Comment by tfehring
3 days ago
I don’t see how constitutional changes would help. The constitution already creates separation of powers, limits on executive authority, and procedures for removing an unfit president or one who commits serious crimes. But these only matter to the extent that majorities of elected and appointed officials care, and today’s ruling notwithstanding, there’s no political will to enforce any of them. The plurality of American voters in 2024 asked for this, and unfortunately we are all now getting what they asked for and deserve.
I think you're misunderstanding at least a little bit here. The Constitution created separation of powers, but what it did not do is explicitly block a particular branch from either abdicating their duty or simply delegating their power back to the executive.
It's certainly an interesting situation that wasn't explicitly spelled out in the law. But as far as everything that's working, it's realistically all within the legal framework of the Constitution. There are procedures to remove an unfit President, sure; but there's no requirement baked into the Constitution that requires those parties to act upon those procedures.
In short, it's a whole lot of short-sightedness of the Constitution combined with willing participants across multiple branches of the government.
The problems unearthed and the damage being done will take decades to fix just our internal issues, and it's very likely we will never resolve our international problems.
I don't know what the future holds for the United States, but we are certainly going to be operating from a severe handicap for quite a while.
The basic fact that needs to be contended with is that the Constitution, however brilliantly it may be crafted or repaired, is a piece of paper. It has no agency to enforce or do anything else. It's always people who have to decide to do things, maybe under inspiration from this paper or another. So whether the Constitution say "Congress must impeach a President who is doing this or that" vs "may impeach", that would have 0 practical impact.
Consider that most totalitarian states have constitutions that explicitly forbid torture, discrimination, and many other forms of government suppression of people. This does little in the face of a police state bent on suppressing the people.
Worth mentioning, that goes the other way too... plenty of what should be executive power was delegated to congressional authority over the years as well. And it doesn't even begin to cover activist judicial practices.
The lines have definitely blurred a lot, especially since the early 1900's. And that's just between the branches, let alone the growth of govt in general.
>>And it doesn't even begin to cover activist judicial practices.
The Constitution created SCOTUS as a political body.
The sole role of a Supreme Court Justice is to cast votes.
The constitution places zero restrictions on how a Justice decides which way to vote. The Justice is not bound by anything in deciding how to vote.
That includes bribery or other corruption. If bribery is proven, the Justice is subject to criminal prosecution. But conviction does not remove the Justice from office. And removal by impeachment does not undo the cases decided by the corrupt votes of the Justice.
Every vote of every Justice in US history was an "activist judicial practice" in the sense that each vote was made for personal reasons of the Justice that we will never know (opinions only reflect what a Justice chose to say, which in no way means it reflects the personal reasons for the Justice's vote).
Your comment is a political statement about a political body - although you seem to incorrectly believe you are making some type of legal statement.
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"plenty of what should be executive power was delegated to congressional authority over the years as well"
Examples? The activist judges thing I can see, but I'm not so sure I'm concerned of a body with more singular authority (the president) delegating to a body with more democratic accountability and representation (congress), nor can I easily find any examples of it.
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Can you give an example of a case where the executive branch has delegated power to the legislative or judicial branches?
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> There are procedures to remove an unfit President, sure; but there's no requirement baked into the Constitution that requires those parties to act upon those procedures.
This would be enforced how?
>>This would be enforced how
Bingo. The flaw in the constitution. The Executive holds the only enforcement mechanism in government: the FBI, military and other police forces.
Having majored in political science as an undergrad and then being a trial attorney for 40+ years, I would argue that my use of the word 'flaw' is probably misplaced. 'Flaw' implies it could (should) have been created differently.
Alas, I am unaware of ever reading a workable way to 'fix' our constitutional 'flaw'.
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Well, you can’t force people to follow the constitution in the first place, if too few agree with it.
Seems rather unlikely to me that people who ignore the constitution for the sake of political advantage would start following the constitution if it were worded differently.
I'm not sure why Americans are so certain that their system of separation of powers is the right one. Most countries don't separate the executive and legislative like that. The executive is whoever can command the support of the legislative. If you think about the US system it makes no sense. An executive can just ignore the rules created by the legislative by just not enforcing it and the only means to stop that is a 2/3 majority in a body that by it's nature is not representative of the population but rather of States.
As far as I can tell the US system is designed for gridlock. Things like filibuster, lower house elections every two years, state elected upper body, electorate system are all designed to create girdlock.
While Americans as a whole are to blame for some of this they are working in a completely broken system. In tech we try not to blame a person when something goes wrong so we look at what process allowed this to happen. I think many of the US problems are explained by their underlying system which is basically a copy of the English one at the time of Independence with a monarch and a parliament. Unlike the English system though it barely evolved since then.
