February 7, 2013

“The Federal-State Crack-up”

Via Darth Levin, Mario Loyola, The American Interest, on the role of the federal judiciary in creating the conditions for usurpation of state powers by the Leviathan I noted earlier today as the primary bridge from Constitutional government to our present post-constitutional predicament.

The article is detailed where I was cursory.  Please do take the time to read it.  Here’s a bit to get you started — essentially, Mr Loyola’s preamble:

For decades, Democrats and Republicans alike have invested heavily in governance schemes that erode the Constitution’s separation of powers and mar its proper functioning. The Federal judiciary has uniformly rubber-stamped these schemes. The consequence has been an unsustainable spree of borrowing, spending and overregulation at the Federal level, cyclical fiscal crises at the state level, and less accountable and less representative government at every level.

These governance schemes are generally of two kinds: one erodes the separation of powers between Federal and state governments, while the other erodes the separation of powers within the Federal government. In the first category is “cooperative federalism”, whereby the Federal government uses monopoly powers to coerce and subvert the prerogatives of state governments. In the other is Congress’s delegation of vast rule-making authority to administrative agencies.

These two categories of concern are often treated as being entirely distinct, but they share profound similarities. Both are methods for Congress to escape accountability by hiding its power in other institutions of government. Cooperative federalism allows Congress to hide its power within the decision-making of state governments, while its delegation of rule-making authority allows it to hide its power in the far-flung bureaucracy of the Executive Branch.

The Federal judiciary has a crucial role to play in maintaining and policing the boundaries of America’s basic institutions of state. It is a role it abdicated when confronted with the popular nationalist programs of the New Deal. The constitutional doctrines the judiciary has invoked to let Congress blur these critical separations of power are deeply flawed as a matter of constitutional law, and they have ultimately become unsustainable as a matter of political economy. Federal courts must begin to enforce a strict separation of powers, both between the Federal and state governments and within the Federal government itself. And Congress itself must start undoing the consequences of its own self-indulgence.



Posted by Jeff G. @ 12:49pm

Comments (6)

  1. Which Framer said that when liberty is destroyed it’ll have been the judiciary that did the deed?

    The only thing as jacked as that loss is that it was so blindingly predictable.

  2. Though I still haven’t completed reading Loyola’s piece, I thought it possibly worth noting the The New Republic is “new”, or was new in its celebrated day, in contrast to the Old Republic, because it brings forth a doctrine of no Republic at all, or to say this another way, the elimination of the Republic altogether. It’s a conceit, and a seriously nasty conceit at that. But bon appetit at your success, Progressives, for it is your own you will be eating.

  3. Now this makes good reading – ties in our particular political troubles with crony capitalism in general.
    Sorry, on the run and left http-fu at home.

  4. I was just reading this Reason piece on the founding of The New Republic, and one passage in particular caught my eye:

    So, far more explicitly, are Weekly Standard editors William Kristol and David Brooks when they declare in The Wall Street Journal, “Wishing to be left alone isn’t a governing doctrine…What is missing from today’s conservatism is the appeal to American greatness.” By their own admission, Kristol and Brooks have only the haziest of agendas: “It would be silly to try to lay out some sort of 10-point program for American greatness.” They simply know what they want to quash–the idea that American greatness is emergent, rather than planned, and that it does not emerge from Washington. “American purpose,” writes Brooks, “can find its voice only in Washington.”

    Nothing we didn’t already know about Brooksie and Kristol, and it wouldn’t be noteworthy except for the timing: Virginia Postrel wrote this piece in 1997!

    Yes, it’s true. Billy and Davey have been very, very wrong for a very, very long time.

  5. Postrel wrote in her inter-linked piece ” ‘National Greatness’ or Conservative Malaise” : *** Indeed, the free world won not only the Cold War but the battle of ideals: Socialism is no longer fashionable; today’s cutting-edge ideas involved the institutions of freedom: property rights, contracts, the rule of law, and freedom of conscience and expression. ***


    Now I never did read the joint Kristol Brooks essay underlying the question, so wish to take no part in that dispute here, but only to posit Postrel’s brief observation for the sake of the look back and the capture of my own views at the time, i.e. that Socialism did indeed seem (if only briefly) to have lost nearly all standing. What a difference a day makes, eh?