The Tricameral Hail Mary
July 24, 2011

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This “Super Congress” proposal is really a thing of beauty. It is, after all, one thing for the Senate’s majority leader and its minority leader to jointly admit that Congress is incapable of governing; it is quite another thing for them to do that and then offer up a “solution” that is really no solution at all.

Under a plan put forth by Senate Minority Leader Mitch McConnell (R-Ky.) and his counterpart Majority Leader Harry Reid (D-Nev.), legislation to lift the debt ceiling would be accompanied by the creation of a 12-member panel made up of 12 lawmakers — six from each chamber and six from each party.

Legislation approved by the Super Congress — which some on Capitol Hill are calling the “super committee” — would then be fast-tracked through both chambers, where it couldn’t be amended by simple, regular lawmakers, who’d have the ability only to cast an up or down vote. With the weight of both leaderships behind it, a product originated by the Super Congress would have a strong chance of moving through the little Congress and quickly becoming law. A Super Congress would be less accountable than the system that exists today, and would find it easier to strip the public of popular benefits. Negotiators are currently considering cutting the mortgage deduction and tax credits for retirement savings, for instance, extremely popular policies that would be difficult to slice up using the traditional legislative process.

This is both the logical endpoint of Washington’s fetish for bipartisan committees and an absolutely masterful display of deck chair shuffling. As parody, it would be hilarious; as self-parody, it’s appalling.

Consider the math of the Super Congress: it would include an equal number of Republicans and Democrats, regardless of the relative strength of each in Regular Congress. In other words: democratic elections would have absolutely no effect on the balance of power in Super Congress, ever. Not only that, but the twelve members of Super Congress would presumably need to be palatable to the leaders of both parties, and close enough to the middle to be capable of achieving consensus — otherwise, there’s no reason to believe that Super Congress wouldn’t face the same intractable gridlock that has paralyzed the Senate.

What this means is that Super Congress would fundamentally reflect a center-right Washington consensus in favor of austerity, against the social safety net, against labor, and (should, god forbid, they ever be expected to craft legislation related to national security) against civil liberties. If this is the cure to congressional gridlock, don’t act so surprised when you find yourself feeling nostalgic for the disease.

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DADT and Legislating from the White House
November 10, 2010


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Confession: At first I was sort of conflicted about Adam Serwer’s suggestion that the president repeal DADT by executive order.Obviously I recognize that the military’s policy of discriminating against its LGBT members and forcing them to live in secret is a monumental moral outrage. And I also recognize the harm done to national security by a law that demands the senseless ostracizing of capable and patriotic Americans.

So what gave me pause? Well, just two days ago I wrote a whole column decrying the imperial presidency. Like Gene Healy, I think it’s high time that we put an end to the executive branch’s practice of legislating when they don’t want to go through the legislature. I’m not entirely unsympathetic to the notion that sweeping executive orders can be necessary in times of great urgency, but I don’t know the math for calculating that urgency threshold.

Lucky for us, Serwer addresses those concerns:

During the Bush years, liberals complained about his “imperial presidency,” and so the idea that Obama should simply end the policy by fiat would seem hypocritical. But the use of an executive order to end a policy a majority of Americans, including conservatives, want to end, is no more undemocratic than Republicans’ use of procedural maneuvers to thwart an up or down vote. Republicans holding the legislative process, and the fundamental rights of gay and lesbian servicemembers, hostage to their own homophobic prejudices, would still be the greater act of tyranny.

Here’s the thing: legislation by executive order needs to end. But it’s not a problem that exists in isolation. I would argue that a large part of the reason why the modern president is so powerful is because Congress has ceded him ground, both consciously and inadvertantly. They’ve done it consciously by passing legislative abominations like the PATRIOT Act, yes, but they’ve also done it by abiding by parliamentary rules and decorum (mostly in the Senate) that have paralyzed them on most weighty matters. The president has broad latitude to legislate in large part because the people who should be doing it aren’t.

That’s the case here. At this point, Congress should be able to repeal DADT. Were there not a 60-vote threshold in the Senate, they would have already. So in this case, I think an executive order is morally permissible — even required. As queasy as I am about the unitary executive, these are the rules of the game right now. There exist certain moral imperatives which we’re required to act on using any means those rules afford us.

If Obama takes Serwer’s advice, then we’ll come back to the issue of executive orders after he does so. But any attempt to limit the president’s power to set policy must be accompanied by an expansion of Congress’ ability to fill the void.

Crossposted at the League of Ordinary Gentlemen.

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