Rule of law

Repairing the Rule of Law: A Post-Trump Agenda

A list of reforms to help restore the rule of law in a post-Trump Washington.

|The Volokh Conspiracy |

Paul Rosenzweig and Vishnu Kannan offer a "post-Trump agenda" for repairing the rule of law. I do not agree with every item on the list, and might suggest the addition of a few other items, but agree that these sorts of reforms should be at the top of Congress' agenda after the next election. And while styled as a "post-Trump" agenda, these reforms would be worth trying to enact whether or not Trump is reelected this Fall.

Rosenzweig and Kannan's list consists of the following reforms (each of which is described in more detail in their piece):

  • Reform of the Federal Vacancies Reform Act to prevent perpetual "acting" appointments.
  • Mandatory disclosure of presidential candidate tax returns and strengthening of presidential financial disclosure.
  • Redefining "emergency" authority to limit such declarations generally.
  • Clearer prohibitions on reprogramming funds.
  • Enhanced inspectors general protection.
  • Statutory protection for special counsels to allow challenge to removal.
  • Overturn Franklin v. Massachusetts.
  • Define emoluments violations and create a right of action.
  • Automatic Hatch Act penalties.
  • Minimum qualifications for White House staff.
  • Expediting judicial review of congressional demands for records in relation to oversight and impeachment.
  • Mandatory federal agent identification.
  • Enhanced whistleblower protection to prevent retaliation in the intelligence community.
  • Permit the intelligence community inspector general to report directly to Congress without going through the general counsel of the Office of the Director of National Intelligence.
  • D.C. statehood.
  • Pardon reform.
  • Disqualification of family for POTUS.

While I am not entirely comfortable with some of the proposed limitations on core executive power—such as enhanced limitations on removal over treating the President like an agency (by overturning Franklin v. Massachusetts)—these are reforms that should nonetheless be considered. I am also not convinced that D.C. Statehood is a good idea (though I could support turning much of the district into a newly created Douglass County, Maryland), and I am even less convinced it would be a "rule of law" reform.

In addition to the ideas they propose, I would suggest a few others, including a statute to operationalize the 25th Amendment, so as to clarify how that Constitutional provision could be invoked, should the need arise. I would also encourage further reforms of the Freedom of Information Act to reverse the presumption many agencies have against the disclosure of internal materials and mandate greater information collection and disclosure related to rule of law questions. While curtailing grants of emergency power are a good idea, I would go farther and encourage Congress to time-limit most grants of delegated authority to the executive branch (for reasons that extend well beyond the abuses of the Trump Administration, and are detailed in this paper with Chris Walker).  Finally, I would also encourage Congress to make impeachment-related inquiries a permanent part of the jurisdiction of the House and Senate oversight committees.

I am sure there are still more reforms that would help repair the rule of law. It is not too early to start thinking about what reforms would be wise, as these sorts of measures should be the first order of business when Congress reconvenes after the election (if not before).

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  1. “I am also not convinced that D.C. Statehood is a good idea (though I could support turning much of the district into a newly created Douglass County, Maryland), and I am even less convinced it would be a ‘rule of law’ reform.”

    Nonsense – the Democrats are the Rule of Law party and therefore anything that benefits them is a Rule of Law reform.

    (Let’s see if I need a /sarc tag for this)

    1. Disenfranchising millions of people so that they are ruled without any say in it certainly goes against rule of law as it is typically understood in non-dictatorships. But you think black people are scary so I understand your point.

      1. Nobody is proposing disenfranchising people living in DC. The proposal is that they vote someplace else.

        1. they ARE DISENFRANCHISED now, so keeping the status quo is in fact a proposal disenfranchising people living in DC. so they just make up a story about how they “really” live in Florida, now. also, they hate, hate, hate voting by mail, except when they’e doing it themselves.

          1. They are DISENFRANCHISED in the sense that they decided to live someplace that wasn’t represented, rather than somewhere else they could walk to in under an hour.

            The mistake was letting anybody live in DC to begin with.

            1. Assuming you think it’s a mistake to live in DC, it seems like the federal district is much bigger than it needs to be. Rather than complaining that Thomas Jefferson got it wrong, isn’t the sensible thing then to take most of the land where people live and make it not the federal district anymore? You could do that either by making it a part of Maryland or by making a new state, but both approaches seem to fix the “mistake” of letting people live there without impairing the ability of the federal government to operate in a much smaller capital.

              1. D.C. should be allowed to join Maryland or perhaps form a State if they wish. At the same time, the remainder of New York State would like to separate from New York City. Southern Illinois would like to separate from Chicago. Minnesota’s Northwest Angle would like to secede from the United States and join Canada. The list goes on.

                1. I have yet to see any real evidence that any of these states really want to split up, whereas the population of DC overwhelmingly supports statehood (see https://www.washingtonpost.com/local/dc-politics/support-for-dc-statehood-at-record-high/2015/11/22/29e80132-8ee5-11e5-ae1f-af46b7df8483_story.html ). Do have anything other than snarky takes to support your view that there’s widespread support for any of the state splits you’re suggesting?

                  But if New York City and the rest of New York State really want to split up, I don’t see a problem with that. If both halves agree, why not? Seceding from the US is a pretty different matter, of course.

                  1. P.S. I think it’s kind of funny that at this point Republicans think that Democrats would be scared of the idea of splitting New York State up. In the 2016 election, Schumer’s margin over Wendy Long was 5.2 million votes to 2 million, so the margin is larger than the total number of votes cast by NYC (2.7M). Clinton beat Trump by the a narrower margin of 4.6 million to 2.8 million, but even in that race Clinton would have decisively won a NYC-less state by ~600K votes (2.9M to 2.3, so about a 12 point margin).

                    1. You’re using “NYC” as opposed to “Downstate”. The two aren’t the same.

                      If you were to split up NY State, it wouldn’t be NYC and the rest of the state. It would be NYC, Long Island, and likely Westchester and Rockland County versus the rest of the state.

                      Then the vote actually is significant. Split up this way, Trump would’ve won upstate NY in 2016 (47% to 45%, or 1.49 to 1.41 million votes)

                      https://en.wikipedia.org/wiki/Politics_of_Upstate_New_York

                    2. Armchair Lawyer–I’m using the exact same words that ML did. If you want to add a new dimension to the conversation, feel free, but there was no confusion about Downstate vs. NYC prior to you trying to enlighten us.

                      In any case, if you can find a majority of people upstate who actually want to split the state along the lines you propose, I’d be very interested to hear about it.

                    3. JB,

                      I’m using the traditional lines suggested for such a separation. And there are repeated bills in the NY legislature suggesting such a separation.

                      The polling isn’t a majority upstate, for such a choice. But it is at 38% for, with 56% against. So it’s not nothing either.

                      https://scri.siena.edu/wp-content/uploads/2019/10/SNY1019-Crosstabs.pdf

                    4. Thanks for the polling data. That supports what I thought, that ML’s original statement that “the remainder of New York State would like to separate from New York City” is incorrect, even if you read it as Downstate versus Upstate.

                      Obviously, there’s non-trivial support for it, but it’s pretty goofy to impose a preference on a population that they clearly do not have.

                    5. It would probably be more accurate to say that the Upstate doesn’t really want the state split, but if it is split they don’t want to be in the same part as NYC.

                  2. 38% is pretty high.

                    That’s around where Statehood preferences for Puerto Rico are, depending on the time of day and the poll.

                    1. I mean, it’s “pretty high” in the same way that a pretty high portion of the people of Alabama want Doug Jones to continue to be their senator, i.e. that we’d generally call a blowout election. You certainly can’t get from 38% to asserting that it’s what the (generalized) people living upstate want.

                      The Puerto Rico statehood questions is really difficult to get a read on because most of the referendums are so irregular. The clearest result is probably the 1998 referendum, where most people preferred to remain as a territory but 46% wanted statehood. I get the impression that statehood has become more popular since then, but can’t find any really credible data one way or the other.

                  3. “I have yet to see any real evidence that any of these states really want to split up”

                    Several counties in Oregon would like to separate and form a new state with some California counties, so it isn’t that hard to believe. The nice folks who live in the rural counties hate being outvoted by all the people who live in the cities.

                    1. I agree there are some people in those counties that want to do that. Since they can’t even get enough signatures to get the question on the ballot, though, I’m skeptical that this matches the general sentiment of the population and have seen no real evidence that that’s the case. (Contrast to DC where 75% of people support statehood.)

                2. I’ll gladly vote to let the parts of California that want no part of LA and SF go their own way as soon as the Dakotas, Montana, Wyoming and Idaho vote to consolidate into one average population sized state.

              2. I’m fully in favor of a DC retrocession to Maryland

                **With revocation of the 23rd Amendment. If DC becomes part of Maryland, it shouldn’t ALSO have an additional 3 EC votes. One or the other. Not both.

          2. DC already has electoral votes disproportionate to its population. What DC lacks is voting representation in Congress. If DC were to be made a state it would be the 3rd least populous ( only Vermont and Wyoming have fewer people), and that population was declining (as many big cities have) until 2000. There was a modest increase from 2000 to 2010 but the current estimate of a 17% increase from then seems odd. In fact I would expect the population of DC to continue to decline over time.

            1. The problem with representing DC in Congress as a separate entity, is “Rep. Chopped Liver, D (Federal government)”; DC literally has no industry at all except the federal government.

