicially.  Furthermore, PPACA asserts the right to dictate what future Congresses may do, and when: IPAB can only be abolished, according to its provisions, by legislation introduced and enacted between February 1, 2017 and August 15, 2017.  Even if enacted in that small window, the abolition cannot take effect until 2020.

Peter Orszag, President Obama's director of the Office of Management and Budget at the time PPACA was enacted, said, "I believe [IPAB] is the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve."  He was speaking approvingly.  Democratic congressman Pete Stark, who got a 90% rating from the liberal Americans for Democratic Action in 2010, made the same point about IPAB far less fondly, calling it "an unprecedented abrogation of Congressional authority to an unelected, unaccountable body of so-called experts."

In a nation founded upon the principle that governments derive their just powers from the consent of the governed, the decision by Congress to yield so much of its sovereignty to an unelected, unaccountable body is really a decision to yield the people's sovereignty for them.  Thus, if PPACA withstands all its challenges in federal courts, an outraged public could elect a ferociously anti-IPAB Congress in 2012 and 2014 – to no avail whatsoever.  The Board remains beyond the voters' reach until after the 2016 elections – and then only for a 6½-month period, after which the door slams shut again, bolted against meddling by mere citizens for the duration of the republic.  

Like most bad ideas, IPAB is the elaboration of a less bad idea.  Its predecessors include such bodies as the Base Realignment and Closure Commission, which drew up lists of military bases for the Pentagon to close, lists that Congress could accept or reject in their entirety, but could not add to or subtract from.  If Congress did nothing, the BRAC proposal was enacted. 

"Stop us before we pander again," seems to be the legislative principle embedded in these commissions.   Or do you think that is an unfair assessment?  It seems to me that when Congress voluntarily surrenders some of its legislative power to a commission, it is admitting that rendering good government as good politics is too daunting and risky.  Wise and judicious policies, you seem to be saying, might prove to be too hard to explain to the voters; or they might be criticized by a political opponent in a 30-second television ad.  Better, then, to leave the tough calls to commissioners who derive their powers from the consent of the governed in arcane, impenetrable ways.  

Once entrenched, it is doubtful that government of the people by the commissions will ever be dislodged.  The threat comes not only from the prospect that the commissioners' power will tend to corrupt them, but from the citizenry's passive acquiescence in the attenuation of their own sovereignty.  At the heart of the American experiment is the belief that democratic government can also be good government.  If it turns out that only philosopher-kings, benevolent dictators, or unaccountable experts can provide good government, the experiment will have failed. 

IPAB, then, is not just outrageous, it is contemptible.  By out-sourcing its legislative power Congress is saying that it doesn't trust the people to make wise decisions, and doesn't trust itself to explain such decisions to them.  If IPAB stands unchallenged, the American polity will have suffered a grievous blow.

Ohio Farmer

The Lost Art of Legislation

To the Members of the 112^th Congress:

One of the head-scratching moments of the congressional debate leading up to the passage last year of the Patient Protection and Affordable Care Act (otherwise known as “Obamacare”) was then-House Speaker Nancy Pelosi’s response when asked about the contents of the 2,000-page draft law [see Ohio Farmer Letter, "Reconstitutionalizing America"].  You recall that Speaker Pelosi said, “We have to pass the bill so you can see what’s in it.”  She was not alone with this thought.  Senator Max Baucus, chairman of the Senate Finance Committee that had key jurisdiction over the health care bill, said something similar: “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language.  We hire experts.”

Both comments generated considerable ridicule, especially from people who opposed the legislation.  But both comments bring to light a fundamental fact of modern American government: Congress no longer “legislates” (that is, passes binding universal laws) in the way the Founders intended when they wrote the Constitution.  Instead, Congress passes general statutes containing policy goals, but delegates the power to write the actual operating laws to executive branch administrators and independent agencies.  In practical terms, this means that the executive branch and independent administrative agencies, rather than Congress, actually determine the details—the real law as it will operate on citizens.  This might be acceptable except that the process of administrative government is increasingly arbitrary, and arbitrary government is the very definition of lawlessness. 

