"Now That Democrats Have Failed in Their Attempt to Remove the President from Power,

it's worth asking why they haven't seriously considered the reverse: removing power from the president."

|The Volokh Conspiracy |

Well put, by Matt Welch here at Reason. An excerpt:

The Democratic presidential field, with the notable exception of faltering front-runner Joe Biden, has been engaging in a race to see who can make the most elaborate promises of immediate executive action. Forget 100 days; we're now talking 100 hours to see what that magical Oval Office pen and phone can do.

On Day One, President Elizabeth Warren would wipe out student loans for 42 million people, ban fracking "everywhere" and block any future fossil fuel leases on public lands and offshore. We are still awaiting the full Day One list from a future President Sanders, but we know it includes an executive order to "legalize marijuana in every state in this country."

Legalizing marijuana is a wonderful and long-overdue idea, but Sanders' way of getting there is not. Federal law, including the odious Controlled Substances Act, is constitutionally required to originate from or be struck down by either Congress or constitutional amendment. A presidency with enough power to legalize Activity X irrespective of Congress or the desires of states is a presidency with enough power to criminalize that same activity when the other team wins. It's a seesaw of authoritarianism, and we should all want to get off.

Of course, Republicans generally aren't much eager to diminish the scope of executive power, either, at least so long as they have it or expect to have it. The Framers' theory was that members of Congress, because of their roles and their own political ambitions (which, for most, don't extend to the Presidency), would work to protect Congressional authority and rein in Presidential authority; alas, we haven't been seeing much of that.

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  1. Maybe we should face reality, declare the Constitution a failed experiment, and go to a Parliamentary system like England or Canada. Except for the occasional academic, nobody takes it seriously anyway, and it’s ill suited to the needs of a society 250 years after it was written.

    1. The US is the richest, most successful country since Rome. Our system has helped that by providing unmatched stability.

      France has had two kings, two empires and 5 different republic systems.

      A Parliamentary system did not help the UK avoid the Brexit mess. No system can avoid all problems.

      Mend what needs mending.

      1. Even worse than that look at the state of civil rights in Canada, England, and Europe. You can be fined or go to jail for reading Bible passages in Canada or England. France and Germany and the Netherlands all have speech codes.

        Our Constitution hasn’t been flawless in protecting our civil rights, it’s just better than anywhere else. And it seems to me Congress is just as willing as any president to trample on our civil rights, McCain-Feingold, and the Assault Weapons ban being 2 examples.

        1. Kazinski, and Bob:

          First, I did not say get rid of the Bill of Rights. I said get rid of the structural problems the Constitution has created for our polity. Keep the First Amendment.

          Second, I’ve lived in both Canada and the US, and Canada is far better run. Unlike the US, it does not have regular government shutdowns because Parliament can’t pass a budget. Or three impeachments in forty years (I’m including Nixon, because he would have been impeached if he hadn’t left town.) Or political paralysis unknown anywhere else in the Western world unless a single party manages to completely run the table two or three elections in a row. Or elected officials who are unable to keep their campaign promises because 35% of the population has an effective veto on making anything happen. Or multi trillion dollar deficits that are never going to be paid off. Just for good measure, in case you’ve forgotten, our Constitution gave us a bloody civil war only 75 years after the founding.

          What it does have is politicians who are actually accountable to the voters because gerrymandering is a practical impossibility and Prince Edward Island can’t cancel out Ontario in the Senate. Here, the Republicans know that they don’t have to care about public opinion, and it shows. Maybe having politicians who actually do have to compete for their seats isn’t such a bad thing.

          And yes, Bob, America is a great place to live if you’re rich. For the middle class, wages have been stagnant for years. Canada doesn’t have that problem either.

          1. Krychek_2 is a crank.

          2. I didn’t see a “just change the structure” in your comment. Keeping the Bill of Rights must have been in a penumbra.

          3. Canada also has a little over 10% of America’s population, and is over 70 percent white. If there were only 37 million people in this country, it would be a lot easier to run, too.

            <What it does have is politicians who are actually accountable to the voters because gerrymandering is a practical impossibility and Prince Edward Island can’t cancel out Ontario in the Senate

            This stupid complaint again? Newsflash, idiot–there are two, count them, two congressional houses in the legislature. One of them is apportioned by population, the other but state.

            The whole fucking point of establishing the Senate was so that the Ontarios of the country couldn’t, in fact, roll over the Prince Edward Islands whenever they felt like it. I realize leftists consider that to be a bug and not a feature, but really, anything that nerfs the influence of San Angeles and New York City is a positive one.

            And yes, Bob, America is a great place to live if you’re rich. For the middle class, wages have been stagnant for years. Canada doesn’t have that problem either.

            The fuck you going on about? America is a great place to live if you’re middle-class. You have literally anything you want an internet click away. You have a lifestyle that people in the same economic brackets could only dream of not even 70 years ago. GTFO of here with that class resentment nonsense.

          4. Just for good measure, in case you’ve forgotten, our Constitution gave us a bloody civil war only 75 years after the founding.

            No, idiot, “our Constitution” didn’t do that–some of the states wanted to go their own way, but a bunch of liberal Yankees decided they weren’t going to allow that.