I think it's designed that way because it wasn't originally seen as one country, more as a federation.
Even by the time of the civil war, Robert E Lee decided he was Virginian ahead of his national identity.
If you have a bunch of sovereign states, then you need some state-level evening out. If everyone is a citizen of one large state, you can just go proportional.
On top of this, it was never going to be easy to gradually move from one to the other with the issue of slavery looming large, so they didn't fix it. This was still a huge issue in 1848 when a lot of Europe was grappling with how to do a constitution.
So it stayed broken and here we are.
Yes I understand it was designed that way 250 years ago. What I don't understand is why so many Americans think that it was perfect. Why aren't Americans open to the idea that their system of "separation of powers" is fundamentally flawed. I went to an American school and separation of powers is talked about is as if it's the only possible right answer.
The US quickly realized that the loose federation wasn't going to work and centralized a lot of power. It should continue to evolve it's system.
It's worth noting that even the US doesn't think it's system is a good idea. When it imposes a new government on countries (like Iraq) it chooses a parliamentary system.
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The difference is in cases where the parliament chooses the executive is it leads to it's own collusion and corruption in terms of excessively growing govt... not that it's barely held the US from doing so. The point is to be in an adversarial context in order to resist overreach of govt.
For better or worse, our system today isn't quite what it was originally designed as... The Senate was originally selected by the state govts, not direct election... the Vice President was originally the runner-up, not a paired ticket and generally hamstrung as a result. The VP didn't originally participate in the Senate either, that came after WWII.
The good part about the constitution is there is a reasonable set of ground rules for changing said constitution with a minimum that should clearly represent the will of the majority of the population. (corrupt politicians not-withstanding)
Almost every country ranked for having the least corruption is a parliamentary system. Actually proportional parliamentary seem to be even better in terms of little corruption.
The reasonable set of ground rules seem to favor states over the will of the majority of the population. It is possible to change the constitution with states representing only 25% of the population. And remember you'd only need a majority in each of those states so could be way less of the population.
Overall the system seems flawed in that instead of having clearly delegated areas of responsibility to states and then doing the federal system as based on the population of the whole country it muddled areas and then made a federal system that couldn't respond to the population.
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> As far as I can tell the US system is designed for gridlock.
At the federal level the US system was designed for gridlock on purpose, with the premise that something shouldn't be federal policy without widespread consensus, and without that consensus it should be left to the states.
The problem is really that many of the gridlock-inducing measures have been thwarted, e.g. delegation of rulemaking power from Congress to the executive and direct election of Senators to prevent state-representing Senators from voting down federal overreach. But those things weren't just there to induce gridlock, they were also the accountability measures, so without them you put corruption on rails and here we are.
Any system designed for gridlock will lead to increasing anger and pressure that will eventually break out in bad ways. If people see the results of their own actions then they are not going to end up so extreme.
I'm not sure why Americans think that the creation of agencies is the problem when other well governed countries do the same. The idea that a legislative body could possible create appropriate regulation in a modern complex world is crazy. That's what a parliamentary system solves. It keeps the executive accountable to the legislative at all times.
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The structure of British government during the Hanoverian times was little different from what the UK has today. The monarch was effectively a powerless figurehead and executive decisions were made mostly by faceless very wealthy individuals in back rooms with the public face carried by a small set of charismatic figures who usually sat in parliament.
The US system was designed as a grand experiment. It made a certain amount of sense at the time: the country as a vast plantation steered by a benevolent master with policy set by wealthy landowners and businessmen who knew what was best for everyone. It was a system already in place in the Americas for generations and most national arguments could be hashed out at the club over some fine imported brandy or, for people like Franklin, some imported tea.
As far as it goes, there have been worse set-ups.
It's quite different. The House of Lords was much more powerful well into the 19th century. The monarch was hardly a powerless figure in those times. The Bill of Rights 1689 probably shifted the power more towards Parliament than before but the monarch was still very powerful. The UK system continues to evolve with notable precedents being set very recently like requiring a consultation of Parliament before embarking on military action and the limitation of prorogation powers.
The setup isn't the problem. The refusal to evolve is the problem.
I'd argue that it wasn't really the system in place. The system in place was one of states governing themselves. Before independence the states didn't really deal much with each other.
The filibuster isn't part of the system; it's not even part of the law. It's just part of the rules that the Senate chose for their own internal procedures.
It's just another thing that means people don't face the consequences of their own actions. If the extremeness of the elected party is blocked by the filibuster then people are angry at things not changing and so go even more extreme.
A similar problem in the United States is the excessive amount of law making by the Judiciary. In most countries the Judicary doesn't' make law it just tells Parliament that they need to change the law. This again means the consequences of who you voted for are not faced.