Some short sections of the health care law will require hundreds of pages of detailed regulations, which administrative experts are going to spend the next several years working out.  Sen. Baucus is right: the statutory language does not tell you how the law will operate in practice.  The 2,000 page statute will grow to perhaps 30,000 pages by the time the administrative agencies finish filling in the blanks.  Here is another wrinkle: the health care law shows that Congress is now passing “laws” that cannot take effect as written, because they are so woefully incomplete.

Two recent news items highlight this problem.  First, the health care law contains a number of mandates on insurance companies and businesses intended to correct what are widely regarded as abuses of the private marketplace for insurance and health services.  Yet the Department of Health and Human Services is handing out “waivers”—exemptions from the letter of the law—like Halloween candy to labor unions, big businesses (McDonald’s), small businesses (boutique restaurants in San Francisco), and several of the large insurance companies who are thought to be part of the problem.  The health care law’s waiver process is like telling the traffic police that they get to set a “safe” speed limit, but then allowing them to decide that different motorists get to drive at different speeds.  We’re no longer equal under the law when a government administrator can decide who has to obey a law and who doesn’t.  Prior to this moment, federal government waivers tended to be applied only to state and local governments in their implementation of federally-funded programs like welfare or highway construction or public education.  Now the government is extending waivers to private citizens and their businesses, treating equal people unequally.

The second news item ringing alarm bells is the decision of the National Labor Relations Board (NLRB) ordering the Boeing aircraft company to build its new Dreamliner airplane in Washington state, rather than South Carolina, where Boeing has already spent over $1 billion building a new assembly line for the Dreamliner [see Ohio Farmer Letter, "The Spirit of Checks and Balances"].  The NLRB based its decision on a clause in the Wagner Act that says private companies may not “retaliate” against labor unions, and argues that locating aircraft production in a non-union state amounts to “retaliation” against the unions that have struck Boeing three times in the last decade in Washington state.  The “retaliation” clause has never been interpreted this way before; and, in any case, we should be asking why an independent agency—the NLRB—gets to enforce the law, rather than the Justice Department, an executive department politically accountable to the President, working through the ordinary federal court system.   The NLRB was set up to provide labor unions a privileged position in our legal order, but it means that any company might be prohibited from moving or expanding from a unionized state to a right-to-work state.  It is doubtful Congress meant the statute to be construed this way when it was passed, or that any Congress would consent to such a construction.  As a practical matter the Boeing case is likely to be isolated, but that just makes the Boeing precedent all the more troubling, as it reveals our labor law to be arbitrary.  And the NLRB is hardly alone in this style of unaccountable government that blurs the separation of powers between the branches.  The Environmental Protection Agency operates in a similar fashion, and the new financial regulations of the Dodd-Frank law passed in response to the banking crisis of 2008 will also be determined by the administrative organs of government.

It may be necessary for Congress to delegate the working out of many details to administrative agencies.  But this practice has come with the high cost of degrading the deliberative function of Congress’s lawmaking power.  The easy delegation of the details is why many large laws are rushed to passage in a less than transparent manner.  True debate and deliberation has atrophied.  This slow abdication of legislative responsibility on the part of Congress started many decades ago, and is no simple matter to fix.  As a general principle members of Congress ought to refuse to vote for statutes that delegate large amounts of the real lawmaking to another branch.  If the health care law’s perverse consequences (such as the possibility that, without a waiver, McDonald’s would have had to drop health insurance for all its employees) were laid at the feet of Congress, then Congress would write laws more carefully, or move more quickly to amend them as they should.  In one word, is this not a good occasion for Congress to assume more responsibility for its actions?

Ohio Farmer

The Spirit of Checks and Balances

To the Members of the 112th Congress:

Senator Harry Reid of Nevada recently stated that the National Labor Relations Board, the regulatory agency established by the 1935 National Labor Relations Act, was “created in the same spirit of checks and balances” as the U.S. Constitution itself. NLRB “acts as a check on employers and employees alike,” said Reid. “It safeguards employees’ rights to unionize or not to unionize, if they so choose, it mediates allegations of unfair labor practices, and it does all this independent of any outside influence.”