            1. Red Rocks, you’re calling the guy who suspended habeas corpus a liberal? Now that’s funny.

              And yes, I understand the original point of the Senate. We no longer live in that America. It’s gone. Your views are completely out of touch with what a majority of Americans believe. So your real argument is this: Even though your views no longer represent the views of most Americans, you think they should be cast in constitutional concrete so that the majority of the country that disagrees with you can’t get what they want. And pardon me, but you have no such right.

              And why is it only class warfare when the poor fight back?

              1. I guess Obama wasn’t a liberal either then, given the NDAA?

                1. Oh, the idea that Obama was a liberal was always a world class howler; if he was a liberal, why did Wall Street love him so much? He was always a slightly left of center moderate. Try looking at his entire record; not just one or two cherry picked issues.

                  1. I see. Real socialism liberals haven’t been tried yet.

                    1. Dude, go visit some blogs written by people who actually are socialists and you’ll find they hate Obama almost as much as you do.

                    2. Oh pardon me, I thought you complained that Obama was not a liberal.

                      Oh wait, you did!

                    3. Actually you’re the one who seems to be conflating liberalism with socialism.

              2. What a hilarious bit of circular reasoning you’ve provided. Why do you go to the question- begging well so often?

                1. So is it circular reasoning or question begging? Can’t be both.

                  1. Begging the question IS circular reasoning, you moron.

                    1. No it isn’t, and I’ve taught logic at the college level. This is not an argument you’re going to win, so quit before you get any further behind.

                      Question begging is assuming what you’re trying to prove. Circular reasoning uses the additional step of adding a second argument and then using the two to prove each other.

                      So, for example, “We know the Bible is true because God says so, and we know God says so because it’s in the Bible” is circular reasoning. However, “We know the Bible is true because the Bible says so” is an example of question begging. The two are somewhat related, but they are different, and mutually exclusive.

                      I don’t generally call people morons, but I would recommend you know what you’re talking about before *you* call someone else a moron.

                    2. Oh, argument from authority, now, huh?

                      Fine.
                      From the UT-Martin Internet Encyclopedia of Philosophy:
                      Begging the Question
                      A form of circular reasoning in which a conclusion is derived from premises that presuppose the conclusion.

                      From the Texas State Department of Philosophy:
                      The fallacy of begging the question occurs when an argument’s premises assume the truth of the conclusion, instead of supporting it. In other words, you assume without proof the stand/position, or a significant part of the stand, that is in question. Begging the question is also called arguing in a circle.

                      From yourdictionary:
                      A form of circular reasoning, begging the question is one of the most common types of fallacies. It occurs when the premises that are meant to support an argument already assume that the conclusion is true.

                      From the Stanford Encyclopedia of Philosophy, which you clearly plagiarized in your analogy:
                      Some versions of begging the question are more involved and are called circular reasoning.

                      I may not be a glorified grad student instructor, but least I’m smart enough to actually cite my sources.

                    3. I haven’t made a NTS argument. I’ve asked you to define your term so we know if we’re talking about the same thing.

                    4. What in your sources contradicts what I said? You final one says that some forms of question begging are more involved and are circular reasoning, but quite obviously X + something else does not equal X.

                    5. What in your sources contradicts what I said?

                      Now you’re just gaslighting. Each one states that question-begging is circular reasoning. You’re arguing that they’re different, and not even citing your sources.

                    6. I haven’t made a NTS argument.

                      Red Rocks, you’re calling the guy who suspended habeas corpus a liberal? Now that’s funny.

                    7. Oh, the idea that Obama was a liberal was always a world class howler; if he was a liberal, why did Wall Street love him so much?

                    8. Dude, you’ve got the jargon down but you don’t actually understand the concepts. Saying Obama is by definition not a liberal is not a no true Scotsman argument. If he’s not a liberal then it’s irrelevant what a “true” liberal would do.

                      Think of it like this. Suppose the question is whether a true Jew would eat pork. I’m not Jewish so my conduct is irrelevant to the question. Likewise, Obama isn’t a liberal so no true liberal isn’t an issue.

                      Since you seem to disagree I offered you the opportunity to tell me how you define liberal. You responded by insulting me. Since I prefer talking to grownups I should have ended the conversation there. Since you’ve done nothing in the meantime to convince me you’re a grownup I’m going to end it now.

                    9. Dude, you’ve got the jargon down but you don’t actually understand the concepts.

                      Well, you were wrong about begging the question not being circular reasoning, so it’s not like you have much authority to leverage here.

                      Saying Obama is by definition not a liberal is not a no true Scotsman argument.

                      Except you haven’t bothered to define what you consider a liberal to be, so you’re begging the question. Regardless, Obama would probably be rather astonished at the claim that he wasn’t a liberal. You do seem to be one of those types who think that liberal = progressive, but you haven’t provided any evidence for what a liberal is, regardless. You said Lincoln and Obama were liberals, without offering evidence.

                      Since you seem to disagree I offered you the opportunity to tell me how you define liberal. You responded by insulting me.

                      You’re a pretentious prick who possesses just enough knowledge to bluff your way through a conversation with a first-year college student. Insulting you is the least you deserve.

