Eroding Foundational Checks and Balances

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Greg Ip is worried that the checks and balances built into our Federal government by our Constitution are rapidly eroding due to President Donald Trump’s (R) unilateral actions. He’s badly mistaken. The erosion began long ago, and it accelerated starting in 2008. Trump has been resisting the erosion, for all the discomfort he’s causing a Leftist press too used to and too comfortable with that washing away.

FDR then tried to pack the Supreme Court; his own party revolted.

Ip ignored the rest of that story and its impact. Roosevelt didn’t get the additional Justices he wanted, but by 1943, he’d succeeded in getting appointed to the Court 8 Justices of his choice ou of the 9 comprising the Court. Our nation has been paying the price of that ever since, from Wickard which increased Federal economic power at the direct expense of the States, through Kelo, which increased Federal power at the direct expense of individual citizens and our property rights, and Chevron deference, which increased the power of Executive Branch agencies at the direct expense of both Congress and the President.

Shortly after taking office, he [Trump] fired the Democratic members of several independent agencies, including the FTC, effectively transforming them into executive departments.

On the contrary, this was Trump executing his constitutional authority as the head of the Executive Branch, and exercising his control over all of the Agencies and Departments of the Executive Branch. The Supreme Court, only recently restored to a body that adheres to what our Constitution actually says rather than what a Liberal, Roosevelt-esque-dominated Court want it to say, acknowledged that constitutional authority. The erosion here is from Congress, with its creation of an “independent” Federal Trade Commission in 1914 and subsequent further “independent” Agency creations. These creations were Congress’ unconstitutional attempt to create a fourth Branch of government by masquerading these creations as part of the Executive Branch.

The Supreme Court also took a step toward restoring Constitutional order in our Federal government by—finally—eliminating the knee-jerk deference to those so-called independent Agencies, and others properly constituted as subordinate to the President, when it rescinded that misbegotten Chevron deference and emphasized the importance of and constitutional requirement that Congress do its own legislative work, work it cannot pass off to those Agencies.

Regarding Trump’s unilaterality in particular, in one sense, he’s only following the examples set by ex-President Barack Obama (D), who infamously bragged about—and used—his pen and telephone to ignore or override Congress, and ex-President Joe Biden (D) who ignored so many of our nation’s laws in his attempt to virtually erase our southern border.

That unilaterality also is being reined in by a constitution-supporting and -applying Court. Trump can fire those Agency personnel. His unilateral application of taxing, via tariffs, has been severely curtailed. His efforts to cancel already-committed Federal grants have been successfully blocked.

Other of his unilateral actions, though, actually are moves back toward Constitutional order. His moves to greatly reduce Department of Education employment and to closely circumscribe DoEd authorities are aimed at getting rid of the Department altogether. This would be entirely appropriate, since the Department is a relatively recent Congressional creation done at the direct expense of the States, taking as it does, control over the education of our nation’s children away from the States, and in many ways away from the parents, and centralizing that control within the Federal government.

The erosion of our government’s checks and balances has been vast, but it’s not only due to a President overstepping his authorities or deliberately ignoring his duties. It’s also been due to Congress shirking its legislative duties and to a Court ignoring its own duties. At present, though, it appears as though the erosion is being slowed, and an increasing move back toward order is in progress.

Who’s Responsible for Corporate Security?

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The headline raised the question:

Wars Are Blurring Lines Between Corporate and National Security

The article dealt primarily with physical security of critical items and areas, and it touched on cyber security. There are other areas, though, where responsibility among corporate management teams, police forces, and government, whether military or civilian agencies need to be sorted out.

There’s the question of supply chain security, an enemy nation embargoing Critical Items in the supply chain of a nation’s important corporation, whether that corporation is economically important or is an important defense establishment supplier. Even here, the responsibility is mixed. It’s on the military to defeat the embargo (and the political leadership to engage in the related diplomatic engagements while giving the military the tools with which to act). It’s on the corporate management, though, to adjust its supply chain to eliminate the embargo and to do anticipate other high-risk dependencies and make the adjustments necessary to preempt those dependencies. Where the dependency can be eliminated through domestic production, vis., of raw materials, it’s on the nation’s political leadership to remove regulatory and other roadblocks so that domestic production can be done.

There’s also the question of cyber security. Here, a breach of a corporation’s cyber security should be taken as evidence, though not of proof, of corporate management’s criminal negligence. This sort of thing is too obvious an area of weakness for corporate managers to miss or to decline to commit the resources either to block proactively, or to fight and repair successfully and promptly a breach. Here, also, it’s on those managers to make public the breach, what was affected, and who was affected, in fine to spread the word for the benefit of others.

Adding to the complexity, companies now need to protect the data networks that serve as gateways to critical infrastructure. Hackers increasingly target not just computer files to steal information but also systems managing vital functions like building access and factory control, remotely causing physical damage or enabling espionage.

