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Politics & Policy

The Terrible DACA Ruling Is a Symptom of Our Constitutional Order’s Atrophy

Josh Blackman offers the best legal analysis of Judge William Alsup’s ridiculous ruling barring President Trump from rescinding DACA.

But, without stealing too much from Charlie’s bag of peeves (or prematurely borrowing from my forthcoming book), I think it’s worth emphasizing how this is just a symptom of a much larger and more pernicious problem afflicting our entire constitutional order.

The system the Founders set up depends to a huge degree on the assumption that our branches of government will be jealous guardians of their institutional prerogatives and powers. Indeed, the Founders expected that each branch of government would, from time to time, try to steal more power than afforded them by the Constitution. They assumed that the greatest bulwark against such encroachments would be the refusal of the other branches to relinquish their rights and power. It never occurred to them that the branches would willingly relinquish their responsibilities to the other branches.

This thread from @ThomasHCrown is an excellent summary of what has happened, and it is worth reading and retweeting.

Lord knows I had my problems with Steve Bannon – but, as I wrote at the time, he was absolutely right about the administrative state. Congress, the courts, and the executive branch have each in their own way acquiesced to a separate, parallel government walled off from democratic accountability. Congress has bequeathed the power to make laws and even, in some cases, to raise taxes to independent agencies. The courts, meanwhile, have been happy to let the bureaucracy combine what should be separated powers in the hands of bureaucrats. As Clarence Thomas put it, the courts have “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”

But it’s not just the administrative state. No one wants to take political responsibility for policies they want. Just last week, Senator Cory Gardner was livid with Jeff Sessions for not maintaining the Obama policy of stealing power and authority from Congress. Chief Justice John Roberts upheld Obamacare because he didn’t want the Supreme Court to take the heat that would come with doing its job. When George W. Bush signed McCain-Feingold, he said he thought parts of it were unconstitutional but he was happy to pass the buck to the Supreme Court anyway. I could go on.

In one sense, Democrats are worse than Republicans because they have a philosophical commitment to advancing policies as the crow flies. The history of progressivism has always been defined by a willingness to advance the ball wherever the field is open. But the flipside to this is that at least the Democrats are philosophically consistent in their animosity toward the Constitution. Republicans claim to be passionate guardians of the Constitution — they just aren’t all that interested in doing the work required of such guardians.

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