              3. And fuckin’ LOL that a liberal wouldn’t have suspended habeus corpus in a war, or any other behavior you’d deem unacceptable in The Current Year. We have over 230 years of history going back to the French Revolution that says otherwise. Or are you going to play the No True Scotsman card there, too?

                1. I don’t think liberal means what you think it means. So perhaps you could tell us how you define liberal.

                  1. So you are going to play the No True Scotsman card. At least that’s easier than owning up to the history of your side, which wasn’t always good.

                    1. I’m still waiting for you to tell us how you define liberal.

                    2. I’m still waiting for you to stop making No True Scotsman arguments.

                    3. I haven’t made a NTS argument. I’ve asked you to define your term so we know if we’re talking about the same thing.

            2. some of the states wanted to go their own way, but a bunch of liberal Yankees decided they weren’t going to allow that.

              Amazing so many people associate the Confederacy with conservatives in this country.

              I guess your lust for liberty doesn’t extend to slavery, eh, RRWP?

              1. For someone who calls himself Sarcastr0, it’s pretty hilarious that you missed the joke.

          5. “Canada is far better run”

            Every country has its quirks. The US doesn’t have a massive chunk of the country which demands independence, and just barely refused an independence referendum (IE, the Quebec independence referendum in 1995). The US also doesn’t have the no confidence votes that Canada has, and which result in the fall of the government. Canada’s had 4 since 1970. Then there was the 2011 voter suppression scandal, and the current SNC-Lavalin affair in 2019.

            The US’s issues get a lot more press, because it’s bigger. But Canada isn’t some magic land without governmental issues.

            1. I didn’t say it has no issues. It does. I was living there at the time of the Meech Lake Accord. But overall I think their issues tend to be less paralyzing.

              And a non confidence vote is a wonderful idea. If we had that here, Trumps presidency would have lasted all of six months.

              1. The issues aren’t paralyzing. Things are continuing just fine. It’s just, once again, the US gets much, much more media attention.

                “And a non confidence vote is a wonderful idea. If we had that here, Trumps presidency would have lasted all of six months.”

                And Obama’s presidency would’ve been over in 2011. But that’s neither here nor there.

                1. What is here or there is that regardless of how it would have played out in any specific administration, once a president has lost the confidence of the American people, under our system we are still stuck with him for up to four years whether we like it or not.

                  In practice, only rarely does a prime minister lose a non confidence vote, but the option is there if needed.

          6. Well yeah I’m sure Canada is great, but I’ll point out it’s per capital income is 45,000, which is not bad, just above Germany. But that ranks in the bottom 10 of the states just below Kentucky and beating out South Carolina.

            1. And I will point out that if you take a list of the countries with the highest median household incomes, almost all of them are countries you would probably consider socialist. The United States is Number 4, behind the social democracies of Luxembourg, Norway and Switzerland. Others in the top include Australia, Canada, Austria, iceland, Denmark, Belgium, Holland, Sweden, Finland, Germany and France. There are probably local reasons why one beats out another, and of course the fact that the US has so many people in the top 1% skews the curve for everyone else.

              But the trend is clear. What you call socialism is not incompatible with doing well financially. And if you look at medium household income by state, the trend is also clear that being a red state is not good for the financial well being of the average Joe.

              1. Norway is a major petroleum exporter, and a large portion of its national wealth derives from that. Import Norwegian petroleum policies (even with their sovereign wealth fund) to the US and you’ll get major increases, so that’s not even remotely apples to apples (unless you think the anti-petroleum policies of the US are what’s holding it back, but a more socialist program won’t improve that; alternatively you may think it’s the demographics, but I expect you’d be met with armed resistance if you tried to make the US as monocultural as Norway is).

                Luxembourg is tiny, that’s like comparing NYC to another country. Amusing, but the law of small numbers kicks in here. But it also suffers from the same problem as Switzerland (also tiny, but less so at least): both are money laundering hubs. Remove the banking protections in both and you’ll see their economies falter down to German (more likely, lower, due to economies of scale) levels.

                France, Germany, Austria, Spain, even Japan and South Korea – ok, those are each large enough to not suffer from a scale issue, and aren’t known as particularly corrupt or with drastically different natural resource priorities than the US. So how are they doing? I didn’t look up any econometric figures before I made that list, because I already know enough about their policies. How are they doing per capita (or however you prefer to measure them)?

                1. Robert, you can find a way to distinguish the US from any other country that you want, but that’s not the point. The point is the pattern. And when the pattern is as clear as it is here, saying that we’re not Luxembourg or Norway sounds more like excuse making than a valid argument. It’s not just Luxembourg or Norway; almost every country that is a social democracy does better than we do. And our numbers are most likely inflated anyway because of a disproportionate number of billionaires that skew the numbers for everyone else.

                  And if you want to see an even more damning pattern, compare red states to blue states. In general (there are counter examples on both sides), blue states have more household income, lower unemployment, more education, less crime, less drug addiction, lower divorce rates and an overall better quality of life.

