I have reservations about Megan McArdle’s response to the recent UK elections as expressed in her Washington Post column:
Ever since the Brexit referendum in 2016, there have been two main arguments against going forward with Brexit. The first is that Brexit would have horrifying economic consequences, which is quite possibly true, but largely beside the point. The British people voted for it, and surely the British people have a right to lower economic growth, if they want it. I mean, 48 percent of them didn’t, of course, but the same complaint could be lodged against nearly any modern election; there’s almost always a sizable minority that bitterly opposes whatever the majority wants. If that’s grounds for ignoring the 2016 referendum, then it’s grounds for arguing that no government should ever do anything except periodically meet to declare National Puppies Are Cute Day.
Where I disagree is in that may be construed as supporting direct democracy by 50%+1 of the voters which, at least in the United States, would be a grave error. It would be fine in a small consensus-based society like Switzerland’s but in the United States?
What is missing from the formulation is the constraint of law. Our system as designed was planted thick with laws, including the Constitution defining a limited government of defined powers, the common law, and stare decisis. That’s what prevents 50%+1 from imposing draconian taxes on the other 50%-1 of the population or having that 50%-1 hauled off to re-education camps for daring to disagree with the 50%+1.
And that is what concerns me about the present state of affairs. Nowadays it appears that, if you can find a judge somewhere who agrees with you, you can enforce your will on the entire country. That is no rule of law.
I’ll still demur from giving my opinion about Brexit. It’s not my decision to make. But I will go so far as to say that if the Remainers really wanted to remain in the European Union the decision is something that should never have been put up for referendum.
The British system is very distinct from the American system — they have no written constitution, Parliament is supreme, and the legislature and executive are fused. Instead of constraint of formal laws, the U.K. relies on unwritten and unenforceable conventions and that all political actors self-restrain.
What made Brexit amenable to a referendum was it was a divisive — AND it was divisive inside each of the major parties. So politicians across the spectrum could deal with it by “leaving it to the people†– so the decision to put it to a referendum was not divisive.
Are there issues today that are divisive inside both Democrats and Republicans?
It was not divisive so long as they could ignore it which is essentially what happened. That time is apparently at an end.
There are lots of such issues in the U. S.—most of them, actually. Immigration, trade, for example. Cutting taxes is a valence issue within the Republican Party while increasing taxes is a valence issue within the Democratic Party. Education is a valence issue. Support of the military is a valence issue within the Republican Party and within a faction of the Democratic Party and the opposite for another faction of the Democratic Party.
“Nowadays it appears that, if you can find a judge somewhere who agrees with you, you can enforce your will on the entire country.”
Or if you can lie to a judge.
https://www.zerohedge.com/political/ig-report-fbi-spying-exposes-scandal-historic-magnitude-us-media
“Nowadays it appears that, if you can find a judge somewhere who agrees with you, you can enforce your will on the entire country.â€
Universal judicial fatwas were a rarity prior to Trump. I think there were maybe a dozen or so nationwide injunctions issued prior to his election going back forever. So far in the last three years there’s been more than 40. Personally I think that even if the SC eventually hears one and decides against it and permanently bars them in the future, lower court judges will ignore the ruling (because two if not three SC judges are illegitimate) and keep on issuing them, counting on the delay between issuance and overturn to impose their will on everybody else. Cloward-Piven applied to the court system.
Barr has already expressed concerns about the present day overreach of district courts, in issuing so many injunctions nationwide ever since Trump came into office. But, this distortion of judicial powers seems to only mirror the constitutional distortion and aberrations of our rabid House leadership.
BTW, Schiff was booed off the stage of an event being held in Los Angeles this evening, with people shouting “liar.†Apparently Schiff lacked an authoritarian gavel to suppress the crowd’s disgruntlement over his impeachment behavior.
” Nowadays it appears that, if you can find a judge somewhere who agrees with you, you can enforce your will on the entire country. That is no rule of law.”
You used to be concerned about POTUS ruling by decree. You have a POTUS who is unable and unwilling to even try to reach deals or pass laws, so he rules by fiat. To top it off, he does it with an unprecedented degree of incompetence (Muslim travel ban). Now we have his current attempt to spend money on his wall by stealing it from military families by declaring an emergency, after publicly admitting it was not an emergency. Really, how can that not be challenged in court? If Trump was disciplined, LOL, and knew when to shut up there wouldnt be a lot of these challenges.
Last of all, this is not new. The GOP took this to a new level whie Obama was POTUS with constant legal challenges when they couldnt pass laws to get what they wanted (ACA).
Steve
The groundwork for limiting migration from 7 Muslim countries – Iraq, Iran, Yemen, Sudan, Somalia, Libya’s, Syria – was laid by the Obama administration, with a far smaller outcry, than when Trump cited these same countries with a broader scope applied to his decree.