To which I add: vital functions of communications and financial systems, inserting sleeper malware, to be triggered during a crisis or in association with a direct attack to shut down critical nodes in those systems’ infrastructure and erase the data in financial systems, as well inserting the sleeperware into water distribution, national electricity grids, fuel pipelines, with a view to shutting those down or causing their catastrophic failure.

Addressing the question of primary responsibility, Marc Glasser, ex-DHS Chief of Chemical Security US Department of Transportation and the Department of Homeland Security:

The private owner can invest in redundancy, monitoring, and repair capacity, but only governments and militaries can really deter, patrol, attribute, or respond to hostile state activity[.]

Not entirely. That’s all true as far as it goes, but it only goes to reactivity. It’s the responsibility of corporate managers, military leadership, and politicians to act proactively in their spheres to anticipate and move to protect avenues of attack and to block attack attempts.

The Pope’s Error

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Pope Leo XIV, sitting on the Mediterranean island of Lampedusa decried the fate of folks who made it that far and others who did not as they left their home countries, mostly in Africa, looking for a better life in Europe.

There are also those who choose not to be a neighbor and those who choose not to make a decision. Those who have lost their lives in this sea are victims both of decisions that were made and of decisions that were not made. Indifference to the common good and corruption in their countries of origin; a global economic system that generates poverty and exclusion; fear that fuels prejudice and contempt; the belief that such problems do not concern us; the criminal calculations of those who profit from the suffering of others; the slow and difficult transition from mere emergency management to the development of comprehensive and shared policies[.]

No. The problem here is not that the European nations are not accepting all of these folks, nor is it that they are beginning actively to block their entry. The correct answer is for Europe to leave off its [i]ndifference to the common good and corruption in their countries of origin and devote the resources those nations are misallocating ins to supporting those folks making it to Europe and to blocking further flows, instead to working the source: the criminal natures of the home countries so those folks don’t feel the need to try to leave.

The Pope sort of recognized this, but with badly misplaced emphasis.

Thanks to its geographical location and institutional framework, Europe is capable of addressing the crisis, in this region, in a comprehensive manner, integrating immediate relief efforts into a long-term strategic plan capable of receiving, protecting, supporting and integrating migrants, while at the same time assisting developing countries so that no one is forced to emigrate.

The Pope further muddles his argument with his insistent conflation of migrants with illegal aliens, which is what most of those making to Europe are and most of those getting to Lampedusa, and other waypoints, want to become.

That geographic location does place Europe conveniently close to the source, but it should be committing those resources exclusively to assisting developing countries so that no one is forced to emigrate. Half measures don’t accomplish anything other than waste and lost opportunity.

Then there could be fruitful trade between those nations and the nations of Europe, and that would potentiate the benefits for those then-erstwhile home nations and their populations as well as work to the economic—and moral—benefit of Europe.

Independence Day

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I posted this in 2012; it bears repeating.

On this day 235 and more years ago, a group of Americans got together and, pledging their Lives, their Fortunes, and their sacred Honor to each other while relying on the protection of divine Providence, took our country free from tyranny and set us on a new, wholly experimental course.

These men openly acknowledged both our right and our duty to throw off any government that too badly violates its moral obligations to us sovereign citizens, that for too long abuses our liberties and our individual responsibilities.  At the same time, though, they acknowledged that routinely rebelling at every small offense was equally wrong: Governments long established should not be changed for light and transient causes.  Yet those light and transient offenses want correction along with those abuses and moral failures.

And so, while fighting (and many dying) for our newly born nation and during the immediately ensuing years of a troubled peace, these men, with others from the newly independent and united States joining them, in a second phase of our experiment invented a wholly new form of government.  They created a government that would recognize the essential sovereignty of the members of a voluntarily formed social compact over our compact’s government, and they gave that government a structure and a strictly limited set of authorities designed to maximize our control of government and our ability to maintain that control.

They also invented a wholly new mechanism for throwing off an abusive government and replacing it with one more suited to our needs and to our control: a set of elections that would let us turn all the rascals out of one house of our legislative body every two years, that would let us depose the whole of the other house of our legislative body in sequential one-third increments every two years, and that would let us fire the chief executive of this government every four years—any and all whom we found wanting during their time in office.  This invention was accompanied by another invention of these men: a judiciary that sat, neither above nor below our executive and legislative, but equal to and separate from them—a third powerful check that granted stability to the whole.

We are here today [now 250 years later] arguing amongst ourselves, usually with great passion, over a host of things, both momentous and trivial.  And we could not be without the genius and the sacrifice of those men those 235 and more years ago.