                  The US (or at least the 40% that lives in red states and has a veto over what the rest of the country can do) has made a policy decision that they would prefer to have millions of people suffer unnecessarily rather than raise taxes on the wealthy. Not only does that make no sense to me, I find it morally repugnant. If you want to argue against social democracy because you think freedom trumps everything else, go for it, but do not give me any nonsense about how we’re better off for having your policies. We’re not.

                  1. Coyoteblog has some thoughts on the U.S. vs. the rest of the world.

                    (I don’t really have a dog in the ‘how much social safety net’ wars, but would note that this country does seem to have rather more people trying to get in than out)

          7. To most of us in the US, “political paralysis” is a feature, not a bug.

            By the way, the primary reason Canadian middle class wages have not been “stagnant” compared to the US is that they started so much lower.

            1. Yes, and that’s why we have trillions in debt. Conservatives don’t have the votes to rein in spending and liberals don’t have the votes to raise taxes to pay for it.

              We’ll see if you still consider that a feature when China eventually calls in the loans and we go into recession for ten years.

              1. Spending like a drunken sailor is not the same as political paralysis. On the contrary, profligate spending is the one thing that our congresscritters can seem to reach across the aisle for.

                1. Rossami, the political reality is that the voters want all that spending. Eisenhower said fifty years ago that any party that repealed social security would be out of power permanently, and nothing has changed since then. So the question is whether we’re going to raise the revenue to pay for it.

                  Republicans have chosen to max out our credit cards rather than raise revenue. That works until it doesn’t any more.

  2. Thanks for that. Only the shallowest of people, or true partisans take any of this “day one” or “first 100 days” rhetoric seriously, and I find much of it insulting. Of course Warren can’t legally cancel student debt. Of course Sanders can’t legally make marijuana legal nationwide. Of course Warren can’t ban fracking everywhere.

    When I see the Dem debate stage I see a bunch of Santa Clauses trying to outbid each other.

    In Joe Biden’s words, “C’mon, man!”

    1. Klobacher is going to fire the education secretary in 100 seconds!

      No matter that she will have already resigned upon the change in administration.

      1. Fair point. I think that, for the 5% of voters who understand how the system works and does not work; we see this rhetoric as aspirational. So, it is helpful to hear what the candidates say. (eg, my translation of Sanders: “I think pot should not be per se illegal anywhere, and I’ll use political capital to effect this.” Klorbacher: “We have a sucky education secretary right now, and with me as president, you’ll have someone much better.”)

        For the 95% of the public who does not understand how the government works; yeah, I agree. They can be misled by these sorts of words. And that’s dangerous, to the extent that people are lulled into thinking that all these aspirational things are really within a president’s power, rather than requiring Congress and/or a Constitutional amendment.

        1. It’s dangerous to translate Sanders that way, IMO. He’s a red diaper baby, he has a history of associating voluntarily with Stalinists, praising dictators, and various public statements indicate that he has a great deal of contempt for the idea of people having choices.

          Now, the US government has a fair degree of institutional resilience and inertia, so I seriously doubt he could transform the US into a new USSR even if he were elected and attempted to. But I suspect that when he says he’d engage in dictatorial actions, he’s not joking, and given 4 years he could erode that resilience to a very dangerous extent.

          1. and given 4 years he could erode that resilience to a very dangerous extent.

            Especially if he studies Trump’s model.

          2. I’ll give Sanders this. He’s honest. Basically a communist, but honest.

  3. Washington did warn against political parties. The original constitution imagined unaffiliated agents operating congress through open debate and the interests of their districts, not two parties who dictated the policy priorities to their members.

    1. Well, that proved to be a lost cause, and very quickly — the political advantages of partisan organization are too great for legislators (and the President) to forgo.

      1. I’m not saying the founders’ pre-conceptions were reasonable on that point. But the founding belief that congressmen would be free agents is as silly as the founding belief that congress “protect congressional authority and rein in presidential authority”, and for the same reasons.

  4. It would be more effective to just appoint me emperor for 6 years.
    Instead of lying about what I will do, I will let it come as a surprise.

  5. Any competent person, given the abuse of power that Trump is now permitted, could easily turn the U.S. into a dictatorship within a year or two.

    1. “Any competent person, given the abuse of power that Trump is now permitted, could easily turn the U.S. into a dictatorship within a year or two.”

      I’m curious whether anyone likely to be running in the next presidential election, on either side, meet your definition of ‘competent’?

      1. Any Democrat currently running is 1) a mature adult 2) in control of his/her mouth and 3) knows that judges don’t “sign a bill” and knows that congresspeople can’t be impeached. Case closed. Next?

        1. Sorry, I’m still confused. Are you saying that any of the current Democratic candidates are ‘competent’ enough to establish a dictatorship in two years if elected, and the only thing preventing that is their morality?

          And that the only reason Herr Trump hasn’t established a dictatorship yet is that he is not competent to do so?

          If I have those views correct, should a voter who really, really doesn’t want any possibility of a dictatorship vote for the guy who can’t do it because he’s incompetent, or for any or the others who could easily be dictators but are just too moral?

          Because making a bet of that consequence based solely on the morality of a politician … uff da.