              There were basically two reasons for the District:

              1) So that no state would have undue influence over the federal government by virtue of the capitol being located within it. (Subject to both threats and offers, due to being within the territory of a separate sovereign.)
              2) So that no state would have undue interest in the aggrandizement of the federal government.

              We’re already seeing #1 becoming an issue, with the DC government considering action against national monuments on the Mall. #2 has been a problem for years now, as both Virginia and Maryland are becoming increasingly economically dependent on spillover revenue from DC.

              So, the District actually was a good idea. I suppose you could argue, though, that most of the advantage of it has already been lost.

              1. ” DC literally has no industry at all except the federal government.”

                And…
                There’s good money to be made serving the federal government.

          3. James, they moved there KNOWING that they would be disenfranchised. They chose to be disenfranchised.

            1. If they moved there.

      2. “ruled without any say”

        They vote for President.

        1. Bob, would you find that acceptable for yourself? You’d consider yourself represented if you could vote for president but not Congress?

          And if you wouldn’t be satisfied with that, why should the residents of DC?

          1. Voting is a waste of time in most cases.

            Every city council member, mayor, my county council person [and a big majority of the council], state rep, state senator and congress woman is a Dem and has been since I moved here.

            My congresswoman and I agree on zero things [literally] so why should I care that I have the right to lose 70-30 [or more] every two years?

            1. Not all voters feel the same way you do. If you don’t want to bother to vote, that’s your right (and in some cases may even be a rational and informed choice). But people who want to vote, and be fully represented, have the right to be.

              1. You asked how I would feel. I told you.

                Only 18% voted in last DC local election. DC statehood is driven by politicians who want more offices to hold and Dems who want two senate votes, not the people.

                1. I suspect if you polled the people who live in DC, you’d find a majority for statehood.

                  And yes, it would add two Democrats to the Senate, but that’s only because of our two-senator-per-state rule, which I would also favor abolishing. The Democrats who live in DC are entitled to Senate representation, but it should be proportionate to population nationwide.

                  1. Those people who reside in DC have enough influence over national policy already

                    1. LOL. You don’t know who lives in DC, it seems.

                    2. “You don’t know who lives in DC, it seems.”

                      Well, start with the President of the United States… He or she lives there. Also the Vice President. And then you have 100 Senators who spend at least 50% of their time there. Then another 435 Representatives who spend at least 50% of THEIR time there…

                      So, then you have ALL those people in DC who are in close contact, every day, with all of those people. All those little side conversations on how things are going, when they’re getting coffee and so on. Real quality of life stuff.

                      And that’s before we get to the massive administrative state and the bureaucrats who run that….

                      So, compare all that influence to a little place like Wyoming. Maybe visited by less than 2% of all those important people once a year. Most of the rest don’t have a clue at what actually is going on in Wyoming, and don’t really care…it’s far away. They’ll never visit or have to live there.

                    3. You are aware that a majority of the population of DC is minorities who are mostly poor? Don’t mistake K Street and Georgetown for the District as a whole.

                    4. Krycheck,

                      You realize the median (not mean, but median) household income in DC is $85,203 (2018 numbers).

                      In fact, that ranks #1 out of all the states (and DC) combined. Making DC actually the RICHEST one. Again, MEDIAN numbers, not mean.

                      DC is in fact richer than everywhere else.

                    5. https://dceconomicstrategy.com/household-income/

                      You want policymakers, go to Arlington and Alexandria.

                    6. AL, a significant chunk of the District is minorities living in poverty. Look it up. Yes, there are a lot of rich people who also live there, but they’re not the entire District.

                      And that median is only as low as it is because the millionaires are counter balanced by the poor neighborhoods.

                    7. Oh Krycheck….

                      “And that median is only as low as it is because the millionaires are counter balanced by the poor neighborhoods.”

                      There’s a reason I specified ‘Median” and not Mean. Very deliberately. Twice. “Mean” is what is commonly thought of as “average.” IE, the mean of 1, 2, and 100 is 31. “Median” is quite different. It’s the middle number in the set. The median of 1, 2, and 100 is 2.

                      That means, given a median household income of $85,503, 50% of households in DC make more than that, and 50% make less. Which is again, number 1 in the country.

                      This can be broken down further, (using older numbers, 2015, individual income). You can look at the 25% threshhold for example (IE, at what income level are 25% of individuals making less, and 75% making more). For DC, that’s $27,000. Which is again, #1 in all the 50 states and DC. Next closest is Colorado at $24,450.00. DC really is the richest state/district in the entire country. And it’s across the entire spectrum (except the tippy top). At the top 1% it’s $387,684.00. One state (Connecticut) beats that.

                      https://dqydj.com/average-income-by-state-median-percentiles/

                      So, there’s a bit of cognitive dissonance going on here. Does DC have some poor people? Sure. But their poor people are richer than poor people in every other state. Their middle class people are richer than middle class in every other state. Their rich people are richer than every other state (beside Connecticut). Significantly so.

                      The Federal government has rather notable “benefits” for the district…to the fact that it’s effectively (in one way or another) made it richer than every state. That’s part of the influence the district has. Do you begin to understand.

                    8. Edit. Average is 34.3. But you get the point.

                    9. “Well, start with the President of the United States… He or she lives there.”

                      Except if you ask him, and he’ll tell you he lives (and votes) in Florida.

                    10. Yes, I know the difference between median and mean. The thing is, though, that if you have a lot of poor people — which the District does — it doesn’t take that many rich people for the median to be a thoroughly misleading representation of what is life for most people.

                      So let’s ask a different question. Do you happen to know what percentage of the District lives in poverty? (I do because I just looked it up.) 20%. It has a higher per capita percentage of people on welfare than any European country, and it has a higher income disparity than any US state. And those people who live in poverty there aren’t helped by the fact that other residents of the district are millionaires.

                    11. “Yes, I know the difference between median and mean. The thing is, though, that if you have a lot of poor people — which the District does — it doesn’t take that many rich people for the median to be a thoroughly misleading representation of what is life for most people.”

                      You clearly don’t know what the median is, if that’s your argument.

                      It would, in fact, take 50% of the population (+1) of “Rich people” in order for the median to be a misleading representation of what life is for most people.

                      If “most people” were poor (IE, >50%), the median would be low. Because that’s how medians work.

                    12. I didn’t say *most* of the people who live in the District are poor. I said the poor people who live there aren’t helped by the fact that rich people also live there.

                    13. “Does DC have some poor people? Sure. But their poor people are richer than poor people in every other state. ”

                      Interesting statistic that you just made up there.

                2. ” DC statehood is driven by politicians who want more offices to hold and Dems who want two senate votes”

                  And “State of Jefferson” is driven by Republicans desire to pick up 2 more Senate votes, too, but it IS popular with people who live there, who, coincidentally, tend Republican.

          2. Compare with Guam, Virgin Islands, Puerto Rico.

            First the practical case: comparable size to existing states in terms of population, economy, and area. I’d say Puerto Rico has a much stronger case than DC, although both are plausible. Clearly Guam and the VI are non-starters.

            Second the the constitutional case: PR, VI, and Guam all have a much stronger case than DC. The entire reason DC even exists was to have a capital not under the control of a particular state. If that’s no longer a concern, there’s no reason for it to exist at all. Return it to the original owners (if they can be persuaded to take it…). Or return all the residential areas and keep just the government buildings. By contrast, PR, VI and Guam were pre-existing entities already inhabited by populations with distinct identities.

            If DC does become a state, a condition of admission would need to be writing into their consitution provisions preventing even the appearance of trying to interfere with the operation of the federal government. In particular, federal employees on the job not being under their jurisdiction at all. Their location should not give them any leverage other states don’t have.

            1. The most serious proposal I have seen for DC statehood would create the new state within the borders of the federal district, while creating a smaller federal district within that state

              The only reason I see to support that plan over simply ceding the “new state” portion of the district back to Maryland is the political advantage it would afford the Democrats in the Senate.

              Of note is the fact that when DC statehood became the hill to die on, proportional allocation of senators became a back-burner idea.

            2. Normally, I’d say just admit that America’s experiment with overseas colonialism was misguided and declare independence for U. S. territories.

              Of course, this would probably be illegal in the case of Hawaii, now that it’s a state, and the other territories (apart from militant minorities) don’t seem to be too hot on independence.

              I’d say let any territory (except Hawaii where it’s too late) award itself independence at any time so long as it respects U. S. bases, etc. If they don’t exercise that option, then keep the halfway-house status quo.

              I don’t believe in decolonizing against the will of the inhabitants, but neither do I believe in making them states just to give the Donks more votes in Congress and the Electoral College.

              Since DC doesn’t have the option of independence, let the residential parts of the area go back to Maryland. That would cure the anomaly of a capital city without full voting rights for its inhabitants, but the Donks don’t want it because it won’t give them the extra Senators they want.

              1. I don’t believe in decolonizing against the will of the inhabitants, but neither do I believe in making them states just to give the Donks more votes in Congress and the Electoral College.

                Why do people keep saying this? Puerto Rico’s current non-voting delegate to Congress is a Republican. American Samoa’s current non-voting delegate to Congress is a Republican. The current governor of the Northern Marianas Islands is a Republican. Guam had a Republican governor from 2011 to 2019. The Virgin Islands’ governor from 2015 to 2019 was a registered Republican.

