Picture 2

Picture 2

Sep 13, 2015

Obama's Legacy May Be A Constitutional Convention

The US is gradually losing the rule of law, from the top to the bottom. In the courts, the Constitution expected judges to rule on what the law is, whether they liked it or not. We have come to the point where judges in important cases rule according to what they would like the law to be. This is the Humpty Dumpty school of law, where the Constitution means whatever 5 Supreme Court Justices say it means, and neither more nor less. The gay marriage ruling is a classic example of this attitude. I think the justices should have ruled that a marriage legally performed in one state had to be recognized in all states. It would have been a ruling consistent with previous rulings. Like the ruling overturning DOMA, it would have been a ruling that left the power to the states. Ruling that way would have settled the matter without leaving any loose ends for future advocates to use to expand future "rights." Instead the court stretched the 14th Amendment to cover gay marriage. This stretch was ridiculous. In 1868 when the 14th Amendment was ratified, homosexual acts were illegal in every state. But the effect of stretching this far is pervasive fear about how far any wacky group of 5 Supreme Court might go in some future case.

If you are comfortable with the Supreme Court acting in arbitrary fashion, think about how you would feel about a 5 to 4 vote that went the wrong way from your point of view. Given the way Roe v Wade was decided, nothing prevents a future Supreme Court from reversing the ruling totally. There's no Constitutional Amendment and no legislative process in place to backstop the ruling. Another group of justices can rule 5 to 4 that life begins at conception and all abortions are henceforth illegal, and all state laws to the contrary are overturned. I would not want this outcome. But the way Roe v Wade was decided, there is nothing to stop it from happening. I think this hypothetical is definitely possible. So do the supporters of the Roe v Wade outcome, who panic every time there's another vacancy on the Supreme Court for exactly that reason.

In the regulatory agencies, we have gradually moved to a concentration of power that was not supposed to happen under the Constitution. Regulatory agencies combine executive, legislative and judicial function all in a one stop shop. They make the rules, a legislative function. They decide where to send investigators, an executive function. And finally they hear the cases with their own administrative judges, a judicial function. They get away with all of this because the courts defer to regulatory agencies' expertise. If you sue a regulatory agency, the deck is heavily stacked against you.  Under Obama, they no longer bother to follow the law authorizing their existence and purpose.  They do whatever the president wants.

At the presidential level, the Smartest President Ever is ruling by decree using his pen and phone. He unilaterally decided not to collect taxes on employers mandated by Obamacare, which in most contexts is "settled law." He has granted visas to illegal aliens, contrary to law. If I listed all of the ways Barry the Brilliant has flouted the law, it would take me until tomorrow at 6 AM to get through all of them.

If we do elect a Republican president in 2016, it will be interesting to see the left's reaction to a Republican Executive Branch using a pen and phone approach to canceling Obama's pen and phone decrees.  I imagine pen and phone activity on the right will become a gross abuse of Constitutional process.  The rules change depending on who's in office.  Under the rule of law, everybody has to obey the same law, no matter who they are or what political alignment they have.  It’s just another indication that the rule of law is disappearing.

The Supreme Court needs a check on it. I think that if the legislatures of a majority of states vote to "ratify" a minority opinion that disagreed with the majority opinion in a Supreme Court case within 2 years of the decision, then the minority opinion should come into force as if it were the majority opinion. This has several benefits. For one thing, the Justices would be encouraged to moderate reasoning to justify decisions and prevent dissents which would attract support in the states. For another, unlike term limits or other removal from office mechanisms, this goes to the heart of the problem. It changes the offending decision itself. There are plenty of judges who would be glad to be removed from office if their decision would stay in force.

The regulatory agencies need to be reined in. The best way to do that would be to force Congress to vote to ratify all regulations before they go into effect. Since the agencies are executive branch, the President's position would be that he was proposing the regulations for Congress to ratify. Congress could refuse to ratify any part of the proposed regulations as well as rejecting the whole package. Just to put some extra teeth into it, all regulations and laws should have an expiration date of 50 years or less. This is another Constitutional Amendment with no chance in Congress or on almost any conceivable President's desk.

All regulatory administrative proceedings need to be subject to strict judicial review.  Deference to regulatory findings should be ended by statute.  Special knowledge lower courts should be established by Congress as the initial courts of appeal for each regulatory agency.  The judges in these courts would not necessarily have to be lawyers, but they would have to be knowledgeable on the area of regulation they were hearing appeals for.  Rulings in regulatory agency enforcement hearings should not take effect if appealed by the regulated party until a court ruling sustains them.  All of these changes could be enacted by Congress without any Constitutional change.

Given recent Democrats’ willingness to vote whichever way President Obama or Harry Reid tells them to, I don’t expect any amendment that changed the Washington power structure would have a chance of getting passed in Congress.  I think we are going to have to go with a Constitutional Convention called by the states.

Many, even most of you, are concerned about the risks of a Constitutional Convention.  You have to remember that the Constitution we have now means whatever 5 Supreme Justices say it means. Anything a Constitutional Convention drafts would have to be ratified by 38 states. While Congress has shown a number of times that it will vote for 1,000 pages of mumbo jumbo, I think the legislatures of 38 states are likely to have better sense.

The loss of the rule of law is, to reuse Biden's phrase, a BFD. I think we need a Constitutional Convention called by the states to fix it.  I think enough folks in Flyover country are tired of the generally lawless behavior at the federal level that we are reaching a tipping point. If no reasonable amendments can get through Congress, the states will call a Constitutional Convention under Article V. Harry Reid ain't the only politician with a nuclear option. If the Supreme Court tries to stop a Constitutional Convention, liberals will finally find out the real reason the Second Amendment is in the Bill of Rights.

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