          1. Well yes that usually is the choice. Who do you trust? is the question voters are asked in any election.

          2. Absaroka, the new danger created by Trump comes from his blundering around knocking down long-standing barriers which would constrain a more cunning and self-controlled would-be dictator. Trump excels at raising the mob—which frightens a lot of folks—but except in the case of the Senate, disgracefully cringing before the mob—Trump lacks the insight and self-control necessary to align and ally institutions which enjoy some measure of independent power. So far, that has left Trump more a buffoon than a fascist-style menace.

            When a guy shows up with talents to do those things which Trump cannot (co-opt the military, for instance), then unchecked emergency powers, flexible funding in violation of appropriations, freedom from legal interference by either congressional subpoena or Justice Department investigation, unfettered access to private foreign alliances, and a vitiated impeachment power, could all help make that guy much more formidable than Trump.

            1. Sometimes reading your screeds makes me wonder if you wandered in from some alternate universe. Are we talking about the same guy who keeps complying with court orders?

        2. Objection.
          #1 “mature adult” – Assumes facts not in evidence.
          #2 “in control of his/her mouth” – Ditto
          #3 “knows …” – Yeah, because none of those other candidates have ever said anything stupid.

    2. “could easily turn the U.S. into a dictatorship within a year or two”

      Not easily or at all.

      He has broken you. Snap out of it.

      1. “He”???? Eugene? Or Trump???

        1. Trump of course. Captcrisis imagining that the US is “easy” to turn into a dictatorship is madness.

          1. Aside: FWIW the famed logician Kurt Godel thought the Constitution allowed this. When he brought this up during his citizenship interview, his minder (Einstein) had to quickly change the subject.

            1. Godel wasn’t entirely wrong. You can see how a dictatorship could be arrived at while complying with the Constitution.

              It would be a multi-stage process, involving constitutional amendments, but you could get there while complying with all the rules.

              Or you could do as the left proposes, and use momentary control of both chambers of Congress and the White house to pack the Supreme Court with justices who’d just pretend the Constitution allowed it, while enacting various forms of entrenchment legislation.

    3. “The dark night of fascism is always descending on the United States, yet always lands in Europe.”
      Tom Wolfe

      All that Trump is a fascist bullshit is just leftist bullshitting, it’s not his supporters that are trying to explain why we’ll need Gulags to re-educate the opposition party.

      1. it’s not his supporters that are trying to explain why we’ll need Gulags to re-educate the opposition party.

        Trumps supporters are not trying to explain it. They are demanding it.

        1. For the left, it’s always 1935 and everyone to the right of them are varying degrees of Hitler.

        2. They must be demanding it someplace I’m unfamiliar with.

        3. Where? Where are they demanding it? Show me the links.

      2. To be fair: If you want to minimize the likelihood of being called fascist, here’s a pro tip: Don’t lock kids in cages. Don’t try to collude with Russia to win elections? Don’t try to blackmail Ukraine to win elections.

        I don’t think that Trump is a fascist. But then, I don’t think that Dems in power are Communists, and I’ve heard that idiotic description used fairly often (albeit mainly from the fringes of the far-right media). Using extreme and inaccurate rhetoric is a game both sides play. Alas.

        1. “Don’t lock kids in cages. Don’t try to collude with Russia to win elections? Don’t try to blackmail Ukraine to win elections.”

          Everything you mentioned here was actually done by Democrats, not Trump.

          1. I do not see a way to meaningfully engage with someone who smokes crack before writing an internet post.

            1. It’s weird then, that you keep posting like you expect us to. :/

            2. That locking kids in cages? That was Obama policy. In fact, all the pictures the AP used to illustrate it were from the Obama administration. Oops?

              And we forgot the 2012 election really fast, didn’t we? Romney: “Russia is our biggest enemy”. Obama: “The 80s called, they want their foreign policy back.” It might not be colluding with Russia to win elections, but neither is what Trump did (according to Mueller, who found no evidence of collusion).

              Blackmailing Ukraine is new, I’ll admit. But it’s not like US foreign policy has been short on blackmail and other bad actions historically, even if it wasn’t Ukraine. Where does the US intervention in Libya fall on your spectrum of terrible foreign policy ideas? How about creating a policy of extra-legal assassination via drone strike? (Which every president afterwards will point to as precedent to do the same.) And then classifying all male victims as terrorists automatically, just so you don’t have to admit to killing innocent civilians.

              1. That locking kids in cages? That was Obama policy.

                Bullshit. Obama did not have a deliberate policy of family separation. Trump did, and adopted it deliberately because of its cruelty.

                Plus the Trump administration is so stupid and incompetent that it couldn’t even keep track of the kids.

                Look, this guy is a loathsome, corrupt, asshole. You like his policies? Got your tax cut? OK. But recognize the cost.

                1. “It wasn’t a DELIBERATE policy, it just happened that way! If only Comrade Obama had known, he would have put a stop to it!”

        2. Sigh.

          Fact check. The picture of “Kids in cages” used to attack Trump actually occurred in 2014 under the Obama administration.

          https://apnews.com/a98f26f7c9424b44b7fa927ea1acd4d4

          You should know better…

          1. Yup. Trump’s family separation policy certainly deserves harsh criticism, but when you use the “kids in cages” meme, your begging for this response.