Reid was defending NLRB’s decision to issue a complaint against Boeing, the aircraft manufacturer, for opening a new production facility in South Carolina to produce its latest commercial aircraft, the 787 “Dreamliner.” The NLRB filed its complaint, which is similar to an indictment in criminal court, because its acting general counsel contends that the company decided to open the South Carolina plant in order to threaten the International Association of Machinists, the union representing workers at Boeing’s 787 plant in Seattle, Washington.

The reasoning is that Boeing was attempting to punish IAM for going out on strike in the past, and intimidate it from going out on strike in the future, by opening a new facility to produce the 787 in a state where only 2.8% of private-sector employees are union members. Such an action, the complaint alleges, unlawfully discriminates against those Seattle workers represented by the union. Demonstrating a nice gift for irony, NLRB insists that it does not seek to prohibit Boeing from running its South Carolina factory, only to prevent the company from illegally intimidating IAM. The NLRB remedy, however, is to require Boeing to open and operate a second, unionized 787 factory in Seattle – one that would, of course, turn the non-unionized plant in South Carolina into a hugely expensive redundancy.

Reid’s argument could be considered a faint, though distorted, echo of the assertion in Federalist 51 that the Constitution’s “policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” In classical economic thought, of course, the defect of better motives in private affairs is supplied when individuals seeking their own benefit wind up inadvertently improving the lives of others by offering goods and services that are of higher quality or sold at lower prices than those provided by their competitors. As Adam Smith wrote in The Wealth of Nations, “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our necessities but of their advantages.”

When he suggests that it is a logical extension of the American founding to have a government agency tell a company where it may and must locate its factories and offices, Reid is reflecting the New Deal idea that market competition was no longer a sufficient restraint on powerful industrial enterprises. The economist John Kenneth Galbraith argued for the same view in American Capitalism: regulatory agencies and labor unions imparted to our economic system the benefits of “countervailing power.” Such entities would offset the dominance of giant corporations in markets that were, Galbraith argued, theoretically but not effectively free.

Galbraith and Reid notwithstanding, for a federal agency to lay the groundwork to order a private company to build its products here and not there is contrary to, not consistent with, the logic of the American founding. For one thing, the Constitution protects both the ability of the individual states to govern their internal affairs, and the free flow of commerce between the states. States are prohibited, for example, from levying duties on goods “imported” from other states of the Union. The Constitution was, in this sense, the original North American Free Trade Agreement.

When Congress amended the National Labor Relations Act in 1947, it explicitly authorized state governments to enact “right-to-work” laws, which stipulate that private employers may not fire employees who refuse to join a union or pay union dues. Since a labor union is a kind of cartel, where sellers of labor agree not to compete against one another, right-to-work laws have generally had the intended effect of preventing unions from forming and growing. Since 1947, twenty-two states, including South Carolina but not Washington, have enacted such laws.

Since right-to-work provisions are legal, and the free flow of commerce between states is constitutional, it’s hard to see how the NLRB’s proposed course of action can be wise. If the agency winds up forcing Boeing to build production facilities in Washington, when the company would rather build them in South Carolina, it will nullify Boeing’s right to choose how to run its business, and South Carolina’s right to choose how to run its state.

There are other problems with Reid’s position. Although the Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States,” Reid means to restrain Congress when he describes NLRB, an entity created by Congress, as an agency that does its work “independent of any outside influence.” The outside influence he resents is Congress itself, or at least its Republican members. For Republicans in Congress to object to NLRB’s course of action concerning Boeing is “inappropriate … disgraceful and dangerous.”

Reid does not, apparently, have a gift for irony. He is outraged that elected members of Congress are objecting to an NLRB inspector bringing a complaint about the violation of NLRB rules before an NLRB administrative law judge – because of the threat such political “interference” poses to the “spirit of checks and balances.” The genius of the Constitution was to separate legislative, executive, and judicial powers. The genius of the New Deal was to combine them in agencies whose employees and friends want to keep them independent from – politics. Independent, that is, of democratic self-government. Independent, in other words, from the people.

“Which Side Are You On?” asks the anthem of the American labor movement. We know which side Harry Reid is on, and it isn’t James Madison’s.