As you sit around by your barbecue, or at the beach, or wherever you may be, hamburgers and hotdogs and other meats in hand, beer nearby, children screaming and yelling in their own happinesses, take a moment to think about that.

Amending our Constitution

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The Wall Street Journal asked a collection of elitists how our Constitution could be improved; those wonders proposed five Amendments. I’ll address a few here.

Term Limits: One elitist proposed hard term limits of fixed numbers of years for everyone—Congressmen and judges and Justices. After all, it’s good enough for Presidents. Term limits would be useful for the political parts of our Federal government, but not for the judiciary. Even the 18 year terms he proposed would leave the judges and Justices too vulnerable to the politics of the day, through more rapid appointments and forced retirements, and not sufficiently tied to what our Constitution actually says. The statutes that also come before the courts, and that those courts must apply according to what they actually say, provide enough political involvement as it is; there’s no need to accelerate that, no matter that this Elitist wants to reduce that.

On the other hand, We the People would benefit from term limits for our Congressmen, but hard numbers like six and two terms for Representatives and Senators would excessively limit our choices of whom we would select represent us. Apply, instead, the term limits our prior Articles of Confederation applied to their unicameral Congress with its one-year sessions. Article V of that document limited delegates to Congress to three terms in any six years. That’s straightforwardly modifiable to provide for our bicameral Congress, and it would not limit our choices for representation, only the frequency of those choices.

Leave the judiciary with its current lifetime appointment on their good behavior.

Electoral College: Get rid of it? The “logic” here is that Presidential campaigns are driven too much by the States with the largest Electoral College contingents, and the smaller States get overlooked altogether. Leave Presidential election outcomes to the popular vote, instead. And: modern communications technology cures all. Eliminating the College, though, wouldn’t protect the smaller States. College contingents are based solely on the combined numbers of Senators and Representatives each State has, and the numbers of Representatives is determined solely by population. The same States that supposedly dominate the Electoral College election would simply turn their focus to the larger cities of States, leaving out the smaller urban areas even in those large College-centric States. Nothing material would change.

Leave the Electoral College alone. The current system is not broken.

Rethink the First Amendment: The Evil Rich have too much influence in political speech, and they need to be limited. What about modern communications technology cures all, though? Doesn’t that give the little guy as much influence as the rich guy? Of course it does. The beef here centers on the amount of money any individual or business can contribute to any politician, but here this Elitist fails utterly: he doesn’t suggest any concrete solution, much less an Amendment. Nor can he: on what basis would he limit a rich man’s speech to bring him down to a poor man’s level of influence (no one has ever suggested plussing up a poor man’s speech). Hard dollar limits would restrict the rich man far more than the poor man. Percentage limits (percent of what wealth measure, exactly?) would still leave the rich man with far more supposed influence. And what to do about contributions to causes rather than particular candidates? In the end, what’s the limiting principle here, that prevents further limits on speech no matter how Very Good the reasons might seem for limiting further? This elitist offered none.

We can brook no such restrictions on our free speech rights and remain America. This elitist tacitly recognized this (even if he didn’t recognize it himself) with his concluding thought:

We must return to a reading of the Constitution that recognizes its fundamental democratic commitments.

But that’s a matter for the courts and for Congress to do. No Amendment is necessary, nor could one work. No Amendment will ever alter any reading of our Constitution. Men and women will still read into it (and out of it) what they will, guided by how they’re educated to read it.

Equal Gender Rights: This elitist based the entirety of her argument on the need to ratify—finally!—the Equal Rights Amendment. She wants to enumerate a specific right to political equality for gender in our Constitution, claiming that the 19th Amendment, which granted sufferage to women, doesn’t go far enough. She even cited early feminists’ support for ratifying the 14th Amendment as a pathway for gender equality, but she missed what that Amendment says in its first Article:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All citizens means all citizens; it does not exclude some citizens, women or blacks or citizens of whatever sort. It’s hard to go farther than the blanket statement of equal rights and equal treatment under law that that Amendment requires.

The strength of our Constitution lies, in part, in its blanket statements of rights and limitations. Once we start carving out exceptions or codicils to those encompassing statements of rights and government limits, the process will rapidly escalate and those exceptions and codicils will expand our Constitution to hundreds of pages and hundreds of thousands of words that will include increasingly internally contradictory requirements. In relatively short order, our Constitution would come to resemble the very aspect that Munroe Smith wrote, some 140 years ago, about judicial precedent:

When the old rule is sufficiently worm-holed…a very slight reexamination will reduce it to dust, and a re-interpretation…will produce the rule that is desired.

When the old constitution is sufficiently worm-holed….

Be better if Wonders like these would leave off their Elitist blinders and look at our nation and our Constitution with objective eyes. Be even better if we ordinary Americans simply ignored technocrats and Know Betters altogether, and consigned them to their Ivory towers.