Sedecim et Septemdecim Delenda Est!

Here is an article singing my song!  I've made this argument several times over the years, mostly for the 17th Amendment, but I whole-heartedly agree with repealing the 16th as well.  The Federal government is supposed to be a small, LIMITED government.  The states are STATES, not provinces.  It is a FEDERAL government, not a CENTRAL government.  Though I have long viewed the centralizing of power in Washington DC as a predictable result of changing the way senators are chosen, I did not tie the growth of the bureaucratic state to that amendment.  However, Kozlovich and Lehr make a good case for it.  With states unable to stem government overreach without their Senate veto, the growth of legislation and outsourcing the details to alphabet agencies does make sense.  Even so, the Constitution clearly states that 'All legislative Powers herein granted shall be vested in a Congress.'  That is clearly not the EPA, the FDA, the EEOC, or any of the other myriad agencies.  A rule that imposes penalties must be passed by members of Congress, not outsourced to unelected bureaucrats.  The Supreme Court got rolled by FDR's threat to pack the court and the floodgates were opened for more and more rules and regulations to flood from the unelected and largely unaccountable administrative state.

The 16th and 17th Amendments must be repealed!  In the aftermath, the central government will dwindle in size and power, and the states will regain some independence from an overbearing Washington DC.  As noted in a previous posting, Obamacare was opposed by 26 states and therefore could not have passed if the states still had control of the Senate as intended.  Much as I like the idea, it is a hard sell.  No path for accomplishing these feats is outlined.

Ending the Filibuster?

Senator Schumer has announced his intention to filibuster Judge Neil Gorsuch's nomination to the Supreme Court.  This will trigger the Reid option where the Republicans will change the rules in much the way the Harry Reid did when the Democrats controlled the Senate and approve Gorsuch on a 52 to 48 vote.  Interestingly, Gorsuch was unanimously approved by the Senate for his current post on the Tenth Circuit.  Repeatedly, Gorsuch has said that his job is to apply the laws that Congress passed and Senator Schumer finds that to be a conservative ideology.

If McConnell has a spine (questionable), the Reid option will forever nix the filibuster on nominees.  As noted in a previous blog, I hold that nominees whose term will exceed that of the president who nominates them should meet a higher bar but those who leave with him should be approved by a simple majority.  Sadly, the parties don't trust each other enough to make that deal.

 

As the Senate has just become another House of Representatives who just have longer terms, the filibuster is obsolete.  Senators represent their party rather than their state government.  Where senators once viewed the state assembly and governor as their superiors, now they look down upon them as inferiors.  Rightly so under the current election scheme.  In fact, since senators are popularly elected, Democratic senators represent 177 million people while Republican senators only represent 143 million people.  The Independents (Bernie Sanders and Angus King) represent a million people but caucus with the Democrats.  In the 5 most populous states, Democrats outnumber Republicans by 7 to 3.  In the 5 least populous states, that reverses with Republicans having the 7 to 3 majority.

 

It has been a century since the 17th Amendment broke the Senate.  The traditions that had been established beforehand had kept the Senate from going off the rails immediately but those traditions have been chipped away.  The state governments can't keep them in check and the voters have little interest in doing so.  Repeal the 17th Amendment and money will flow back to the states and the federal government will soon busy itself with its enumerated powers.

 

In the meantime, it's time to continue the demolition of the filibuster that Senator Harry Reid started.  After ending it for nominations, it will start getting chipped away for legislation.  It's just a matter of time.

Elites of the Senate

The United States Senate, which was initially formed to represent the interests of the States, was undermined by the 17th Amendment.  Rather than being selected by the state assembly and/or the governor, the senators would be popularly elected.  This effectively ended the ability of state governments to directly influence the federal government.  Whereas the state legislature could have recalled a senator who voted in favor of a law that would impose costs on the state government (e.g. Medicaid, Americans with Disabilities Act, No Child Left Behind, etc.), the 17th Amendment removed that check from the state.  Unfunded mandates have proliferated, allowing the federal government to determine how the states must spend their tax revenues.

 

The reasoning behind the amendment was that too many millionaires were 'buying' senate seats.  There was also an issue with legislatures selecting senators in a timely fashion since it wasn't an election with a given day for all legislators to vote.  Popular vote certainly resolved the second of those issues but senators are still among the wealthy elite.

 

Members of the 115th Senate are, on average, 61.9 years old and have been in the Senate for 10 years.  26 Senators graduated from Ivy League colleges (20 of them attended Harvard, Yale, or both) and 55 Senators have a Juris Doctor degree.  By contrast, only 4 senators earned an MD and 6 have an MBA.  Two have achieved PhDs.  Impressive credentials when one considers the mediocre to bad quality of their work.