Wall funding has been under siege by the Democrats as part of their resistance to everything Trump. His improvisation to achieve border security included looking into other funding such as those approved for the military. “Stealing†is merely a provocative term to use, when I think “shuffling†funding might be less partisan, especially when these monies all come from the same source —-> taxpayers – a majority whom want border security.
The British referendum was necessitated by Britain’s Constitution, which makes Parliament supreme (no current Parliament can bind a future Parliament). EU membership created a Constitutional dilemma because it introduced a new role for judges to invalidate acts of Parliament based upon rulings from EU bodies. How is Parliament no longer supreme?
In the UK, Constitutional change comes about in two ways: One is that a Party hold an election with a clear manifesto for Constitutional change. The difficulty here is that party manifestos contain many pledges and its difficult to identify Constitutional change within the context of regular elections.
The other method is by referendum. When the UK joined the Common Market, the government sought and won a confirmatory referendum. Subsequent treaties did not go to a referendum because they were characterized as just “trade.” When the EU Constitution Treaty was proposed, Blair promised a referendum, but when the French referendum failed, he pulled it back. When the EU proposed another treaty and incrementalism, Brown refused to hold a referendum, absented himself from Parliament when it was ratified and basically set in motion the politics that led to Brexit.
In one sense the referendum was a political good to be offered to increase one’s chance of winning a majority and/or decrease the opposition because of its cross-cutting appeal. But the form is based upon Constitutional premises. (Other EU countries have engaged in their own Constitutional framework, but within written frameworks)
I hope you recognize how unhinged that is. The Democrats enacted the first major social program ever solely along partisan lines and very narrowly at that. The ACA had an unprecedented level of “fill in the blanks” provisions to be determined by the executive branch. That the ACA had problems was obvious.
I think the Republicans were foolish in repeatedly voting for its repeal. Once and done. But you’re engaging in a sort of jiu jitsu to support a weakly-crafted partisan piece of legislation. The problem was the ACA not opposition to the ACA. You are instantiating the point of this post. 50%+1 does not mean you get to do whatever you want. You are constrained by the law.
Under the U. S. Constitution the president has broad, largely unchecked control over foreign relations (which includes control of the border) and the military. Those are his enumerated powers. The enumerated constitutional powers of the president do not include micromanaging the health care system. Control of the health care system is the responsibility of the states.
If you don’t like that, amend the Constitution. Lots of luck with that.
jan :
It’s actually a lot more complicated than that. Neither Trump nor Obama actually mentioned those countries by name. They were “countries of interest”. This whole issue is covered pretty well (and fairly) by Snopes.com.
“I hope you recognize how unhinged that is.”
Nope. My point was that the GOP was unabble to repeal the ACA or amend it by passing a law, so they attacked it in the courts. If you dont like Congress passing things without the opposition party voting for it, then change the Constitution. (You do realize with the liberal use of the filibuster we have seen in the last 20 years historical comparisons are not very useful I hope.) Now we have Trump wanting to take money away from military families to pay for his wall, by using powers thart were designed to be used only during an emergency. AND, Trump has publicly admitted that it is not an emergency. Your response is that we should change the Constitution. How about just following the law?
” than when Trump cited”
Totally ignoring statements by Trump and his team that the goal was to keep out Muslims. So, the initial ban was so poorly written it got challenged. The follow ups got challenged on the basis of GOP public statements.
“Wall funding has been under siege by the Democrats as part of their resistance to everything Trump.”
No, he was actualluy offered wall funding but he couldnt appease his base over Dreamers. Besides, he is the greatest deal maker ever. The only reason Obama couldnt get an immigration agreement was becasue, according to you guys, he was a poor leader. If Trump is the greatest ever he should be able to get a deal.
“Stealing†is merely a provocative term to use, when I think “shufflingâ€
So if you were a military mother and your kids were going to a crumbling school you would think of it as shuffling when the money to fix that school, or the base hospital, goes to a wall? When the POTUS said it wasnt an emergency?
Steve
“Crumbling Schoolsâ€
You’re better than to use that.
I don’t object to that. I object to Congress passing such laws and then delegating its authority to the Executive Branch. The Constitution already prohibits that.
Also, when you do that you should expect ongoing opposition to the law. If you can’t accept that, get the other party’s support for the program. It’s part of the package.
If it were in Chicago, I’d say “close the school”. Here the number of public school students has dropped sharply over the last 30 years while the number of schools hasn’t. We presently have more schools than the remaining Chicagoans can afford to maintain, many of them half or more empty.
Decommissioning a city is a process we need to learn.