                Republicans can be, and are, elected on a territory-wide level in all of these places. Why do people assume they’re all auto-votes for Democrats?

                1. I guess I made that assumption because I had the idea Dems were pushing it.

                  But I could always be wrong.

                  1. “But I could always be wrong.”

                    that’s the way to bet.

          3. Corollary: If they aren’t satisfied with that, why did they move there? It sure wasn’t for the low crime rate or the high quality of public education.

            I have no objection to moving the residential parts of DC back to Maryland or Virginia. But there were very good reasons why the US Capital was established as an independent city and not as part of a state. Time has not weakened those concerns.

            1. “Time has not weakened those concerns.”

              2020 shows why they were and are concerns.

            2. Agree….people don’t know the background and history.

    2. I agree that regardless of the merits of DC statehood, it doesn’t really belong on this list.

      The authors of the article try to make the case that the federal government’s complicated relationship with the District have given Trump the power to suppress protest, but most of the examples given (e.g., armed guards at national monuments and deploying unidentified federal law enforcement to suppress protests) seem unrelated to DC Statehood. In the case of national monuments, the President would still have power to send armed guards to them, and the federal law enforcement response in Portland demonstrates that federal agents can be sent plenty of places other than DC.

      1. Plus, there’s that little matter of the 23rd amendment complicating things. If you take the populated parts of DC and separate them from the Mall, and make a state of them, you’ve still got the rump DC having EC college votes equal to the least populous state, and non-voting representation in Congress.

        That homeless person sleeping behind the Lincoln Memorial could end up the most politically influential person in the country!

    3. There’s a great deal of discussion of this on the merits, which is excellent (why statehood would be better than going back to Maryland isn’t explained, though – I’m sure it has nothing to do with the 2 extra Senators).

      Yet I fail to see the connection to rule of law except for the sarcastic formulation I stated.

    4. I would like to propose that DC be merged with North Dakota. This would effectively double the population of North Dakota. It would keep us at 50 states, give the people of DC representation and create a more equitable apportionment of representation.

      1. This proposal would help Dems even more than DC statehood lol so they should be all over it. It would effectively flip ND to a blue state, giving Ds not only +2 in the senate, but Rs -2 for a net +4 for the Ds

        1. Is this any different than when the states of North and South Dakota were created in the first place. What was the logic in two states, twice the Senators.

      2. Bah. Merge it with Vermont and watch the fireworks occur.

  2. What a joke.

    Trump hasn’t degraded the “rule of law” one iota relative to where it was before, on the whole. It’s just that unlike Obama and others, he is uniformly opposed by the entire political and media establishment. And that opposition is routinely unhinged, deranged, and disregarding of the rule of law itself.

    Anyway, the rule of law still needs repairing, of course. Here’s my idea list.

    – Enable the President to fire any executive branch employee for any or no reason at any time.
    – Eliminate any supposed “independence” of executive branch agencies.
    – Reverse court decisions to eliminate so-called incorporation doctrine, substantive due process.
    – Propose a Constitutional amendment to pass the 14th amendment, which was never legally ratified.

    1. So… get rid of rule of law entirely. Got it.

      1. Only if it gets in the way of things ML really wants to do. Otherwise, you can still have it.

    2. All of these reforms that Senators and Representatives have an interest in legislating and protection Congress’ position as a co-equal branch of government.

      Currently, it appears they are more interested in getting reelected and prefer to pass grand laws delegating power to and authorizing the president, of either party, to act so they can stand back “horrified” but blameless because they never approved the president’s actions.

      The reforms are useless if Congress won’t protect its self-interest.

      1. Exactly right. However, to the extent that the legislature is flexing at all right now, a lot of it has been pretty ridiculous and inept. So on the one hand it would be good to give teeth to things like their subpoena power, on the other they are so incompetent that you worry how things will look if you give them real swords instead of the wooden spoons and pots they like to play with now.

        1. I say we give them the power to enforce subpoenas, but also make it a capital crime to make a speech at, rather than asking a question of, a witness at a hearing.

          1. I agree with both of these ideas.

        2. “The legislature” will only become more and more dysfunctional. They are in Washington D.C. trying to decide things like exactly what should be covered by everyone’s health insurance policies, in a nation of 330 million people with drastically varying cultures and communities. We were supposed to be independent and sovereign states.

      2. The problems you are talking about will never be fixed by Congress or anyone in D.C. Moreover, any solution to these problems is drastically incompatible with business as usual – meaning, the paradigm of increasing centralization of all matters in the hands of the federal government.

        Our federal government was initially intended primarily to handle foreign relations and common defense. It would also handle a limited and finite number of domestic functions. The vast majority of all government power and functions were reserved to the States. If we go back to that, then people will have representative self-government again. People will have government that is responsive to them, rather than increasingly unresponsive and dysfunctional. The systemic problems will only get worse and worse until then.

        1. ” The vast majority of all government power and functions were reserved to the States.”

          More or less true. In theory, the states protect individual rights against encroachment by the federal government. Slight problem: that didn’t work. So along came the 14th amendment and now the federal government protects individual rights against encroachment by the states.

    3. LOL.
      Monarchy now, says ML.

      Reminder: ML stands for ‘Millennial Lawyer.’

      1. No. A plethora of executive orders should also be declared unconstitutional, including many of Trump’s.

        Undeclared wars, Presidential war powers, and our military industrial complex in general are also heinous affronts to the rule of law.

        1. Oh, I’m aware that you’re not one of the unprincipled nihilists around here.

          Instead, you’re an ideologue with ideals well outside of the mainstream.

          And as that sinks in, you get more and more willing to countenance authoritarian means to get you to where you want to go.

          1. What authoritarian means do you imagine I embrace? I offer my opinion. Being in or out of “the mainstream” bears no relationship to being right or wrong, of course.

            Most regular people have no interest in these topics most of the time, of course, but when they do what I’ve found is that people left, right and center are all quite open to unorthodox ideas, such as that particular idea of decentralized government, which obtained at the founding of this nation, but today is extremely outside of “the mainstream” as the mainstream reverts to far more ancient notions of government.

            1. In a republic, being way outside the mainstream means you’re impotent.

              But more than that, it implies a lack of humility regarding your fellow man’s reason.

              As to your authoritarianism, most of what you ask for regards the concentration of power into one person. The concentration of power into one person is an authoritarian move.
              Similarly, not incorporating the BoR to the States allows them to trample on liberties not currently allowed.

              The only non-authoritarian move is your pedantic formalism about the 14th.

              1. Nonsensical. We were talking about the rule of law, such as the Constitution which vests the executive power in a President. If you want to call this structure authoritarian, ok. But the founders had good reasons for vesting the executive power in one person rather than, say, a board. You can read about it. But that’s what they did. Alternatively, you could propose a Constitutional amendment to create a 4th branch of government. Or a bunch of independent agencies that are not part of the executive, legislative, or judicial branches. That would be the “rule of law” way to go about it.

                You have very poor understanding, as usual. Placing the executive power in one person results in that political power being far, far more limited and restrained by political accountability. And at the same time, I am for sharply limiting and curtailing executive power. Do not confuse the question of the scope of power with the question of where that power resides, i.e. do not confuse “what” with “who.” This is really all quite the opposite of authoritarian.

                1. We are talking about rule of law, not your idiosyncratic understanding of the commands of the Constitution. Note how the Constitution wasn’t really foregrounded in the proposals above? That’s because they’re looking at what’s good policy, not holding some talisman that they believe hallows their vision for what America should look like.
                  You don’t talk about policy at all, just pound on the table. Telling.

                  Your invocation of the Founders for unitary executive is…dubious.
                  https://columbialawreview.org/content/article-ii-vests-the-executive-power-not-the-royal-prerogative/

                  Placing the executive power in one person results in that political power being far, far more limited and restrained by political accountability.
                  Plenty of counterexamples to that over the last 4 years. As the Founders had plenty of counterexamples to examine in their own time.

                  1. Once again, you misunderstand the argument. The article you posted is not even about the unitary executive! Instead, this article concerns the question of what the “executive power” entails, rather than questioning the obvious fact that such power — whether extremely minimal or expansive — is vested in the President. At first glance, I like this article and its conclusions. I have a hard time believing that you actually agree with it. Instead you’re just flailing about.

                    In fact, the last paragraph of the article agrees with me: “the executive power was conferred on a single President.”

                    And also from the article is a Madison quote that illustrates why we used to have federalism: “Even within the legislative limits properly defined by the [C]onstitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt..”

                    1. It uses history and word choice to reject the idea of the unitary executive originalist.
                      The extent of the power vested in the President, versus what may be delegated and constrained by Congress is exactly the issue.

                      Madison famously straddles the issue of executive power, starting constrained and ending broad. You can find quotes of his supporting nearly any narrative.
                      I would note that the quote was about the Alien and Sedition Acts, and continues “In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased.”
                      So not really the attack on the administrative state you take it for.

                      Though again, putting on your tricorner and yelling about the Founders True Intent is not going to get you much of anything other than self-righteous.

                    2. Sarcastro, saying really dumb things over and over again will not make them true. Your own article that you posted entirely agrees with me, and you still do not understand it.

                      The issue with the unitary executive is not about what powers a President has versus Congress. The issue is that it must be one of those two — and not a third option of unelected bureaucrats.

                    3. No, ML, it does not.

                      You want to expand the Presidency beyond any internal controls and also kill the administrative state.