Ohio Farmer

Civility and Powers

To the Members of the 112^th Congress:

"Civility" has been a word to conjure with for the past few weeks. Since the terrible killings and woundings in Tucson, Americans could hardly open a newspaper or turn on a television without someone shouting at us most uncivilly in the name of civility. In the name of making us all friends, "civility" is wielded as a cudgel would be wielded against hated enemies. The word is deployed as a weapon, the way "bipartisanship" has sometimes been deployed in the service of the most narrow and unseemly partisanship.

Citizens' eyes roll and glaze over at such unserious and trumped up scolding. But civility is a serious theme. We want civility in our civil discourse because, in the language of the founders, we want reason and not passion to govern our affairs. We insist that we will be ruled by the consent of the people, and we are aware at the same time that the people can become a mob. And so, as the last letter observed, we have devised "constitutional ways of constructing and shaping the authoritative consent of the people" so that the "cool and deliberate sense of the community" might prevail in our political deliberations.

Among the constitutional devices intended to help achieve this difficult and desirable result, separation of powers ranks high. This idea, "that the legislative, executive and judiciary departments ought to be separate and distinct," is (let us hope!) familiar to every American eighth grader; let us even be so immodest as to say that it is an essential American contribution to the advancement of constitutional governance.  Separation of powers was so important to the founders that they thought, in James Madison's words, that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny." But I won't rehearse here what (I trust) we all have learned on the subject from fondly remembered grammar school teachers.

In the spirit of renewed attention to the Constitution that distinguishes this Congress, I will hope merely to observe something that may not be quite so obvious and may have a bearing on Congress's response to current challenges. Put simply, in our Constitution the branches are separate, but they are not equal: the vast preponderance of federal authority is delegated to Congress, which is without question the preeminent branch under the Constitution.  One reason this may not be as obvious as it should be just by reading the Constitution is that, over the last fifty years, the separation of powers has tilted a bit out of constitutional balance. The presidential and judicial branches have become assertive and bold in articulating the national agenda, and Congress has largely deferred to this (or to the bureaucracy), sometimes in an effort to avoid difficult or potentially unpopular actions. Think of the fact that we call the recent historic elections "midterm" elections, as if Congress is a sideshow and the Presidency is the main event.

In our Constitution, Congress is the main event, and our separation of powers will serve us better if Congress is not as deferential as it has become accustomed to being (whether to the executive, the judiciary, or the bureaucracy). Let Congress reassert the lawmaking preeminence and responsibility intended for it in the Constitution--initiating constitutional conversations, setting out an agenda which is not necessarily the President's or the Court's, overturning what the members may consider to be the wayward actions of the other branches--and our constitutional deliberations as a whole will benefit.

I hasten to add, lest "irrational exuberance" seize the day, that when Congress acts boldly and takes the legislative initiative the Constitution intends for it to take, members should do so on behalf of their constitutional duty and not for mere party advantage, and they (and we) should hope and expect to find that the executive branch and the judiciary will rise to resist any assertions that seem to them unacceptable, behaving just as is intended in the Constitutional design. This proper functioning of the separation of powers (aided by the checks and balances within Congress) is meant to impede the misuse of Congressional power. We and Congress will display a kind of constitutional wisdom and patience, I think, if we recognize that the power to resist misuses of Congressional power is also a power that might on occasion thwart the necessary and proper uses of Congressional power.

More generally speaking, if separation of powers is designed to impede the rash introduction of radical change, it also has the effect of making it difficult to undo such change. If this Congress thinks it is its duty to do just that, let it act and give its reasons. It will meet resistance, and we all should expect that reasons will be given in turn. This is our Constitution at work. Citizens should anticipate serious argument, not just about policies, but about rights and duties, about the powers of government and limitations on those powers.  We should all learn from this, and all of this, of course, takes time.  And if our elected representatives can't sort it out, then the people, through the ballot box, will speak again, and a new constitutional deliberation, possibly with different participants, will begin.

A final word:  No constitutional devices like separation of powers--none of these "inventions of prudence," as Publius called them--will bring civility or cool and deliberate reflection from a nation of savages. So our broader constitutional deliberations should include not just civility but all the virtues, capacities, and principles that must shape the character of a people if they mean, as we do mean, to be self governing. Among the themes to include in these deliberations is the civic friendship, the care for one another, even in our millions, that could not be missed when the news of the Tucson tragedies spread across the land.

Ohio Farmer