            And the government separates kids from their families all the time, we should focus on doing that less overall.

      3. Kaz, Trump supporters here regularly wish for a new Pinochet to purge the left.
        They wish for sedition laws to return, so they can go after the media.
        They demand the Dems in congress be held criminally liable for impeachment.

        1. Links? And not just random internet idiots.

          There are tapes of paid Bernie staffers talking about re-education camps for billionaires and Republicans. And they still work for him.

          1. LovesConstitution1985 (or whatever the number is), whom most definitely qualifies as a random internet idiot, has made the first two (Pinochet, sedition), though I don’t recall the other it wouldn’t surprise me.

            But remember: random nut job that disagrees with me is representative of my opponents, each lone wolf who espouses most of my views is just a lone wolf, no matter that each of them are on the payroll of the old white male I’m voting for.

            1. Kaz is the guy who set the bar so low:
              All that Trump is a fascist bullshit is just leftist bullshitting, it’s not his supporters that are trying to explain why we’ll need Gulags to re-educate the opposition party.

              I agree with you that those aren’t representative of much, but then neither is what Kaz is talking about.

  6. The Framers’ theory was that members of Congress, because of their roles and their own political ambitions (which, for most, don’t extend to the Presidency), would work to protect Congressional authority and rein in Presidential authority; alas, we haven’t been seeing much of that.

    Alas, as we have seen, Republican Senators’ ambitions do not extend even to protecting the Constitution, let alone to protecting their own authority under it.

    As for Publius, and what a Democratic president could not accomplish on his own authority—or otherwise ban—Publius apparently reckons without the full extent of Trump-created risks to constitutional order. Put cowardly senatorial oversight together with the national emergency power, defend that with the veto power, and executive power becomes boundless—just the way a supine and entirely complicit Justice Department now prefers to see it exercised.

    By all means, remove power from the president, but do not pretend that is not what Democrats have already been attempting their feeble best to accomplish. If you are a Trump supporter who thinks too much presidential power might create an emergency when Democrats take control, you have only to turn around now, and cooperate with Democratic Party efforts to reign it in. You will get ready cooperation.

    But you have to do it now. When Democrats will cooperate. Otherwise, Democrats will conclude later that too much damage must be undone to permit scruples about power any greater than Republicans have been wiling to exercise now—which means Trump’s scruples—none at all.

    Think it over, Trump supporters. Time may be growing short. Or, if Trump wins re-election, expect a somewhat-delayed counter-revolution, intensified in proportion to whatever extra delay ensues. Who supposes Trump is a favorite to last another full term? Who knows what chaos might attend the unpredictable circumstances of his eventual departure from office, whether by completing another term and actually departing, or by whatever circumstances the present chaotic course of politics and happenstance will serve up?

    Of all the perils Trump’s present conduct has created for the nation, the least supportable is the confidence Trump’s supporters indulge in their benighted vision for the future.

    1. “rein it in.” Not “reign it in.”

    2. Can you give a couple of examples of the democratic efforts to reduce the power of the presidency in general? Do you see any of the current presidential candidates making that pitch?

      1. Nosictur, any reassertion of congressional authority over Trump is a general reduction of presidential power going forward. Strictly limiting the emergency power is essential to keep a Democratic Party president in line, no less than a Republican. Insisting on strict adherence to specific appropriations likewise. Also, avoiding making a mockery of the impeachment power by requiring compliance with subpoenas would be huge, no matter who was president.

        I doubt anyone could propose reasonable ideologically-based power restrictions which would have as much real effect on limiting presidential power generally as would re-assertion of those now imperiled norms I just mentioned. And the great thing about reasserting those norms is that they are not inherently ideological. In principle, they ought to be supported by every member of congress.

        Only by letting tribal rivalry interfere have we arrived in this pickle, by delivering license for presidential over-reach on an ideological silver platter. It is a disaster founded entirely in personal political cowardice, as everyone who has been watching already knows.

      2. Noscitur,
        Mayor Pete is on record as saying (I’m paraphrasing): If I am president and Congress wants to give me authorization to go to war, I will insist on there being a 3-year max sunset. If the war needs to go back 3 years, then I’ll have to go back to Congress for approval.

        That’s a pretty clear reduction of the current, horrific, misuse of presidential power, which Bush, Obama, and now Trump have taken advantage of.

        Several Dem candidates have floated the idea (widely discussed for the past 10+ years by Dems and Rep’s) of a constitutional amendment, giving SCOTUS justices 18-year terms, with each president getting one appt each two years [plus, of course, extra ones in the case of an unexpected death or resignation]. That’s a more roundabout reduction in presidential power, but I think we agree that it is an example, yes?

        1. Not “back 3 years” Should be “beyond 3 years” of course.

          My 1,000th post lamenting the lack of an edit button at Reason. Do I win something, for tilting at this particular windmill? 🙁

          1. The lack of an edit button….the reason for why they can’t stop the damn telemarketers from calling your cell phone 5 times a day…

            Seriously, the damn fake phone calls. Why can’t they stop this? This is the one bipartisan issue that everyone hates.