                      Both of those are authoritarian. Distribution of power has it’s own issues, but that’d be statism, not authoritarianism.

                    4. “[T]he executive power was conferred on a single President.”

                      Julian Davis Mortenson, ARTICLE II VESTS THE EXECUTIVE POWER, NOT THE ROYAL PREROGATIVE, Columbia Law Review.

                      https://columbialawreview.org/content/article-ii-vests-the-executive-power-not-the-royal-prerogative/

                    5. Your thesis is about internal controls being unconstitutional, not about whether we have 2 consuls or whatever.

                      Telling you keep having to change your argument to defend the unitary executive.

                2. ” We were talking about the rule of law, such as the Constitution which vests the executive power in a President.”

                  It doesn’t create much executive power before handing it over to the President, however. There’s a reason the Legislative branch comes in Article I while the Executive doesn’t show up until Article II.

          2. Nihilism is a principle.

            1. As is National Socialism.

          3. Sarcastr0…I was reading the exchange with ML, following along, nodding my head in agreement with the both of you. And then this statement stood out = And as that sinks in, you get more and more willing to countenance authoritarian means to get you to where you want to go. I did not read upthread or downthread a case for being ‘more authoritarian’ from ML. Quite the opposite. My interpretation of where ML is going is he advocates a severely limited Federal government that operates solely within enumerated powers. Personally, I favor repeal of the 17th amendment. Followed by the 16th. To achieve the same thing, of course. 🙂

            I cheerfully admit to being out of the mainstream with my advocacy of repealing the 17th amendment. I have done what a good citizen should do: I publicly advocate for my beliefs, and I wrote my representatives. Guess what…no takers. Sadly, I do not think my country will repeal the 17th in my lifetime, but I tried. Sigh.

            The bigger point: Knowing I won’t prevail on this point does not make me a fan of the federal government being more authoritarian.

            1. Nothing authoritarian about calling for repealing the 17th. I don’t think it’ll get you where you think it will, but that’s neither here nor there.

              Look at what he is asking for.

              – Enable the President to fire any executive branch employee for any or no reason at any time.
              No internal or external controls allowed, even when Congress delegates it’s power. Hard not to see this as a concentration of power in the Presidency. Heck, it’s damn near royal.

              – Eliminate any supposed “independence” of executive branch agencies.
              This seeks to concentrate distributed power in one person. Authoritarian.

              – Reverse court decisions to eliminate so-called incorporation doctrine, substantive due process.
              States no longer need abide by the Bill of Rights, and screw the 9th Amendment. This vastly expands the potential ambit of government at the state and nonstate level.

              – Propose a Constitutional amendment to pass the 14th amendment, which was never legally ratified.
              This is just making fun of the OP.

              ML wants to get rid of the administrative state and to return to some agrarian idyll where spending is at the 1850s level.

              But he doesn’t mention that here. Because to get there, first you need to gather sufficient power to destroy what America has built without anyone able to object.

              1. None of these proposals increase the power of the executive branch one iota, they would just establish that it’s the elected member of the executive branch who’s entitle to control it.

                I agree with you that incorporation was the intended purpose of the 14th amendment. Wholesale, not selective, incorporation. But, “and screw the 9th Amendment. “? When was the last time the 9th amendment was actually applied by a court? It’s dead, just like the 10th.

                “ML wants to get rid of the administrative state and to return to some agrarian idyll where spending is at the 1850s level.

                But he doesn’t mention that here. Because to get there, first you need to gather sufficient power to destroy what America has built without anyone able to object.”

                And not, “to get there, first you need to persuade a majority of the population to agree that this is a good idea”?

                1. “None of these proposals increase the power of the executive branch one iota, they would just establish that it’s the elected member of the executive branch who’s entitle to control it.”

                  I reject your choice of “entitle(d)” in this sentence. We elect a President, not a King. There is no entitlement, only responsibility. This misunderstanding is what’s wrong with the present office-holder.

            2. ” My interpretation of where ML is going is he advocates a severely limited Federal government that operates solely within enumerated powers. ”

              We tried that for eighty years, and it doesn’t work. Some of the states operated a society that allowed one set of human beings to own another set of human beings. Can’t get much more authoritarian than that.

              ” Knowing I won’t prevail on this point does not make me a fan of the federal government being more authoritarian.”

              Why this presumption on your part that only the federal government can be authoritarian?

    4. That 14th Amendment suggestion really adds to the credibility of the rest of the comment. (And assuming you actually believe that crap, are you leaving the 15th amendment out on purpose?)

    5. “Propose a Constitutional amendment to pass the 14th amendment, which was never legally ratified.”

      That’s an interesting issue — and one raised by Goresuch’s decision on the Oklahoma tribal land. As I understand it, the 13th, 14th, & 15th Amendments were ratified by those states which were officially in the Union at the time (i.e. the North) but the problem is that the Confederacy was never officially recognized, and those states were considered to still be in the Union.

      That’s how Andrew Johnson became President — he was the US Senator from Tennessee and (unlike others) remained in DC when Tennessee seceded. As the US didn’t recognize the secession, it had to recognize Johnson as the USS from Tennessee and then in 1864, Lincoln replaced Hannibal Hamlin with Johnson for VeeP.

      But ML has a point — with Goresuch’s decision, one could make a credible case that those three amendments weren’t properly ratified.

      1. No – the 13th was properly ratified. The 14th was not.

      2. The article ML posted has some of the details, but the procedural history with the 13th is sufficiently different from the other two that they probably shouldn’t be lumped together.

        In any case, the article also notes that the Supreme Court has ruled on the topic, declared the 14th amendment valid, and is unlikely to take up the issue again.

        1. Right. But as long as we are idly discussing ways to “repair the rule of law” then what about the article’s suggestion, “Congress and
          the states should repropose and ratify the Fourteenth Amendment.” 🙂

      3. It’s spelled Gorsuch, and setting aside that it’s the Supreme Court’s decision, not Gorsuch’s, it has literally nothing to do with the issue.

  3. This should probably be filed with Mark Tushnet’s plan to “crush” Republican lawyers and judges after Hillary’s election.

  4. How exactly is making the federal capital part of a state going to enhance the rule of law? That just sounds like creating a new problem, not fixing a long standing disenfranchisement issue. But it keeps you from having two new democratic senators so I see how you’d benefit from that proposal.

    1. It is exactly what happened to Arlington, the portion of DC that was taken from Virginia was returned to Virginia.

      It will give the residents of DC voting representation in Congress, although as part of the Maryland delegation.

      One proposal which makes a certain amount of sense is to retain the Monumental Core consisting of the major government buildings and other significant features under federal jurisdiction.

      1. Retrocession is not the same as statehood. Are you under the impression that Arlington County gets two senators of its own?

        1. Sorry, I misunderstood the chain. I think rsteinmetz and I agree.

      2. The problem is that the residential areas of DC were never anticipated as being residential. It was presumed that those (who were eligible to vote) would be voting in the states they came from — and remember that this was in an era of property requirements to vote and hence a lot of the servant class (even free) couldn’t vote.

        Giving it to Maryland sounds like a good idea.

        1. “The problem is that the residential areas of DC were never anticipated as being residential.”

          This is plainly not true. George Washington specifically wanted the already existing town of Alexandria to be in the borders of the District, and Georgetown existed at the time as well. At 10 miles by 10 miles, the District way too big to not be intended to include residential areas (and the L’Enfant plan makes no sense if you are imagining a city full of only government buildings).

    2. How does it not solve the disenfranchisement issue? Are the current residents of Maryland disenfranchised now, such that voting in Maryland does not make them adequately enfranchised?

  5. Not mentioned is item #0: maintain the fiction that the US has rule of law anywhere but the insubstantial shit the the politicians haven’t gotten around to yet. Doesn’t the Constitution guarantee the sanctity of contracts? “Shall not be infringed”, economic rights, freedom of association, the list is endless, because as fast as anyone could type them in, Congress and the Bureaucrats (catchy band name!) could abrogate them faster.

    1. ” Doesn’t the Constitution guarantee (list)”

      It goes to define processes by which rights may be lawfully limited, i.e. due process, compensation for takings, etc.

      1. Precisely. “Rule of law” means any old law can do whatever the government defines it as. Tell me how your “due process” is any different than Reichstag rubber-stamping Hitler, or Stalin issuing decrees.

        The only difference is we haven’t reached their levels of rubber-stamping … yet.

        1. Herr Trump is working on it. He’s got his man in at Justice, and sort-of at Homeland Security. “Baby cages? sounds good to us, boss. stormtroopers grabbing citizens on city streets in unmarked vehicles? Good idea, boss.”

    2. There are many, many countries where rule of law is vastly worse than it is here.

      But this isn’t about pushing for the America you want, as all patriotic Americans do, it’s about delegitimizing everyone who doesn’t concur with your vision, including the existing system that protects your right to post such nonsense on the Internet.

  6. Most of this list has nothing to do with the rule of law. Rather, it seems directed at shifting power away from the President, to either the permanent bureaucracy, or the legislative branch.

    The latter is certainly defensible, the former not so much.

    1. My reaction as well. Not reforms at all. On the “Disqualification of family for POTUS:” how is that constitutional? Well, yes, they admit it isn’t and seek a constitutional amendment, but methinks that would be anathema to fundamental principles.