The pressure builds till there's a breaking point.
> the US system is designed for gridlock
Yup. aka vetocracy
> The majority of American voters in 2024 asked for this
It was 49.8%, which is not quite a majority.
It's also worth noting that Kamala Harris received precisely 0 votes in the 2024 Democratic primaries.
[EDIT:] I see that the parent comment has now changed "majority" to "plurality."
If I could make one Constitutional amendment, it would be this: publicly finance all election campaigns, and make private contributions illegal bribery, punished by imprisonment of both the candidate and briber.
Fixed the “majority” claim.
I think a competent opposition party would be great for the US. But regardless of the candidate, US voters had three clear choices in the 2024 Presidential election: (1) I support what Trump is going to do, (2) I am fine with what Trump is going to do (abstain/third-party), (3) Kamala Harris. I think it’s extremely clear 3 was the best choice, but it was the least popular of the three.
Option 4: I am not fine with what Trump is going to do, but I am also not fine with what Harris is going to do. And, since Harris said that she wouldn't do anything different than Biden, that could amount to "I am not fine with what Biden has been doing the last four years".
Was that less bad than what Trump has done in one year? Yes. But Trump in his first term was less bad than this, and recency bias means that what we didn't like about Biden was more prominent in our minds.
But my option 4 looks just like your option 2 in terms of how people voted. I'm just saying that the motive may have been different.
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Oh man that hits the biggest nerve in me. Never again should we allow primaries to be skipped. I don't care if the incumbent is the most popular candidate in history - running a primary makes sure the best candidates will be picked and refusing to run an election and then having the gall to suddenly anoint a chosen candidate was an absolutely disastrous decision.
Democracy is a healthy process - I don't know why we buy the stupid line of "we need party unity" when what we need is an efficient expression of the voters will and having that expression is what best forms unity. There are some old Hillary quotes that make me absolutely rabid.
To be fair there were primaries, but the DNC only pushed Biden's candidacy. So there really wasn't any other candidates on all the ballots except uncommitted. When he dropped out in July their simply isn't enough time to run a functional primary and campaign for the vote in November. We can't really delay the election to have a primary. The delegates of the DNC do get to vote on who they want and by the time Kamala stepped in she did get the most votes.
It's really a problem of money though. The DNC really are the king makers when it comes to candidates. That and PAC money are the requirements to get a nomination. At least when it comes to presidency. Smaller elections you get more freedom to have a successful without such things. The whole system needs an overhaul unfortunately and I don't see any candidate from any party looking to fix that any time soon.
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My first thought when I read the Biden resignation letter was - Harris endorsement is brilliant fuck you to the Dem insiders that are ousting him. I am still lowkey convinced that he voted for Trump out of pure spite.
Biden's hail mary would have been to pick Haley as his running mate, who already had 19% of the Republicans.
Fix some of the ambiguities that allowed power to be concentrated in the executive branch. Automatically start elected officials so things like avoiding swearing in don't happen. Limit the power of these executive orders. Introduce recall votes. Switch to public funding for all elections.
Theres plenty we can do. That's off the top if my head. I'm sure if smart people sat down to think about it there are lots of practical and clever ideas.
The majority didn't ask for this. 49% of voters did.
Or hear me out - the congress should start doing their job. The main problem is the congress has been MIA for decades and outsources their power to the executive via regulatory bodies. And probably a good idea for SCOTUS to return some power to the states. There is too much power concentrated in washington, the congress refuses to yield it and the result is imperial presidency. Which is exalting when the president is from your faction and depressing when it is not.
I agree, I think recall votes, term limits, higher pay, fixing election funding would help with that.
We need changes that address the kind of people that are running for these spots and winning then go on to do a bad job. Congress isn't incentived to be effective.
The main problem is that Congress is not competitive. If you live somewhere outside of a few remaining swing areas, you can just skip voting entirely.
We need to do something to fix this: gerrymandering ban, increase the number of Reps, add more states for more Senate seats, etc.
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Congress is largely the wrong people though. What sane person would build a system where getting elected requires you to be rich? Where a primary system ensures everyone elected is not roughly in the center of opinions?
>>Switch to public funding for all elections.
>Or hear me out - the congress should start doing their job.
Well, we make them do their job by holding them accountable to the people rather than a billionaire donor class. Citizens United is at the root of all this.
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The problems are a product of the constitutional system. I think the main problem is the elected king presidential system nonsense. Parliamentary democracy is the way to go.
> I don’t see how constitutional changes would help.
At the very least, we need a clarification on presidential immunity.
Have a proper mature parliamentary democracy made of multiple parties, not just two, and a prime minister that is always one vote away from resigning.
Slower democracy, sure, but fits advanced economies that need consistent small refactors and never full rewrites every 4 years.