 

Splitting by party is illuminating.  There are 46 Democrats, 17 of whom are Ivy League graduates (37%) and 32 of whom have a JD (70%).  By contrast, of the 52 Republicans, only 8 are Ivy League grads (15%) and 22 have a JD (42%).  All 4 MDs are Republicans.  The MBAs are split 4 Republicans to 2 Democrats.  Each party has a PhD senator.  50% of the Democrats have worked as lawyers while only 35% of the Republicans have.

 

Considering the low regard in which lawyers are held, it is no surprise that an institution that is dominated by lawyers and Ivy League elites would find itself with similar approval ratings.

Amending the Constitution

Greg Abbott, Governor of Texas, has proposed a bunch of new amendments to the Constitution.  I found a list of them here.  There are some good ideas.  However, most of his proposed amendments seek to return power to the states.  The states lost their say at the national level when the 17th Amendment was ratified, making Senator an elective office by the people of the state rather than an appointed position by the state assembly and/or governor.  As I have pointed out in a previous post, 26 states opposed Obamacare.  If those states could have simply ordered their senators to vote against - which is what would have happened before the 17th Amendment - the law would not have been passed.  Senators went from protecting the authority of the states they represented to accumulating power in the governmental body where they served.  This is one of the reasons money and power have migrated from the states and to Washington DC.

 

It would be far more efficient to just repeal the 17th Amendment.  Sadly, this is an abstruse argument that can easily be flipped as taking voting rights away from the people.  "What do you mean I no longer get to elect my senators?!"  For that reason, this simple solution would be a much harder sell.  It was comparatively easy to repeal Prohibition (18th Amendment) because everyone needed a drink.  With that sadly being the case, let's look at the proposals.

Prohibit Congress from regulating activity that occurs wholly within one State.
 

But for an expansive definition of the commerce clause, this would already be the case.  The Supreme Court ruled that a farmer who had grown a crop entirely for his personal use was taking part in interstate commerce and thus subject to federal law.  Ergo, everything becomes a facet of interstate commerce and under the purview of Congress. 

Require Congress to balance its budget.

That would be nice but I suspect that Congress would use this as an excuse to raise taxes rather than cut spending.  "Hey, you people ratified the amendment that requires us to balance the budget.  It's your fault that we must raise your taxes."  I like what Colorado did.  They limited the growth of state spending to inflation and population growth.  Do that at the federal level and we would be running surpluses in no time.

Prohibit administrative agencies — and the unelected bureaucrats that staff them — from creating federal law.

That this should even have to be proposed tells just how far we have drifted.  The Constitution grants legislative power solely to Congress.  Every single law, regulation, expenditure, et al. must be passed on the floor of the House and Senate.  They can no more transfer this power to non-elective agencies than the president can give his veto to Mickey Mouse.  Yet they have.  So be it, we will have to try an amendment.

Prohibit administrative agencies — and the unelected bureaucrats that staff them — from preempting state law.
 

This looks like it should just be a clause under that last one.  If Congress can't export its legislative features to unelected bureaucrats, it should be able to imbue them with judicial powers either.  Let's not blur the lines between judges and bureaucrats.

Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

I'm ambivalent on this one.  I'm not keen on the Supreme Court lacking a check or balance.  In theory, a misbehaving judge can be impeached by Congress but that is virtually impossible.  Congress likes transferring risky decisions to non-elective parts of government - thus those last two proposals - and the court is the ultimate non-elective part.  Each party seeks to control the court and have its agenda imposed on the country by means of unredressable rulings.  This provides a more realistic means of checking the Supreme Court.  However, I suspect there are some unforeseen problems hidden in this.

Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

 

I don't see how this would fly.  First, it would have to apply to all federal courts or this would mostly transfer final decisions to the various Federal Appeals Courts.  How far down would this super-majority requirement go?  Besides, if the two-thirds override discussed in the last proposal came to pass, there is redress rather than hobbling the court system.

 

Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
 

How do we do that?  The Constitution already limits the federal government to certain delegated powers.  Check out the 10th Amendment.  It is already unconstitutional and yet it is done.  Do we make it double-dog dare unconstitutional?  Wouldn't it be best to just enforce the laws (amendments) already on the books than enact new ones that duplicate the old ones?

 

Give state officials the power to sue in federal court when federal officials overstep their bounds.

 

This one is full of mischief.  In a litigious society such as ours, this is an invitation to civil war fought in federal courts.  The very federal courts that have been hamstrung by some of the above proposals.

Allow a two-thirds majority of the States to override a federal law or regulation.