      1. Well, sure, but now that She missed Her turn at the wheel, it’s OK to ban family members from seeking the office.

        1. To be honest, I wouldn’t be averse to an amendment blocking political dynasties. Two Bushes, a close chance of a third, then a close brush with two Clintons?

          Things like that aren’t a sign of a healthy democracy, IMO.

          1. Brett, I am open to the idea = an amendment blocking political dynasties….with a great deal of trepidation.

            So how does that exactly work in practice? Do you need to skip a generation (John Adams, John Quincy Adams) before it becomes ok?

            1. Agreed, the devil would be in the details. I suppose something like, “No person directly related by blood or marriage to anyone who has held the office of President shall be qualified to hold that office.” That would exclude parents, children, siblings, and spouses.

              I’m not terribly upset if grandchildren come along, that’s enough of a delay that a dynasty is unlikely to develop.

    2. Away from the President, because the President is currently a Republican. Many, if not most, of those pushing these “reforms” would be singing a different tune if/when a Democrat was living in the White House.

  7. I think we need a new amendment:

    No state shall limit the ability of any US citizen to cast a vote in a federal election.

    To put an end to voter suppression efforts.

    Later, we might want to add an amendment that reduces a state’s number of Congressional representatives and electoral votes for gerrymandering.

    1. And it will be enforced just as the other amendments are. “Freedom of speech and the press” are well-understood to not include military secrets, slander, libel, defamation, obscenity, and whatever else upsets the ruling classes. The “right to keep and bear arms” is well-understood to not tinclude kids, felons, senile adults, prisoners, anyone within 1000 feet of a school, lots of government property, you name it. This did not originally encompass standard magazines, machine guns, short barrels, bayonet lugs, detachable magazines, and other features, but they are in the process of being grandfathered into historical lore.

      1. The signers were well aware of technological progress. Arms then and now are the common arms of the day, just as the freedom of the press is not now limited to hand set individual letter type presses.

    2. I think your first proposal needs a bit of detail. For instance, I live in South Carolina, I’m a US citizen. Suppose I said to myself, “Self, my vote for Trump is wasted here in South Carolina, he’s going to carry the state by a landslide. I should drive over to North Carolina on Election day, and vote there!”

      Are you saying that North Carolina wouldn’t be permitted to refuse to let me vote there? Maybe I feel like voting in Charlotte, even though I live near Greenville; Charlotte can’t tell me to vote where I live, not where I feel like voting? Maybe I want to take election day off, and just drive around from one place to another, casting multiple votes. The state can’t stop me from doing that?

      Most of what is being called “vote suppression” these days are just measures, like voter ID, that are necessary to confirm that you’re actually entitled to vote in the place where you’re attempting to vote.

      Similarly, can we have a rigorous definition of “gerrymandering” before an amendment sanctioning commission of it?

      1. I don’t think we need a rigorous definition of gerrymandering so much as a rigorous definition for what it is that is attempting to be accomplished. You start off with a baseline requirement that districts be drawn as compactly as is feasible, and then you forbid partisan dilution. The language would need a bit more massaging than that, but that would be the general drift.

        1. That contradicts the VRA. Why do you hate minorities? Violence against Black and brown bodies!

          1. I’m a principled opponent of gerrymandering no matter who it benefits.

            1. *Gerrymandering.

              Opposed except for….Reasons. That aren’t “Gerrymandering”.

              1. Come on, AL. Just conjuring up imaginary inconsistencies and accusing a poster of them is not a useful exercise.

              2. Ok AL, you’re on. Please enlighten me as to the reasons I would support gerrymandering.

                1. Alabama’s 7th Congressional District.

                  1. My analysis begins and ends with Alabama’s seventh district is not compactly drawn and is therefore presumed to be improper. I don’t care who benefits.

                    1. uh huh… You don’t care about wiping out the Congressional Black Caucus? Eliminating 20+ Democratic votes in the House?

                    2. Now, wait a minute, Armchair. I’d be as happy to see 20 Democratic votes eliminated from the House as anybody, but eliminating the black caucus’s gerrymandered safe districts would probably marginally increase the number of Democrats in the House. In order to produce majority black districts they’re creating districts that pack in a LOT of Democrats, who might in a non-gerrymandered map have elected more Democratic reps, even if fewer of them were black.

                    3. Hi Brett,

                      You would think that, but…

                      For example, Alabama’s 7th district. The rest of the state is hard GOP, those votes would just…disperse if there wasn’t a majority minority district. Indiana’s 7th district is the same way. Missouri’s 5th district (a D+7 district surrounded by R+15 or mores).

                      In a lot of the south and other areas, to get these Gerrymandered Black caucus districts, they’re basically surrounded by HEAVILY Republican areas.

                      There are a couple areas where they “pack them in” and what you are worried about might occur. But there are others, where they string a narrow majority black district in between heavily GOP districts. (And there are others, where it just doesn’t matter, like some of the NYC districts).

                    4. Armchair Lawyer, gerrymandering is an affront to democratic elections themselves. It is vile and detestable and I am against it, full stop, no matter who benefits, including those districts in which my desired result benefits. I don’t know how to say it any more plainly than that. I get that you think everyone on the left is an unprincipled hack, but there are some of us for whom principles really do matter. So stop telling me what I believe.

                      If a state has ten congressional seats, and the collective congressional seat vote in that state is 60% Republican and 40% Democrat, then one should expect that that state will send 6 Republicans and 4 Democrats to Congress. Same thing in reverse if the cumulative vote total in the state were 60% Democrat and 40% Republican. It’s not always going to work out that way for a variety of reasons, including geographical realities, population density distributions, and a few odd other non-partisan factors. But it should come pretty close. I like the idea of voters choosing their politicians rather than politicians choosing their voters.

        2. There’s a lot of interesting tradeoffs with how districts are drawn, and they aren’t necessarily even about partisan advantage. For example, do you want to optimize for factors like compactness (which you do) or to try to make sure that you have competitive races for at least some of the seats? Fivethirtyeight had a pretty interesting look at Arizona’s experience with nonpartisan redistricting and some of the tradeoffs involved:

          https://fivethirtyeight.com/features/want-competitive-elections-so-did-arizona-then-the-screaming-started/

          Despite all the “screaming” in that case, I think it’s better to just require nonpartisan redistricting than to try to define or restrict gerrymandering. Most of the problems with redistricting arise from various groups attempting to gain partisan advantage, so that’s what I’d try to avoid.

          1. “or to try to make sure that you have competitive races for at least some of the seats?”

            That’s partisan advantage sneaking in by the back door: You know in advance which party compact districts will disadvantage.

            My proposal is to just have a computer generate 10,000 or so maps of compact districts of equal population, completely without reference to voting patterns, and then allow all ballot qualified parties to engage in a process similar to voir dir, each entitled to eliminate 1/(n+1) of the randomly generated maps.

            Then pick one of the surviving maps at random.

            1. “That’s partisan advantage sneaking in by the back door: You know in advance which party compact districts will disadvantage.”

              Not really, and certainly not over long periods of time. It’s true that right now population density is highly correlated with party affiliation, but that’s a recent development and it’s not at all clear that it will be persistent over time.

              Regardless, if your goal was consistent district compactness, many would necessarily include some combination of urban and rural areas since otherwise you would end up with some set of very small urban districts and some very large rural ones. These could be optimized for

              Having said all of that, your idea doesn’t sound crazy to me and seems like a totally valid form of non-partisan redistricting.

              1. Yeah, I agree = your idea doesn’t sound crazy to me and seems like a totally valid form of non-partisan redistricting

                It is a good idea.

                1. It’s a fine idea, but unlikely to ever happen. It’s much more likely that a non-partisan commission would choose it as a basis for doing their work than for a legislature or voters to adopt it directly.

              2. “Regardless, if your goal was consistent district compactness, many would necessarily include some combination of urban and rural areas since otherwise you would end up with some set of very small urban districts and some very large rural ones.”

                No, with the equal population requirement, the size of the districts is driven by population density, and you’re inherently going to get much smaller urban than rural districts. It’s just that all of them would be compact in terms of their ratio of area to perimeter.

          2. “Non-partisan” isn’t.

            California’s experience with “Non-partisan” gerrymandering is telling.

            1. Please elaborate for those of us who haven’t been reading Breitbart lately.

              If your theory is that California’s Congressional delegation now skews a lot more Democratic than it did in the 00s, this is mostly a reflection of the fact the state’s voters have become much more Democratic over the past few decades:

              https://www.latimes.com/projects/la-pol-ca-california-voting-history/

              (Combined, of course, with Trump’s ongoing success at alienating educated suburban voters as much as possible.)

                1. Thanks–that’s a long read so I’ve only skimmed it so far, but it’s interesting and definitely seems like it has lessons about how to avoid partisan influences in a non-partisan process.

                  I’m actually pretty confused by the underlying math, though. The article seems to assert that the commission somehow simultaneously locked in partisan advantage for Democrats in some places and at the same time shifted a bunch of new Democratic seats without any shift in underlying voting dynamics. That doesn’t seem possible–the way to make some Republican seats competitive would be to either shift Democrats into those districts or Republicans out, but that necessarily compromises the safety of existing Democratic seats.

                  1. Here’s the general gist.

                    Before 2010 the deal in California was a bipartisan gerrymander to protect incumbants. But then the “Independent Commission” got started. The independent commission were, by law, designed to be complete novices. No political experience whatsoever, as a candidate or aide. Nobody who donated more than a thousand or two to a candidate or a party. Political neophytes who didn’t really understand the dynamics of the state. And they were underfunded, with just a million $ for redistricting. Total.