I'd like to see a change in voting system to make voting for smaller political parties more viable. My country did this in 1993[1] so I've seen to some extent that it works. A lot of other issues in the US seem downstream from that top-level issue.
But sometimes I think about the fact that you guys don't even have the metric system yet...
[1] https://en.wikipedia.org/wiki/1993_New_Zealand_electoral_ref...
The American constitution is riddled with problems that many later democracies managed to fix. In general, the founding fathers envisioned a system where amendments were far more common and they didn't realize they made the bar too high. And that doesn't even touch on the electoral college, first-past-the-post voting, vague descriptions of the role of the supreme court, and no method for no confidence votes. Of course, it would be next to impossible to fix these in America because it would require a significant rewrite of the constitution.
The only way this will change is if the rest of the world leaves America behind and the quality of life here becomes so bad that radical change becomes possible.
But you are right that Trump won the popular vote in 2024, so you can't blame that on the system. But a functioning democracy would have more constraints on him. Our legislative branch has been dead in the water for 20 years at this point.
The majority of American voters can be as dumb as they want - the two big failures here are the legislature and the judiciary. The judiciary let an obviously illegal thing sit for far too long while the legislature is too partisan to actually take actions against the administration (except in the case of the Epstein files which has been surprisingly admirable and a rare ray of light in the last year).
If the majority of American voters elect snoopy the dog snoopy can do all of the things snoopy wants to do within the bounds of the law. Snoopy can use his bully pulpit to fight against dog restrictions in restaurants and grant pardons to previous offenders. Snoopy can ensure efficient spending of money on public water fountains accessible to canines... but if snoopy starts issuing open hand-outs to the red baron (snoopy in a moustache) that's when the other branches of government are supposed to step in - we aren't supposed to need to wait four years for the next election to stop open corruption (especially since corruption is really good at funding more corruption so there's a vicious cycle that can begin if you let it fester @see the recent FBI raid on GA election offices).
Are you arguing voters in a democracy are not even a little responsible for the outcomes of their vote?
Oh, they're absolutely responsible and will suffer a fair amount of consequences for their votes. But the legislature should have stopped the bleeding a long time ago.
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> If snoopy starts issuing open hand-outs to the red baron (snoopy in a moustache)
You mean like how President Trump just gave 10 billion USD of taxpayer money to a board operated by Private Citizen Trump?
https://www.nbcnews.com/world/gaza/trump-board-of-peace-firs...
I mean like that and dozens of other excellent examples that should have caused the legislature to remove him from office. Trump coin alone (including all the shady World Liberty Financial funding) should have been worth the boot and that happened on like day two of the administration.
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Necessary changes, off the top of my head:
1. Ranked Pairs voting for national elections, including eliminating the electoral college. Break this two-party duopoly of bad-cop worse-cop.
2. Enshrining the concept of independent executive agencies, with scope created by Congress, with agency heads chosen by the same national elections. (repudiation of "Unitary Executive Theory", and a general partitioning of the executive power which is now being autocratically abused)
3. Repudiation of Citizens United and this whole nonsense that natural rights apply to government-created artificial legal entities (also goes to having a US equivalent of the GDPR to reign in the digital surveillance industry's parallel government)
4. State national guards are under sole exclusive authority of state governors while operating on American soil (repudiation of the so-called "Insurrection Act"). This could be done by Congress but at this point it needs to be in large print to avoid being sidestepped by illegal orders.
5. Drastically increase the number of senators. Maybe 6 or 8 from each state? We need to eliminate this dynamic where many states hate their specific moribund senators, yet keep voting them in to avoid losing the "experienced" person.
6. Recall elections by the People, for all executive offices, members of Congress, and Supreme Court justices. (I don't know the best way to square courts carrying out the "rule of law" rather than succumbing to "rule of the fickle mob", but right now we've got the worst of both worlds)
0. Removing the nonsensical doctrines Presidential immunity the Supreme Court has created out of whole cloth, and drastically curtailing all pardon ability with something like requiring the approval of Congress.
(yeesh, I can't believe I forgot that. I started thinking about reforming sovereign immunity, concluded that was something more fine-grained that Congress could do that didn't need to be in the Constitution, and moved on)
Statutorily reduce the power of a rogue president by reinforcing the right of the administrative state to exist with some independence for the rank and file. Reduce conviction threshold in the Senate to 60. Eliminate the electoral college to guarantee the winner of a popular vote is the winner.
Importantly, prosecute every member of the Trump administration for their blatant respective crimes.
I agree with you that the Republican party has failed the country by allowing this to happen. But I think we can still do better.
More "big picture" ideas would be to fundamentally alter the House and Senate, and implement score/ranked voting to allow a multiparty system.