            1. Hell, I’d vote for pretty much every Republican or every Democrat who ran on that one issue. Still; I have a feeling that it would poll at about 95% with the public, but Mitch would, nonetheless, kill it in the Senate.

        2. Obama was a ‘constitutional scholar’ running on reversing the power grabs of the bush administration, remember? …..and how did that turn out? To a nearest approximation, no politicians would not be politicians if they weren’t interested in wielding political power. Anyone who claims to be interested in throwing it in mount doom instead is almost certainly lying; if not to everyone else then at least to themselves. All Boromir and no Smeagol.

          1. He was a “constitutional scholar” in the same sense a pest exterminator is an “entomologist”: He’d studied it to find its weak spots.

            That’s not an unusual approach to the Constitution for constitutional scholars, mind.

    3. Or, if Trump wins re-election, expect a somewhat-delayed counter-revolution, intensified in proportion to whatever extra delay ensues.

      Exactly what does this mean?
      Do you advocate the violent overthrow of the government if we elect the ‘wrong’ guy?

      1. It’s meaning is as specific as the word, “happenstance,” which for some reason you chose not to quote. My own view is that minimizing the role of happenstance in the survival of long-successful systems of government is wiser than opening the door willy-nilly, as the Trump crowd is now experimenting with doing.

        1. Here is your sentence, “Or, if Trump wins re-election, expect a somewhat-delayed counter-revolution, intensified in proportion to whatever extra delay ensues.” Copied and pasted. This is the sentence in your post and it does not contain the word “happenstance”. Why do you want Commenter to quote “happenstance” when it wasn’t in your sentence?

          Seems to me that in order to have a “counter-revolution” you have to start with a revolution. We had a revolution here and it was bloody. If we are having a revolution now, where are the bodies?

          “…intensified in proportion to whatever extra delay ensues.” Do you honestly believe that if Mr. Trump loses the 2020 election he won’t step down? Or if he wins, when 2025 comes around he will try to stay in office? If that happens, I will stand with you and together we will pull him down. But I am not even slightly worried that I will have to do that. Not one bit. With respect to the peacefully changing chief executives, American history is almost unique in the world. I see no reason to think that Mr. Trump would not step down, you made that up in a fit of pique.

          “Also, avoiding making a mockery of the impeachment power by requiring compliance with subpoenas would be huge, no matter who was president.” The President asserted executive privilege and you didn’t like it. More pique. The Senate and the Judicial Branch did not agree with you.

          American citizens will not stand for an executive that abuses their power or fails to conform to the law. Neither will we allow a lawfully elected president to be removed upon the whim of half of half of Congress. Work hard to elect a president that you like better. Spend your time and money. Trust the system and let it work for you. So far your statements suggest that outcomes you like are legal, other outcomes must be overturned by force. Suppose we all felt that way? What sort of place would this be? Valenzuela?

          The office of president changes party roughly every 8 years. The Republicans will do something outrageous and a Democrat will win. It has ever been so. Unless the Democrats do something even more outrageous, it is inevitable. Patience.

          1. Valenzuela? The Philippines?

    4. It’s not just presidential power, it’s congressional power too. Congress has expanded it’s power beyond recognition requiring a strong executive to manage all the power Congress has taken. When Congress passes a federal law that outlaws guns in school zones, they are taking the first step to a federal police state, not the President. Wickard v Filburn upheld a congressional power grab, which increased the President’s power too.

      Too much Presidential power is Congress’ fault but the only way they can cut it significantly is give some of their own powers back to the States where they should be.

    5. “Of all the perils Trump’s present conduct has created for the nation, the least supportable is the confidence Trump’s supporters indulge in their benighted vision for the future.”

      Ideological noise.

    6. What evidence have you seen that suggests that the Democratic Party is interested in constraining the President, rather than constraining an opposing President?

      Every action I’ve noticed with Trump supports an anti-Trump-power model rather than an anti-President-power model.

      Indeed, your argument that Republicans should seek common cause against future power grabs with the Democrats of today should have also been written to the Democrats in power just a few years ago. Was it? Why not?

      1. Hell, the current set of Republicans in Congress are both (a) ranting about alleged abuses of FISA; and (b) voting to reauthorize FISA.

  7. You want to rein fed.gov? Rein in current commerce clause jurisprudence. Overturn Wickard as a good first start.

  8. The tone of the Matt Welch excerpt puts misplaced emphasis on an ideological interpretation of what powers ought to be reduced. That ignores an urgent requirement that the power of office be withdrawn from an incumbent who is actually insane, and who acts accordingly, without constraint. Do that first, and talk about the rest later.

    1. I think we can wait on that until an incumbent who is actually insane comes along.

      I find it amusing that the left, which shrinks from identifying people who claim to be a different gender from that their anatomy and genetics demonstrate as insane, sees insanity in mere successful political opposition.

    2. Lathrop, you and people like you are why I’m really going to be enjoying the first Wednesday in November.

      1. I wasn’t expecting to enjoy election night 2016, but it was shockingly pleasant watching the expression of dawning horror and incredulity as the evening progressed. I’m making some plans for election night this year, I hope to spend it with friends.