                    The independent commission had a mission to keep “communities together” for the redistricting. But how were they to do this? How were they to know what communities were to be kept together? They took testimony from various community groups. And here’s where the Democrats were ingenious. They CREATED and organized “community groups” where the community matched the borders the Democrats wanted. Completely artificial groups, manipulating the entire process. The novice commission had no idea. They thought these were real groups. The commission didn’t have enough of a budget to investigate or do things on their own. So, they trusted these “community” proposed borders. (The California GOP didn’t do this…they trusted the natural process. Whoops).

                    What ended up happening was every way the borders could be drawn that would advantage the Democrats, well the commission ended up deciding that way. Because it kept the “community” together. The “community” being a Democratic created group that pretended to be non-partisan.

                    It was one of the great bamboozlings of the early decade.

                    1. I get the shenanigans angle from the article, but it still doesn’t explain how you simultaneously keep all the Democratic seats safe while making the Republican seats competitive since you have to move Democratic-leaning voters into Republican districts to make those seats competitive, which inherently compromises the safety of the Democratic seats.

                      FWIW, I went and looked at the 2012 election results:

                      https://en.wikipedia.org/wiki/2012_United_States_House_of_Representatives_elections_in_California

                      Democrats did pick up 4 seats, but that was on a *13 point* swing in votes (Democrats got 60.6% of the vote to Republicans’ 37.1% in 2012, versus 53.4 to 43.5% in 2010). So the Democrats picked up fewer seats than predicted in the article, despite a very large change in voter preference.

                      The biggest swing came in 2018, when the Democrats got their share of the vote up to nearly 2/3. But considering that the Republicans actively screwed over suburban California voters with their tax bill, it shouldn’t be that surprising that they managed to alienate all the folks there who had been voting R for pocketbook reasons.

        3. Why compactly as possible?

          1. So they don’t end up looking like a salamander.

              1. That’s just a fat salamander at 2 ends.

      2. just measures, like voter ID, that are necessary to confirm that you’re actually entitled to vote in the place where you’re attempting to vote.

        No, Brett. They are not “necessary” at all. They are no-longer-even-thinly veiled ways to stop likely Democratic voters from voting.

        “Necessary to confirm” is bullshit.

        1. Yeah, so says every person who thinks, “My party has this vote fraud thing down cold, how dare you try to make it harder!”

          Yes, you actually do need ID, voter roll purging, signature checks, prohibitions on ballot harvesting, and so forth.

        2. Bernard…would you require a voter to show ID and proof of residency if they were to request an absentee ballot from the local Registrar of voters? Example: Will be out of the country at that time.

  8. Would any President fail to veto most of these proposals? Biden might object to fewer than Trump, but I don’t see him agreeing to all these forfeitures of authority. Candidates don’t run for the Presidency so they can not have the power of the office.

    1. You can’t always get what you want,

      but if you try sometimes…

    2. Schedule them to become effective on January 20, 2025. Nobody knows which party will hold the presidency on that date, so they have no reason to object on the grounds that it limits their own power.

  9. Trump has the right enemies — spiteful and stupid.

  10. Some of these reforms are decidedly the opposite of the rule of law.

    I would love to see tax returns, but what does that have to do with anything other than embarrassing a political opponent? Not rule of law.

    DC statehood? This revolves around the Democrats getting two more senators. They are opposed to splitting up California for the exact same reason. Politically shallow decisions both, and thus not rule of law.

    Expiditing judicial review of demands for records. Sounds good on the surface, as long as the courts remain cognizant of the cheesy use of this so such records can be leaked so as to embarrass a political opponent, much like tax returns. So not rule of law, but standard cover story for political manipulation.

    Enhanced whistleblower protection. Again, sounds good, until you realize such whistleblowing allows a secret group of people to attempt to remove a president. “It’s secret, but trust us when we remove the president.” Sorry, no, the exact opposite of the rule of law, and a direct attack on the kind of crap the constitution is trying to prevent.

    1. Thank you. I’m surprised that it took 1/2 of the comments for someone to recognize that, yes, most of this has nothing to do with the rule of law and everything to do with politicizing decision making.

    2. “I would love to see tax returns”

      Why? They don’t tell you anything relevant to how they will act in office.

      1. They tell you plenty about the kind of person you’re electing. Where does he get his income? Are there potential conflicts of interest from where he gets his income? Does he have financial problems that might make him a security risk? Does he have financial ties to foreign governments? You know, all the list of reasons Trump doesn’t want us to see his.

        1. They tell you gross income and deductions/credits and the names of financial institutions and companies where you own stock that pay you dividends. It tells you zero about security risks, or foreign entanglements or amount of debt.

          Trump’s returns I imagine has K-1s which tells you the name of each company and gross income from said company received by that person.

          You are just a guy who expects to see “Received from Putin $10 million dollars”.

          1. The 1040 itself only gives that information. The attached schedules, W-2s, 1099s, provide considerably more.

            1. “W-2s, 1099s”

              Not part of a return. Look up Obama’s on line returns, they don’t include these.

              I included “schedules” in what you see, they don’t provide what you imagine.

          2. And by the way, the mere fact that Trump is going to such great lengths to keep them secret strongly suggests that they provide more information than you’re suggesting.

            1. Maybe he just likes his privacy.

              Maybe he just likes to troll people like you.

            2. Yeah, the “Birthers” thought that the mere fact that Obama was fighting access to his birth certificate in court meant that there was something about it that would hurt him. They were idiots, too.

              Sometimes you fight access to some meaningless document because you know there’s nothing to find there, and you want your idiot foes to obsess about it, instead of looking around and finding something that might actually help them.

              1. I would bet against that being the case here. If there really were nothing in the tax returns to cause harm, and Trump really were the successful businessman he claims to be, that he would pass up an opportunity to show it off?

              2. I think you’re right about this being more about privacy and trolling the opposition. Bush 43 did something similar in 2000 when after making a statement about past illegal drug use that people thought might have meant he may have used them before a particular date, he said that he wasn’t going to answer any other questions on it. The media demanded further answers, Bush refused and the base rallied around him for not playing their game and he went on become the nominee and to win the presidency.

        2. Where did Biden get his money? Certainly not from his salary as a federal employee. Or Hillary Clinton, whose family wealth had grown from essentially zero to over a hundred million between when they left the WH to when she ran for President, plus north of a billion dollars in their family foundation/slush fund. At least Biden has had the decency to shovel the money primarily to other family members.
          Al ret
          Point is, that whatever disclosure there is mandated, it won’t be enough for partisans on the other side. Getting Trump’s personal returns wouldn’t have provided the expected smoking gun, because his wealth, and thus income, was tied up and flowed through numerous (one estimate is well north of 100) other legal entities.

          1. Presumably, as with most well-known former politicians, book deals and speaking engagements.

            You need more than ‘had no money; now has money’ to imply corruption.

            And no, a narrative of ‘I hate politicians’ won’t do it.

            Most politicians (Biden excepted) are already rich as hell. Politics is screwed up, and corruption is around, but that’s not the place to look for the major pathologies.

            1. The Clintons complained that they were dead broke when they left the White House. And yes, much of their money was apparently made on speaking fees and book deals. But most of both of those were barely hidden bribes. Politicians rarely sell enough books to cover their advances, if they had normal book contracts. Almost four years down the road, and Obama apparently hasn’t gotten around to finishing the book he got paid for years ago (while Michelle did complete hers). Do you think that the publisher has asked for their “advance” back from him? Neither do I.

              1. You get this info…where?

        3. Should a lawyer be required to list his clients, including those never represented at trial?

          1. I don’t know about listing clients, Pete Buttigieg did have to disclose his clients during the campaign. I would say that a President must cut all financial tie with a former law firm, including any residuals he is getting.

            1. Pete Buttigieg disclosing the names of his past clients when he worked as a management consultant (with his firm and the clients’ permission) wasn’t an election requirement, it was his caving in to his opponents’ demands because his firm represented other clients that they disagreed with. Basically it was just an attempt to embarass him and he didn’t have the intestinal fortitude to tell them to pound sand.

  11. “Statutory protection for special counsels to allow challenge to removal.”

    I despise Trump for many reasons, but Trump didn’t remove Mueller. He should have. We now KNOW, beyond any doubt, that his appointment was an abuse of power, an act of sedition, based on false FISA applications and other nefarious lies.

    We see perjury traps set, deletion and mischaracterization of Carter Page’s status as a CIA asset and somehow this means that we should make it harder to rid ourselves of a rogue prosecutor?

    1. Sedition.

      You know an easy test for when someone is a right-wing authoritarian?

      1. That doesn’t address his valid points. Care to do that?

        1. He didn’t make valid points. That an FBI lawyer who was not part of the OSC altered one email does not make Mueller a “rogue prosecutor.” (I do like how Trumpkins have both convinced themselves that Mueller was rogue and that Mueller exonerated Trump, though.)