 

The likelihood of this actually being exercised is so low that it is probably a good idea.  The populace would have to be hugely indignant for the states to achieve this.  It is short of an amendment (3/4ths required) and echoes the presidential veto.  If this were to be successfully used, it would be an indication that the federal government had become tyrannical and this might be a means of preventing civil war or secession.

 

That a governor of one of the largest states thinks this is necessary is a bad sign for the republic.  Too much of this tries to force the federal government back within the constraints that are already in place in the Constitution.  Those constraints have failed.  Reiterating them is unlikely to succeed.

The Nuclear Option

Back when the Republicans threatened the Nuclear Option of changing Senate rules so that a simple majority could confirm nominees, Senators Barack Obama, Joe Biden, and Harry Reid were all in strenuous opposition.  Of course, they were the minority then.  The nuclear option was not exercised and the filibuster remained.  Today, the filibuster has been tossed aside.  Sure, they said it only applies to judicial (except for the Supreme Court) and executive nominations but the precedent is now set.  If the majority wants to change the rules to get its way, the majority shall change the rules.  In other words, there are no rules.

The Senate is meant to put the brakes on the more volatile House.  It is supposed to preserve the rights of the minority, which is a large part of why the supermajority filibuster exists.  The Senate has made a huge leap to being just another House of Representatives.  As I've said before, we need to repeal the 17th Amendment so that Senators are chosen by the state legislatures rather than the citizens.  Then they would protect the independence of the state rather than weakening it.  However, that is a tough sell.

As for the effects, I am ambivalent.  I think a president should get the nominees of his choice in most cases, especially those that expire with his term.  Nominations that outlive his presidency (such as judges) deserve greater scrutiny.  However, since this simple majority will apply to Republican nominees in the future, it comes out even.  Likely to get more extreme nominees this way.  Democrats will rue the day when they are no longer the majority.

Senator for Life

Richard Lugar, Senator from Indiana, lost in the primary tonight.  Though I know little of his opponent, I am pleased by this.  I distrust career politicians; it is my big beef with my governor.  Lugar was first elected to the Senate when I was 9 years old.  If his successor were to last as long, I'd be in my 80s.  As it happens, Lugar is 80 and wanted to serve until he was 86.  Must everyone try to be a Strom Thurmond (47 years), Ted Kennedy (46 years), Robert Byrd (51 years), or Daniel Inouye (49 years and counting)?

Too many of these politicians, be they Republican or Democrat, treat their offices as a title of nobility.  Though they may say they are our representatives, they soon come to view themselves as our rulers.  Few people choose to become servants if there are other options.  However, public servant attracts a lot of "selfless" people.  It is amazing how wealthy these folks get by lowering themselves to be our servants.  This is just another word game.  Few of them serve us, and those who do are generally freshmen who have yet to be corrupted.  It is funny how President for Life is correctly viewed as undemocratic and bad but Senator for Life or Representative for Life is considered normal and even good (seniority, don't you know).

My first option to fix this problem in the Senate would be to repeal the 17th Amendment.  My second option, which could fix things in the house as well, would be to propose a 12 year limit in elective office in the Federal Government.  Doesn't matter the combination of posts but a limit of 12.  Of course, that would require an amendment to the Constitution.  Or, perhaps we could find a judge who would simply rule such; that's how we amend the Living Document these days.

Obamacare and the 17th Amendment

When the Constitution was written, the Founders decided to have a bicameral legislature. The House of Representatives was to be the People’s House, the number of members determined by population. The Senate was to give equal representation to each state, thus every state received 2 senators.

Senators were selected by the state legislatures, making them wholly answerable to those same legislatures for re-election. State legislators took a dim view of Senators transferring power from the state (them) to the federal government (someone else in a distant capitol). The 17th Amendment to the Constitution upended that balance. The Senate became a second People’s House with fewer members and a lower turnover rate. The state governments now had no representation in the federal government.

That brings us to Obamacare. Currently, 26 states are suing the federal government over a variety of issues with the health care overhaul and have requested the Supreme Court to overturn it. Those 26 states have 52 senators, not only more than the 40 needed to stop legislation but a majority of the senate. And yet Obamacare passed with 60 votes. Prior to 17th Amendment, the health care overhaul could not have passed with so much opposition from the state governments.

Since the passage of the 17th Amendment, there has been a steady transfer of power from the states to the federal government. Oddly enough, senators owe no allegiance to the governor or legislators of their state. It is a hard sell to say ‘I prevented the federal government from taking power from our great state and will continue to gum up the federal works if re-elected.’ It is much easier to say ‘I brought billions of federal dollars to our state and I’ll bring back even more if re-elected.’

Few things would do more to restore federalism and representative republicanism than to repeal the 17th Amendment. The federal government would have a much tougher time inflicting unfunded mandates on the states; there are more than 150 such mandates.