        1. “…I hope to spend it with friends.”

          Objection. Assuming facts not in evidence. 🙂

          1. I’ll be consoling my family, trying not to smile.

    3. “That ignores an urgent requirement that the power of office be withdrawn from an incumbent who is actually insane,”

      Methinks thou dost protest too much.

  9. A candidate who pledged to do and say nothing for the first two weeks would be nice.

    1. Finding politicians who do nothing shouldn’t be that hard. Finding ones who say nothing might be harder. You could nominate Justice Thomas, maybe?

  10. Professor Volokh….We need more than just restraining the power of the Executive (a laudable goal). Washington DC simply has too much power. Power needs to be taken away from Washington and devolved back to the states.

    1. Commenter_XY, why stop at the states? Why not just take it all the way to the inevitable conclusion, and devolve all power to international corporations?

      1. This may be a fair objection, if you are suggesting that smaller more localized governments may lack the ability to effectively counterbalance the power of modern international corporations. However, in the case of the United States, if the federal government retains its exclusive purview over foreign policy, and the ability to tax and regulate the movement of goods and people across the international border, as was contemplated at the founding, that would seem to be sufficient for this purpose.

      2. Well because we’re talking about staying within the framework of the Constitution here, Congress does have the power to regulate interstate and foreign commerce. But the states should retain the Lions share of the power to govern the people, not Congress by claiming everything is interstate commerce from carrying a gun near a school to growing weed in your backyard.

  11. And the Democrats are worried about Trump being a dictator? How ironic!

  12. Let’s not kid ourselves. Rule one in politics is self-preservation. On the federal level, rule one becomes rule one, two and three.

    Accordingly, the executive is protected by his congressional partisans since his stature-and Article two authority-typically enhances their own.

    We left the age of Platonic Guardians-the founders and framers-long ago. Quit looking for Jefferson and Madison.

    Principles or doctrines such as balance of power and co-equal branches exist only by virtue of law and custom, and they find challenge or assault only when the minority has run out of options to regain notice.

  13. Better yet, the States should consider removing power from the federal government.

    1. Yeah, the first go at that didn’t end so well.

      Neoconfederate.

      1. My, you are histrionic.

        I can easily get even my most liberal friends to concede that perhaps government power should be more localized in some cases. I recently did this by pointing to the headlines about President Trump issuing dictates about school lunches, and how absurd it was that this decision is in the hands of the federal government rather than your local school board.

        1. You’re not saying power should devolve to the states, you said ‘States should consider removing power from the federal government.’

          Don’t be coy.

          1. No idea what you’re trying to say. That that no power should devolve to the States except that which the federal government deigns to unilaterally cede?

            On the contrary, trying reading the Constitution to see how it’s supposed to work, maybe you can pull it up and Ctrl+F “State.” Article V for example.

            1. You were talking methods, not just end goals.

              Your continued backpedaling is pretty delicious though.

              1. ….and I’m still talking methods. You’re incoherent as usual.

  14. Re: Remove power from the presidency.

    No, the Democrats won’t do that. Here’s why. The Presidency is the head of the executive branch, and the vast bureaucratic organization that is the US Federal government. And the Democrats LIKE a large, bureaucratic federal government. The larger, the better. Any action that effectively reduced the power of the presidency would also reduce the power of that large and massive US federal government.

  15. I agree with the negative sentiments about the two party system. I don’t think it works very well. In NZ, where I’ve spent a fair amount of time, you have a half-dozen parties. No party ever has a majority, so you have alliances and coalitions, where the uniting factor is issue-based. That’s healthier. In America, where public policy is a team sport, people are too focused on team loyalty.

    1. Observe Israel. Where the major parties do not have enough votes to form a government so they must form alliances with minority parties. This give the minority parties huge power – far out of proportion to those they represent. And if the minorities won’t play, then you have elections every few months hoping that someone will finally get enough votes to form a government. This is the parliamentary form and it gravest flaw. In the US we have the worst of all possible forms of government, except for all the others.

    2. In NZ right now we have a corrupt party that got less than 7% of the vote in coalition with and holding the current government hostage, engaging in highly personal revenge attacks on their foes. That’s not particulary healthy for a democracy either.

    3. I hate to say this because I’m living in a small powerless country now. But having a fractured and paralyzed US might be great for US domestic policy, but in a world with an autocratic China and Russia I don’t think it’s in anybody’s interest, especially countries like NZ, to have a indecisive and paralyzed US.

  16. The original constitution imagined unaffiliated agents operating congress through open debate and the interests of their districts, not two parties who dictated the policy priorities to their members. tellgamestop

  17. ” A presidency with enough power to legalize Activity X irrespective of Congress or the desires of states is a presidency with enough power to criminalize that same activity when the other team wins. ”

    I don’t think that is true. A president can legalize an activity, de facto although not de jure, by instructing federal law enforcement not to enforce the law against it, as President Obama did for the Dreamers. That does not give him the power to criminalize an activity by instructing federal law enforcement to enforce a nonexistent law against it.

    Similarly, Sanders could effectively legalize Marijuana, so far as the federal law is concerned, by instructing federal law enforcement not to enforce that law.

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