          1. No, but running an investigation for two years to determine whether there had been collusion between Russia and the Trump campaign after having determined that there wasn’t, and almost three years after elements of the FBI who worked for Mueller knew that there weren’t, makes them rogue prosecutors. Using an intentional misinterpretation of an Obstruction of Justice statute against Congress and the President (arguing that shutting down the Mueller investigation would be Obstruction) indicates rogue prosecutors. Threatening to charge Gen Flynn, his son and attorneys under FARA, as well as knowing suborning perjury about his §1001 plea, in order to induce his guilty plea, indicates rogue prosecutions. Running the investigation for 2 1/2 years and never indicting anyone they could get jurisdiction over for the alleged Russian collusion indicates rogue prosecutors. Etc.

            1. No, but running an investigation for two years to determine whether there had been collusion between Russia and the Trump campaign after having determined that there wasn’t,

              Nobody has determined that there wasn’t. Mueller, indeed, expressly refused to make any determinations about collusion because it wasn’t a defined legal term.

              Using an intentional misinterpretation of an Obstruction of Justice statute against Congress and the President (arguing that shutting down the Mueller investigation would be Obstruction)

              It would of course be. But I don’t know what you mean by “using” this alleged-but-not-really misinterpretation. Trump didn’t fire Mueller, and Mueller didn’t charge Trump with it, so this is purely hypothetical.

              Threatening to charge Gen Flynn, his son and attorneys under FARA,

              There’s no evidence for either of the last two; as for the former, it’s unclear how a prosecutor prosecuting someone for breaking the law makes him rogue.

              as well as knowing suborning perjury about his §1001 plea,

              This is gibberish.

              Running the investigation for 2 1/2 years and never indicting anyone they could get jurisdiction over for the alleged Russian collusion indicates rogue prosecutors

              Wait, so investigating but not prosecuting someone is now being a rogue prosecutor? It’s almost as if your view is simply L’état, c’est Trump.

            2. Paul Manafort, while managing the Trump campaign, provided detailed polling information to Oleg Deripaska. It wasn’t until September 2018 that Manafort agreed to cooperate. Only Manafort didn’t cooperate. Rather than revealing the purpose of providing the polling data, he lied, denying that he had provided the polling information in the first place.

              The only way anybody on Mueller’s team could have known prior to Sept. 2018 that a conspiracy case couldn’t be proved would be for them to somehow know that Manafort would ultimately refuse to cooperate. And nobody who was involved in the Mueller investigation knows today, much less in 2017, whether the transfer of the polling data was part of a conspiracy to interfere in the election.

              1. Yes, and Manafort wasn’t the only one who refused to cooperate. Trump himself refused to be interviewed — only evasively answering written interrogatories — and Trump Jr. wouldn’t agree, either.

                And at the time that Bruce is referring to, Mueller hadn’t spoken to any of the key players.

          2. One email? At one point In history, lawyers would go into high dudgeon over something like that. Now? Since Trump is the target, you seem to want to relax that a bit. As for the rest of your comment, you sure are putting a lot of words in my mouth.

            It’s not a matter what “Trumpkins” convince themselves of. It’s a matter of law on its face. A federal prosecutor who launched and prolonged an investigation based on false premises, incorrect warrants and hearsay. Orange Man Bad isn’t a defense of what happened here.

            1. Complaining that an investigation was launched based on hearsay shows a complete misunderstanding of everything that’s happening. It’s a category error. Hearsay is an evidentiary term applying to the admissibility of testimony in court; it has nothing to do with the investigatory stage of a case, and launching an investigation based on something that would be hearsay if it were introduced in court is perfectly proper.

              I don’t know what exactly you mean by an “incorrect warrant,” but if it refers to the altered Clinesmith email, no investigation was launched based on it, and it had nothing to do with Mueller. so it’s hard to see how it could make Mueller a rogue prosecutor.

        2. Yeah, his points are a conspiracy theory that’s now received wisdom on the right and I’ve stopped trying to argue.

          But in general I find it’s not worth engaging with people who use sedition like it’s a legit crime.

    2. One of the big reason that Mueller wasn’t removed much earlier was that his prosecutors had invented (apparently with the help of your Lawfare buddies) a novel misinterpretation of an Obstruction of Justice statute. They were arguing that firing them (or anything else that interfered with their investigation) was Obstructing Justice. The only clean way to overcome that was to replace AG Sessions with an unrecused AG, who then held the Mueller SC investigation to DOJ mandated statutory interpretations. The Mueller Obstruction interpretation had never been tested in court, because it violated centuries of precedent about legal interpretations, going back to before our founding as a country. Almost immediately, after AG Barr was confirmed in office, he held their feet to the fire. He asked about what they were investigating. They had completed the Russian collusion investigation over a year earlier. That left Obstruction of Justice, and couldn’t legally justify, under DOJ rules And statutory interpretations, a single instance of Obstruction of Justice supposedly found over 2 1/2 years of investigation. No collusion and no obstruction meant no reason to keep the investigation open.

      1. Let me add that the Mueller witch hunt is one very good reason not to give the permanent bureaucracy any more power. Mueller himself was a figurehead, brought in for his reputation, to shield the prosecutors from the charge of political bias (every one was a Democrat, most had recently contributed to Democrats, and lead prosecutor Andrew Weissman had attended what was supposed to have been Clinton’s private victory party).

        Their real purpose was never to detect and prosecute collusion between Russia and the Trump campaign. Several of those working for the investigation (e.g. Weissman, Strzok, Page) had known since at least early fall, if not summer, of 2016 that there hadn’t been any collusion, but rather, that it was all smoke and mirrors, with the top tier of the FBI collaborating with the Clinton campaign.

        With the exception of FBI Comey, DAG Yates, and possibly CIA Dir Brennan, pretty much the rest of the participants in SpyGate, including everyone in the Mueller SC investigation team, except for Mueller himself, were career federal employees, who tried to take down, or at least severely damage the President from whom they derived all of their legal, Constitutional, and moral power and justification.

      2. Literally every word in this is made up. There was no misinterpretation of — indeed, no novel interpretation of — anything. There were no such “centuries of precedent” of any “legal intepretations.” You, in short, are — to use a technical legal term that actually does go back centuries — full of shit. Nobody ever concluded that there was no collusion, and the evidence of obstruction was overwhelming and went far beyond a “single instance.” (And did not involve firing Mueller, of course.) The only reason Trump was not prosecuted for obstruction was because of an absurd OLC opinion that the president can’t be prosecuted for a crime.

    3. Just a historical note – it was Obama who removed a bunch of IGs, and his DAG who removed oversight over FISA applications from the DOJ IG. It has only come out recently, after that oversight was restored to the DOJ IG, that the DOJ IB and FBI ID routinely submitted FISA applications to the FISC without required Woods Files, that provide existing exonerating evidence. It very much appears that most if not all, of the four Carter Page FISA applications were submitted without Woods Files attached. But it wasn’t just for politically sensitive warrant requests – IG Horowitz found that none of the FISA applications he reviewed were complete. But that was after oversight over the preparation of FISA warrants had been restored to the IG under AG Barr, oversight that had been removed by DAG Sally Yates under Obama.

  12. This list supports the “Rule of Law” like the group called “antifa” actually opposes fascism.

    1. Actually, from their point of view, they probably do. AntiFA was originally a Marxist group created by Stalin to oppose their socialist enemies in Germany, who just happened to be German fascists. Thus, if they define anyone opposing Marxism as “fascists”, they can Call themselves anti-fascists. Which very much appears to be what is going on here.

      1. “from their point of view,”

        Sure, that is why I said “actually”.

  13. “Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation.”

    St George Tucker

  14. Some of these proposals to put limits on the President’s exercise of discretionary powers are a good idea, but the sponsors’ motives become highly suspect when they throw in advocacy of such partisan aims as statehood for the District of Columbia.

  15. I find this infuriating — Trump hasn’t even lost yet, and running against so senile a candidate that Sane America can’t help but vote for Trump — with Trump winning in a landslide. And then the left will “find” enough boxes of votes to try to steal it from us.

    And that’s the point where a one-sided civil war becomes a two-sided civil war. It won’t be pretty.

    The list is the left’s wet dream — although didn’t the Kennedy Administration include family members — starting with his brother as AG… And where were all the complaints when B. Hussein spent eight years running roughshod?

    1. Ignoring your usual boner over political violence, what in the world is partisan about the list?
      Hatch Act? Tax returns? Inspector General independence? whistleblower protection? Congressional oversight? Pardon reform? Familial disqualification?

      1. They are all directed at supposed Trump “abuses”.

        1. Weak. That’s the entire impetus behind the essay; don’t be circular.

          They’re forward-looking, not aimed at Trump.

          And they all look nonpartisan as a policy matter.

          1. I kinda agree with that, in that the exercise seems to assume that Trump is going to lose the election, so it’s presumed these ‘reforms’ wouldn’t apply to him. At least, that’s the way it’s being sold. So, yes, facially forward looking.

            OTOH, the obvious premise of the effort is that Trump has somehow damaged the rule of law, such that it needs repair. So, it really IS true that the exercise is mostly about getting another slam in against Trump, and the forward looking aspect is just cosmetic.

            Realistically, most of these proposed reforms ARE going nowhere, because they ARE aimed at Trump; Either he loses, and the perceived need for the reforms goes away, or he wins, and is in a position to veto any ‘reforms’ that are just disguised accusations.

            What are conspicuously missing are proposals to “repair” the rule of law in ways that accept that Trump himself was wronged. Something to prevent an outgoing administration from spying on an opposition campaign, something to reduce lawfare against administrations, nationwide injunction reform. Every one of these proposed “reforms” is focused on an accusation against Trump, not an accusation BY Trump.

            So it is a very partisan exercise indeed.

  16. Some of these are good ideas. Others are just stupid. Few have anything to do with the “rule of law”.

  17. Good list to start with. I may not agree with all the ideas but many are good. I see many comments that these are not “rule of law” but many of them really exactly that. These are ideas to demand the oversight our founders felt necessary to ensure our democracy. While we have seen oversight used to harass that is a by product that many Presidents have had to endure. Most have taken it in stride, with confidence in the decisions they made. That the current President finds oversight a harassment says more about him than those doing the oversight.

    1. It was harassment. The Mueller SC investigation lacked a factual predicate from Day 1. Members of the investigation (e.g. Weissman, Strzok, Page) knew from at least fall, and probably summer, of 2016 that the entire justification was fabricated, based on opposition research funded by his political opponent. They knew all along that the Steele Dossier was fabricated out of thin air, and found by no later than January of 2017 (FBI interview of Steele’s primary sub source) that much of it was the result of bar talk in DC. And, they also knew that Carter Page had been a CIA asset, and had testified for the FBI as late as March, 2016, against Russian oligarchs, and doing that had compromised at least 3 Russian agents. Gen. Flynn had, all along, reported everything he did with foreign nationals, up until the election, to the DIA, which he used to head. Etc.

      As for the impeachment, Congress was interfering with Trump’s ability and plenary authority to conduct foreign policy – primarily it seems because a NSC holdover, Lt Col Vindman, believed that he, and other career government employees, be in charge of making foreign policy. Congress had no oversight authority over Trump’s call to the Ukrainian President, wouldn’t even if Congress passed a law saying that they did, and certainly not the Intelligence Committee. Yet, they impeached anyway.

      1. “ Congress had no oversight authority over Trump’s call to the Ukrainian President, wouldn’t even if Congress passed a law saying that they did, and certainly not the Intelligence Committee.”

        Which, BTW, is one big reason not to give Congress independent subpoena power. There must be redress in the courts if and when Congress intrudes into affairs of the Executive where they have no business being. They have oversight over the departments and agencies because they created them. But that wasn’t what happened in the impeachment investigation. There they were trying to utilize their non existent oversight authority to directly inquire into and interfere with Presidential decision making while engaged in his plenary authority and responsibility, of conducting foreign policy, in the White House, seat of his Executive power. Congress May have had a prurient interest in that phone call. They just didn’t have a legitimate, Constitutional, interest in it.

        Moreover, turnabout is fair play. Do they seriously want the FBI investigating leaks of classified material by members of Congress? Senators Feinstein and Warner, along with Congressman Schiff, all members, at the time, of the Gang of Eight, appear to have routinely leaked classified material.

      2. My point is that many other Presidents have dealt with oversight, that they may also have seen as harassment. Presidents have always take this in stride with confidence in their decision making. Trump is essentially a whinny little person. If he had confidence in himself and his administration he would not have tried as hard to stop the Mueller investigation and would have proceeding doing his job confident in the outcome. Frankly if he had confidence he would not have fired James Comey an action that started the Mueller investigation. Like wise if he had confidence in his ability he would not need to strong arm another country to issue false accusation against a political opponent.

        1. I like your style you should head into the hood and tell blacks to start taking police oversight in stride. Explain that they can look to whites for examples of amenable interaction with police oversight. Let me know if you need any funding to get started. My charitable trust has a lot of money that needs to be dispersed by the end of the year.

      3. Members of the investigation (e.g. Weissman, Strzok, Page) knew from at least fall, and probably summer, of 2016 that the entire justification was fabricated, based on opposition research funded by his political opponent.

        Every word of this is a lie, including “and” and “the.” You are a sad individual.

        1. Just to illustrate: Weissmann (note the spelling) did not even become a member of the investigation until a year after you claim he knew the results of the investigation that had just gotten started.

          The investigation was not based on the Steele dossier, as has been repeatedly explained, and the IG report expressly found that there was legitimate basis to begin the investigation.

  18. Several of the proposals are likely to violate Separation of Powers. So much for rule of Law. Controlling staffing at the White House? I don’t think so. And issuing subpoenas has always been an Executive power. Ditto for limiting the President’s Pardon power. Worse there maybe – the proposals there invariably allow federal employees to overrule the President.

    1. First any number of Federal employees may over rule the President. Most notably judges. Second I have no problem with Federal employees overruling the President if it is within defined limits of law or their jurisdiction. The President has broad authority but that is limited and in some small areas an employee may have overriding authority. So after the 911 incident the President was put on Airforce One and put in the air. It was military and security people in charge until they determined the President was safe and could return to the ground.

      1. Judges are not members of the Executive Branch. And this wasn’t an employment issue, but the conduct of foreign policy. The government employees involved there had no statutory or Constitutional power to overrule or override the President.

        But note that Trump did not fire LT Col Vindman. He had not lied as Comey, McCabe, and Strzok had, so there was no real justification for firing him for cause. But he was passed over for promotion, and retired shortly thereafter. And being passed over should have been expected – he had been openly disloyal to his Commander in Chief.

        1. Are saying that loyal to the Commander in Chief overrides loyalty to your country?

          1. You present a false choice = loyalty to your country versus loyalty to the Commander in Chief

            1. We have oaths, and they are not fealty to the CiC

            2. I did not present that choice Trump did.

            3. Loyalty to the ELECTED commander in Chief is loyalty to the democratic processes that govern the country. Vindman wasn’t elected to make policy, Trump was.

              1. In the big picture, the legislature is elected to make policy, and the executive is elected to carry it out.

    2. And issuing subpoenas has always been an Executive power.

      No. It is a judicial power. But it has been a longstanding legislative power as well. (There are also some statutes authorizing administrative agencies to issue administrative subpoenas. Whether those are constitutional or not, they exist only to the extent Congress grants them that power; they are not an inherent executive power.)

      1. Meet you halfway here: subpoena power is related to the courts, and everybody involved is subject to judicial power. But it’s the attorneys who draft them, not the judges. And one of the attorneys who works in the federal criminal courts works for the Executive, in the buildings that belong to the judicial.

        Enforcing subpoenae is unambiguously executive.

        1. We draft them, but only as authorized by the courts to do so. Fed. R. Civ. P. 45 grants me as an officer of the court the power to issue a subpoena in the court’s name; I can’t just do it. (Note that non-attorneys acting pro se still must get them from the court clerk.)

          1. That’s what I said., except for this part:

            ” Fed. R. Civ. P. 45 grants me as an officer of the court the power to issue a subpoena in the court’s name; I can’t just do it”

            You could just do it, if you wanted to. Whether anyone pays attention to it without the power of the courts behind it is entirely a different question. And behind that, the courts rely on the executive to persuade recalcitrant recipients to comply to the court’s demand (that was made by one of the parties’ representative(s).

            1. Yes, I can do it in the same way I can hack my adversary to death with a chainsaw — it’s physically possible, but would be illegal. So was that really a worthwhile observation on your part, or just wasting everyone’s time?

  19. And that’s the point where a one-sided civil war becomes a two-sided civil war. It won’t be pretty.
    So many on the alt-right (you don’t see mainstream Republicans making these statements) warn that “X” will bring on Civil War II, need to “water the Tree of Liberty” etc. that I almost want to see them put up or shut up.

    1. They’re under the misapprehension that they have all the guns, so starting a shooting war can only work out in their favor. The mainstream Republicans know better, which is why they aren’t talking the talk that might lead to a need to walk the walk with a target on their back.

  20. “Repairing The Rule Of Law” is a pretty ambitious title for “Poking Trump In The Eye With A Stick”. If you want to start repairing the rule of law, I’d suggest overturning Auer and Chevron might be somewhat higher on your list than keeping JFK from hiring his brother Trump from hiring his family.

    1. If you want to poke Trump, you just decline to provide SS protection when he wants to leave Washington.

      “keeping JFK from hiring his brother ”

      RFK at least went through Senate conformation. Trump can’t even keep his cabinet fully staffed… or is Jared now running Homeland Security, too?

  21. LOL…

    That was a good laugh, insomuch as it was a Democratic wish list, and not anything really related to the “rule of law”.

    1. What about it looks like it’s seeking a partisan outcome to you.

      I’ll spot you the DC Statehood. But you said wish list, so you got a lot more to go.

      1. LOL. You’re already making exceptions. Game over man, game over. And the devil is in the details. And when things happen.

        1. You got nothin’ I see.

          1. I’ve already won this argument. You already conceded. Nothing more is needed.

            1. “I’ve already won this argument. You already conceded. Nothing more is needed.”

              this looks a lot like doubling down on “got nothing”.

  22. Re: Divestature of investments

    We want citizen statesmen. We do not want professional politicians. We have had too many academics. I would much rather have and Andrew Yank or Jeff Bezos or Elon Musk as president. Requiring divestiture is 180 degrees out of phase with what public policy should be.

    The founders could never have intended that. Starting with Washington and Jefferson most of them would have to divest their family farms. Absurd.

    1. Not sure who “we” is, or what you’re even responding to. Your comment is the only one mentioning divestiture, or investments, or divestiture of investments..

      1. He’s whining that people don’t like Trump using control of the federal government to drive customers to his businesses. He’d have a point if Washington or Jefferson tried directing their cabinet to only buy farm products from their farms.

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